Diluting the Vote:
The Irony of Bush v. Gore

Mary Frances Berry

The United States Supreme Court decision resolving the 2000 election in favor of George W. Bush has been praised and derided by commentators. Those who—believing that the Florida Supreme Court was culpable and that Albert Gore Jr. was trying to steal the election—wanted the Court to stop the recount may be pleased. A report commissioned by the television network CNN concluded that CNN itself was partly responsible for the impression that Gore was a culprit by the way it presented the election.1 Those who believe that they were disenfranchised and that Bush stole the election using five justices appointed during the Reagan and George Bush administrations may still be displeased.	1
Constitutional lawyers of every political persuasion are still busily trying to rationalize the Supreme Court's decision. Most agree that the Court has, as Chief Justice Charles Evans Hughes warned in another context, suffered a self-inflicted wound because of the political nature of its decision and the makeup of the narrow 5-4 majority.2 An apter chief justice might have avoided entanglement altogether or molded unanimity in one direction or the other. Supreme Court justices played a major role in another election, that of 1876, in which the rights of blacks were a footnote, compromised away along with other issues in giving the presidency to "his fraudulency," Rutherford B. Hayes.3 In the 2000 election likewise, hostility to the civil rights of African Americans seems a mere footnote in the Court's decision giving the election to George W. Bush. But the unabashed activism of the Bush v. Gore majority and their deviation from their usual approach of deferring to state supreme courts give pause.	2
This essay considers Bush v. Gore in the context of the history of Supreme Court decisions concerning the civil rights of African Americans, with a focus on voting rights jurisprudence.4 The analysis leads to the conclusion that the decision in Bush v. Gore has, as an unstated premise, the deep hostility toward a race-conscious approach to remedying the complaints of African Americans and other people of color already displayed by the same 5-4 majority in the current court. The decision was not just an end point to the 2000 presidential election, but an overt expression of how equal protection has become a snare and a delusion for African Americans in the current court.	3
The court's approach to the constitutionality of voting procedures and practices in Florida contrasts with its willingness to cut away at protection for the civil rights of Latino and African American voters under the Voting Rights Act of 1965 and the Fourteenth and Fifteenth amendments. I also take note of the Court's restriction of the analysis in Bush v. Gore to that case, thus depriving any other litigants of the benefit of its analysis. The result is to use the equal protection clause of the Fourteenth Amendment to accomplish a political electoral result while continuing to disable it in cases involving African Americans and other people of color.	. . .