Abstracted from: Spencer Overton, A Place at the
Table: Bush V. Gore Through the Lens of Race, 29 Florida State
University Law Review 469-492, 469-473 (Bush v. Gore Issue 2001)(81
In the 2000 presidential election, African Americans made up only 16%
of the voting population in Florida but cast 54% of the ballots rejected
in automatic machine counts ("machine-rejected ballots").
Across the state, automatic machines rejected 14.4% of the ballots cast
by African Americans, but only 1.6% of the ballots cast by others.
Racial disparities appeared even when the same voting technology was
used. For example, counting machines rejected punch card ballots in
predominantly African-American precincts in Miami-Dade County at twice
the rate they rejected ballots in predominantly Latino precincts, and
four times the rate they rejected ballots in predominantly white
In their discussions of Bush v. Gore, legal academic commentators
have not grappled with the significance of the racial disparities
reflected in machine-rejected ballots. Despite the fact that the U.S.
Supreme Court permanently halted the manual count of these ballots,
doctrinal analysis employing the facts as framed by the Justices has, by
and large, commanded the most attention.
Without a consideration of race, however, the conversation about Bush
v. Gore remains woefully incomplete. Politics and race in the United
States have characteristics that sometimes overlap. Issues of racial
identity and racial differences necessarily evoke questions of
representation in the political process, particularly among groups that
have been historically excluded. Because of the unique role of race in
American politics, an examination of race yields important insights that
might otherwise go unnoticed.
While this short Essay does not comprehensively analyze all of the
components of race in Bush v. Gore, the piece does use race to address
normative assumptions about democracy embedded in the opinion. The use
of a racial framework shows how these assumptions adversely impact
racial minorities and other Americans as well. Professor Briffault
acknowledges that the five U.S. Supreme Court Justices who voted to
discontinue manual counting of the ballots in Bush v. Gore deviated from
the Court's trend of including previously excluded groups in the
political process. In a similar spirit, Professor Hasen asserts that
Bush v. Gore's break from past cases may "ease the way for future
Supreme Court majorities to pursue their own visions of political
equality without much thought about whether that vision is supported by
existing case law." This Essay agrees with Professors Briffault and
Hasen to the extent that they suggest that Bush v. Gore rejected more
inclusionary assumptions about democracy articulated in earlier cases,
but also asserts that the Court embraced merit-based assumptions that
conditioned political recognition on an individual voter's capacity to
produce a machine-readable ballot. The use of race reveals how both the
focus on individual responsibility and the expressive harm of exclusion
that accompany the merit-based vision pose unique problems in the
context of voting.
Though some might argue that taking race into consideration is
inappropriate in a "colorblind" society, a consideration of
race need not entail the employment of a "race card" that
trumps all other concerns and singularly insists on race-specific
solutions. Instead, just as decisionmakers balance such concerns as
individual rights, economic efficiency, and general welfare, race can be
used as one analytical tool to be considered in conjunction with other
factors. Some might assert that race is irrelevant to an analysis of the
machine-rejected ballots, preferring instead to attribute responsibility
to voter inexperience, voter illiteracy, and substandard voting
equipment in particular jurisdictions. These explanations, however, are
not pre-political or randomly distributed throughout society but
disproportionately impact certain populations due in part to past
state-sponsored racial discrimination. A consideration of race allows
scholars and legal decisionmakers to avoid the pitfalls of the
"color-blind card," an ideological extreme that mechanically
trumps historical considerations, silences discussion, removes relevant
issues from the table, and ignores important problems.
Part I of this Essay reviews two opposing visions of democracy that
emerged in Bush v. Gore. The Florida Supreme Court's more inclusionary
vision prompted it to order that the ballots rejected by machines be
counted manually, while the U.S. Supreme Court's more merit-based vision
motivated it to prohibit a manual count of the imperfectly marked
Part II uses race to reveal many of the shortcomings of the
merit-based vision of democracy. Although the Court's facially neutral,
merit-based criteria focus on individual responsibility, they interfere
primarily not with individual rights, but with the ability of groups of
voters like African Americans to identify with one another as a
political community, to create alliances with others of different
backgrounds, and to use the vote to enact political change. Further, the
lens of race exposes how merit-based criteria convey an expressive harm
of exclusion that carries particular potency in light of a history of
poll taxes, literacy tests, and other devices used to suppress political
participation by African Americans.
While the merit-based vision's adverse impact on African Americans
should prompt concern in and of itself, Part III explores how the
shortcomings of the merit-based vision adversely impact other Americans.
Cf. Langston Hughes, I, Too, in THE NORTON ANTHOLOGY OF AFRICAN
AMERICAN LITERATURE 1258 (Henry Louis Gates Jr. & Nellie Y. McKay
eds., 1997) ("I am the darker brother. They send me to eat in the
kitchen when company comes .... Tomorrow, I'll be at the table when
company comes. Nobody'll dare say to me, 'Eat in the kitchen,' then ....
I, too, am America.").
Acting Professor of Law, University of California, Davis.