Justice Thomas Cites The Bush v. Gore “Unprecedent” in Arizona Dissent

June 17th, 2013

In his dissent in Arizona v. Inter Tribal Council of Ariz., Inc., Justice Thomas did what wasn’t supposed to be done. He cited Bush v. Gore in footnote 2.

It is, thus, difficult to maintain that the Times, Places and Manner Clause gives Congress power beyond regulating the casting of ballots and related activities, even as a matter of precedent.2

2 Article I, §§2 and 4, and the Seventeenth Amendment concern congressional elections. The NVRA’s “accept and use” requirement applies to all federal elections, even presidential elections. See §1973gg– 4(a)(1). This Court has recognized, however, that “the state legislature’s power to select the manner for appointing [presidential] electors is plenary; it may, if it chooses, select the electors itself.” Bush v. Gore, 531 U. S. 98, 104 (2000) (per curiam) (citing U. S. Const., Art. II, §1, and McPherson v. Blacker, 146 U. S. 1, 35 (1892)). As late as 1824, six State Legislatures chose electoral college delegates, and South Carolina continued to follow this model through the 1860 election. 1 Guide to U. S. Elections 821 (6th ed. 2010). Legislatures in Florida in 1868 and Colorado in 1876 chose delegates, id., at 822, and in recent memory, the Florida Legislature in 2000 convened a special session to consider how to allocate its 25 electoral votes if the winner of the popular vote was not determined in time for delegates to participate in the electoral college, see James, Election 2000: Florida Legislature Faces Own Disputes over Electors, Wall Street Journal, Dec. 11, 2000, p. A16, though it ultimately took no action. See Florida’s Senate Adjourns Without Naming Electors, Wall Street Journal, Dec. 15, 2000, p. A6. Constitutional avoidance is especially appropriate in this area because the NVRA purports to regulate presidential elections, an area over which the Constitution gives Congress no authority whatsoever

I have previously called Bush v. Gore an “unprecedent.” Because the Court made it clear that this case should not be cited to govern any other case.

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

A quick Westlaw search reveals that this is the *first* time any Justice has actually cited Bush v. Gore. A law review article by Rick Hasen with “Bush v. Gore” in the title is cited in Citizens United.

Notably, no one else joined Justice Thomas’s dissent.

H/T Derek Muller

Update: Thanks for the link TPM.