On April 9, the Hamilton County, Ohio Board of Elections asked the U.S. Supreme Court to stay the order of the 6th circuit in the lawsuit over whether certain provisional ballots should be counted, in a November 2010 partisan local judicial race. The Court has asked for a response, to be submitted by Friday, April 15, 4 p.m. The case is Hamilton County Board of Elections v Hunter, 10A989. The Hamilton County Elections Board brief is 17 pages of text, plus 60 pages in which the lower court opinions are attached. It may not load if your computer uses Firefox, but it should load if it uses Explorer.
The brief points out that the 6th circuit decision, and also the U.S. District Court decision (both of which said that the disputed ballots should be counted) both cite Bush v Gore. The brief also points out that election law professor Ned Foley wrote recently that this case is the most significant instance so far in which a lower court has depended on Bush v Gore. Bush v Gore is the famous U.S. Supreme Court decision released on the evening of December 12, 2000, which stopped the Florida presidential recount. Bush v Gore says, “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
The lower courts in the Hamilton County case depended on that language, and ruled that because the county counted some provisional votes in which the voter was not at fault, therefore it must count all the provisional ballots at which the voter was not at fault. The U.S. Supreme Court, in over ten years since Bush v Gore was decided, has never again mentioned that decision. Thanks to Thomas Jones for pointing out this news, and thanks to Scotusblog for the link to the Hamilton County brief.