Although African Americans cast a majority of ballots rejected by counting machines following the 2000 presidential election in Florida, legal academic commentators have not grappled with the significance of race in their discussions of Bush v. Gore. This Essay uses race to expose structural shortcomings of merit-based assumptions about democracy embedded in the U.S. Supreme Court's majority per curiam. The Court prohibited a manual count of imperfectly marked ballots, effectively conditioning membership in political community on individual capacity to produce a machine-readable ballot. Despite the Court's individualized focus, however, merit-based assumptions about democracy 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, 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. While the merit-based vision's adverse impact on African Americans should prompt concern in and of itself, the shortcomings of the vision adversely impact many other Americans.
Spencer Overton, A Place at the Table: Bush v. Gore Through the Lens of Race, 29 Fla. St. U. L. Rev. 469 (2001).