Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  16 that listed presidential candidates on two separate pages. 28 Moreo- ver, these county-to-county disparities in presidential undervotes and overvotes were correlated with race; heavily black precincts across Florida were more likely to use antiquated voting equipment, which substantially increased the chances of ballots failing to register a vote in the presidential election. 29 One principal objective of the court- -ordered manual recount in Florida was the amelioration of these other inequalities that resulted from the use of disparate voting tech- nologies in different counties. 30 Yet, the Bush majority does not deign to explain why these other ostensible equal protection problems do not invalidate the entire Florida presidential election vote (or, for that matter, the entire nationwide presidential election, given that other states exhibit the same lack of uniformity in the way they conduct presidential elections). 31 All the majority says with regard to these seemingly analogous equal protection difficulties is that its holding is limited to “the special instance of a statewide recount under the au- thority of a single state judicial officer” 32 and that “[t]he question befo- re the Court is not whether local entities, in the exercise of their ex- pertise, may develop different systems for implementing elections.” 33 Why was that question not before the Court? Well, because “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” 34 So much for the requirement that courts engage in “reasoned elaboration.” 35 No interpretation of the Equal Protection 28 See, e.g., Dan Keating, “Democrats Had Most Voided Votes in Fla.,” Washington Post , Jan. 27, 2001, A1; Theodore M. Porter, “It’s Not in the Numbers,” Washington Post , Nov. 26, 2000, B1. See also Jeffrey Rosen, “Speed Kills Misjudge,” New Republic , Nov. 27, 2000, 17 (noting that Bush’s equal protection argument would render the butterfly ballot uncon- stitutional). 29 See John Mintz, “Florida Ballot Spoilage Likelier for Blacks,” Washington Post , Dec. 3, 2000, A1; David Montgomery, “Simmering Election Anger Incites Rights Leaders,” Washington Post , Jan. 5, 2001, A10; see also Keating, supra note __ (noting that Republican-leaning counties were more likely to use modern vote-counting technology that reduces the likeli- hood of overvotes by alerting voters of the problem before they have left the voting booth). 30 See Bush , slip opinion at 3-4 (Breyer, J., dissenting); see also Rosen, supra note __ (“By preventing states from correct- ing the counting errors that result from different voting technologies, the conservatives have precipitated a violation of equal treatment far larger than the one they claim to avoid.”) 31 See, e.g., Savage & Weinstein, supra note __ (quoting law professor David Cole to the effect that the majority’s equal protection rationale means that “every state electoral system in the country is in violation,” and reporting law professor Pamela Karlan making a similar point). 32 Bush , slip opinion at 10. 33 Id. at 11. 34 Bush , slip opinion at 10-11. 35 For this notion, see, e.g., Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and