ACLU: Democratic Victory Renders Election Law Claims Moot

OK, that’s not precisely how they put it, but this letter ending a major dispute over voting machines in Ohio would not have been written if the plaintiffs had any reason to claim that the just-completed election showed evidence of disenfranchisement. (H/t).
Which is sort of a shame – the underlying Sixth Circuit decision, if appealed to the Supreme Court, could have given the Court the opportunity to clarify a point I always thought was implicit but not properly explained in Bush v. Gore (see here, here and here): that the real risk of unequal protection of the law was not the existence of differing standards for vote-counting but rather the use of a standardless post hoc, non-statutory judicial remedy devised only after the election (and by an appellate court, no less, reversing the judgment of the trial court and overturning the pre-litigationstatus quo). In short, what the Court in practical effect did was to apply a heightened level of scrutiny to judicial remedies in election law cases filed after the election has taken place and not based on neutral rules laid down before the voting was done.