Bush concerned the Florida ballot recounts in the 2000 Presidential election. The Court did not articulate a standard of review in this case. It merely said that a State may not value one person's right to vote over another via “arbitrary and disparate treatment.”
531 U.S. at 104–05, 121 S.Ct. 525. While this language connotes a more lenient test akin to rational basis, the Court cited to
Harper and
Reynolds when discussing this standard. Though
Reynolds does not provide a clear standard,
Harper adopts a standard of at least intermediate, and possible, strict scrutiny. Thus, it appears that perhaps the Court was using a heightened standard of scrutiny but also was finding the Florida recounts to be arbitrary and discriminatory.