This, on the other hand, is trying to declare that because some jurisdictions (which just happen to be the most-reliably Democratic ones) still use punch-card ballots (which are still legal in California), those ballots are by definition treated differently because they realize they can't gin up enough "no" votes to save Gray-Out Davis and they fear they can't gin up enough votes for Bustamonte to get him in in that eventuality.
I am well-aware of the varying interpretations of Bush v Gore and have alluded to that in several ways [inconsistent lower court rulings; the novelty of the relevant case law]. Quite frankly, this is not a "nice try" rhetorical game... The Supreme Court will rule however it sees fit and playing volleyball over the details is a waste of energy. I stated by view which is consistent with that of many interpretations; yours is consistent with other interpretations and may prove more accurate.
In the end, the 'politics' of the Supreme Court will play just as much role as the particulars of the case law. Don't be surprised in the slightest if the SCOTUS issues a summary affirmation and skips this issue altogether. This Supreme Court has never evidenced the slightest hesitation to influence the political process, whether by action or by inaction as the case may be...
Remember all the oh-so-well-constructed word game arguments over why the Supreme Court was going to reverse the New Jersey court on the Torricelli-Lautenburg substitution? Odds favor the SCOTUS taking a pass. That's my final answer...