One More Round for Bush vs Gore

[kskiska]

Tuesday, September 16, 2003; Page A01

Just last February, Supreme Court Justice Ruth Bader Ginsburg, a dissenter in the historic 2000 election case that handed victory to President Bush, told a law school audience in San Diego that Bush v. Gore was a "one of a kind case," adding: "I doubt it will ever be cited as precedent by the court on anything."

But yesterday, a three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit essentially declared that the legal fallout of the 2000 case is not so easily contained.

(snip)

If the panel ruling is not reversed by a larger 9th Circuit body, the Supreme Court justices, for whom the stress and strain -- both personal and institutional -- of 2000 is still a fresh memory, will face a choice. They can stay out of the California case and risk permitting what they may view as a debatable interpretation of Bush v. Gore to stand, or they can plunge in and assume the risk that they will once again be criticized for partisanship no matter what they decide.

Bush v. Gore held for the first time that the Constitution's equal protection clause, which protects citizens from arbitrarily disparate treatment at the hands of state authorities, can be applied to the methods states use to tally votes. Previously, election methods had been thought to be mostly the province of state officials.

The court ruled that a statewide manual recount ordered by the Florida Supreme Court to account for uncounted punch-card ballots, many of which were marred by "hanging chads" and the like, would be conducted according to wildly varying rules, making it impossible for the state to treat everyone equally within the short time available.

For the liberal interest groups and lawyers who have been fighting California's recall, Bush v. Gore has mutated from reviled electoral coup to legitimate legal weapon.

more…
http://www.washingtonpost.com/wp-dyn/articles/A16011-2003Sep15.html

[jiacinto]

1. The problem

is that the SC stated that Bush V Gore was a one time case that could not be cited for future precedent.

[pruner]

4. frankly, I've never understood that

it seems that, in effect, they were saying that the Bush v Gore decision was not based in consitutional law… that special circumstances warranted special actions.

how can the court say that a ruling of theirs does not set a precedent. by it's very nature, every decision that SCOTUS renders would seemingly be precedent setting.

[salin]

15. Indeed that clause is what led to much of the arguments against it

as being anything but a political, rather than a judicial ruling.

The supreme court is supposed to be the final arbitor in ruling on the constitutionality of laws and other judicial rulings. When they added a (controversial), unusual disclaimer to Bush v. Gore it set off alarm bells for constitutional scholars and public observers alike. Sooner or later it was inevitable that a ruling would follow that logic.

Clearly the Supreme Court new this (or they would not have put in that 'disclaimer' that made their ruling suspect), and the concerns cited by at least one (I belive two) of the justices that ruled in favor of Bush v. Gore that the Court was now tainted in that all of its rulings would be viewed as political rather than judicial, suggests they knew this would happen. I would guess that those positive but relectant voters on that ruling, who viewed that decision - although they voted for it - as damaging to the institution, would be most inclined to stay away from any other cases of this nature.

[aquart]

5. Well, California just said, "Tough noogies."

Supreme Court decisions are precedents.

Were they giggling when they announced the decision?

[hang a left]

9. that is not what ginsberg said

she said it would "probably" not be cited, my take, is that she is imagining that the SC would not ever be asked or accept such a case again. IMO

[PurityOfEssence]

14. They are not able to make a pronouncement like that

nor did they.

Much as they'd like to, they can't; it's contrary to the tenets of our legal system itself. They said that it shouldn't, but the truth of all precedents is that they're justification for further rulings in similar actions.

They did not say that it "couldn't" because that is not possible in our law when dealing with precedent. Interestingly enough, the very idea of attempting to make an ad hoc edict to suit one's purposes is precisely the style of ruling that the neo-cons like. They don't like the "rule of law", they like the "law of rulers", which is: "I say so, so shut up". They're losers for this and history already mocks them; may they live long enough for the sting of ignominy to chafe their vain hides to torment.

[Robin Hood]

19. Whether they stated it or not is irrelevant. The Genie is out of the bottl

Tough tittie, you made your bed now lie in it.

I also can't believe the whining of the Republicans calling it an obstruction of democracy etc.. Hey!! Get the fuck over it!!

[nothingshocksmeanymore]

2. I love the smell of contradictory opinions by the three terrorists

on the court in the morning...HAHAHAHAHAHAHAHA!

[jiacinto]

3. They won't touch it

They didn't touch the NJ Senate race last year.

[fla nocount]

8. Ah, but the stakes weren't as high.

This will fun to watch. Will "they" tip their hand too soon? Saddam proved that they couldn't play chess. My bets say that they can't play poker either if it involves more than five cards. They need to pray for a great hand with no draws.

[jiacinto]

10. They won't touch it

The SC is out of the elections business.

[salin]

16. I agree

for reasons I state above. There were expressions of regret and concern of permanent (or at least long term damage) to the institution as a result of that vote - by those who voted for Bush in Bush v Gore as well as dissenters. Those justices are not likely to play this game a second time.

[jiacinto]

20. I Agree

They aren't going to touch this case.

[OldCurmudgeon]

11. that was because

it was a matter of issuing an injuction; each SC justice handles a particular region for injunctions (before deciding whether to accept the case).

IIRC, NJ was handled by one of the non-evil SC justices (Breyer?), but Florida was Scalia's territory. So Scalia issued an injuction stopping the counting until he could gin up a way to hand it to Bush.

I don't know who handles CA.

(on edit: minor stuff)

[TahitiNut]

13. Each Justice is assigned a Circuit.

California is in the Ninth Circuit, allotted to Sandra Day O'Connor. New Jersy's in the Third, handled by Souter and FLorida's in the Eleventh, handled by Kennedy.

Here ...

SUPREME COURT OF THE UNITED STATES
Allotment of Justices
It is ordered that the following allotment be made of the Chief Justice and Associate Justices of this Court among the circuits, pursuant to Title 28, United States Code, Section 42, and that such allotment be entered of record, effective September 30, 1994, viz.:

For the District of Columbia Circuit, William H. Rehnquist, Chief Justice.
For the First Circuit, David H. Souter, Associate Justice.
For the Second Circuit, Ruth Bader Ginsburg, Associate Justice.
For the Third Circuit, David H. Souter, Associate Justice.
For the Fourth Circuit, William H. Rehnquist, Chief Justice.
For the Fifth Circuit, Antonin Scalia, Associate Justice.
For the Sixth Circuit, John Paul Stevens, Associate Justice.
For the Seventh Circuit, John Paul Stevens, Associate Justice.
For the Eighth Circuit, Clarence Thomas, Associate Justice.
For the Ninth Circuit, Sandra Day OíConnor, Associate Justice.
For the Tenth Circuit, Stephen Breyer, Associate Justice.
For the Eleventh Circuit, Anthony M. Kennedy, Associate Justice.
For the Federal Circuit, William H. Rehnquist, Chief Justice.

First Circuit: Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island
Second Circuit: Connecticut, New York, and Vermont
Third Circuit: Pennsyvania, New Jersy, Delaware, and the US Virgin Islands.
Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia
Fifth Circuit: Texas, Lousiana, and Mississippi.
Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee
Seventh Circuit: Illinois, Indiana, and Wisconsin
Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
Ninth Circuit: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, and Washington.
Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Eleventh Circuit: Alabama, Florida, and Georgia.

[hang a left]

18. hmmmm interesting Scalia

has the 5th circuit

[dweller]

What comes around

well, you know.


dp

[neuvocat]

6. Here's another link to corroborate:

http://salon.com/news/feature/2003/09/16/court/index1.html

[IndianaGreen]

7. This is such a deliciously karmatic event!

The best part is that the court cited Bush vs. Gore as the precedent for requiring the same voting methodology be used across California.

Let's see what happens when the entire appeals court votes en banc.

While SCOTUS did say in Bush vs. Gore that it could not be used as a precedent, if I remember correctly, that statement was not part of the majority decision itself. This is what the Court did day:

This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.

http://supct.law.cornell.edu/supct/html/00-949.ZPC.html

Clearly, the State of California needs until March 2004 to complete its upgrade of the voting process. To allow this election to proceed will disenfranchise many Californians by virtue of the antiquated and inaccurate voting equipment.

What the Appeals Court has done is to stick it to the Supreme Court using their own rationale for giving the election to Bush. The Supremes would have to grant cert and hear the case, reopening all of the arguments in Bush v. Gore, or they could deny cert, in which case the Appeals Court decision stands and the recall election gets pushed back to March 2004.

Either way the GOP loses.

I love it!

[WhereIsMyFreedom]

12. Don't expect the GOP to just roll over

My first thought was a generous donation of enough Diebold voting machines to cover the rest of the state.

[DoveTurnedHawk]

17. Mmm, Tasty

I mean this is really quite delicious!

DTH