Bush v. Gore: Alive and Well

[Stephen Maturin]

Remember when the Supreme Court ended the 2000 U.S. presidential election with its decision in Bush v. Gore? Remember the claims in the per curiam opinion that the recounts ordered by the Florida Supreme Court violated the Equal Protection Clause because different standards for determining voter intent would be applied in different counties? Remember how the Court tried to limit its holding to the specific facts of that case? Remember how we laughed and laughed and predicted that one day the holding of Bush would support a successful challenge to state's voting system because different counties use different machines with different error rates? Well, that prediction is now one step closer to realization.

In 2002, a group of Ohio voters filed suit in federal court against the Ohio Secretary of State, raving fundy and right-wing nutburger Ken Blackwell, arguing that use of unreliable and inaccurate voting methods such as punch card machines in some counties but not others violated the Equal Protection Clause. They also asserted that use of punch card machines in certain counties violated the Voting Rights Act because of a disparate and adverse impact on black voters.

The trial judge threw out the case via summary judgment. A few days back, a panel of the U.S. Court of Appeals for the Sixth Circuit reinstated the case by a vote of 2-1. The majority relied on a lot of SCOTUS cases in support of its decision, including Bush. Among other things, the majority said:

We also note that the dissent begins by criticizing our “reliance on the Supreme Court’s murky decision in Bush v. Gore.” Dis. Op. at 32. Murky, transparent, illegitimate, right, wrong, big, tall, short or small; regardless of the adjective one might use to describe the decision, the proper noun that precedes it — “Supreme Court” — carries more weight with us. Whatever else Bush v. Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.

So much for the Court's flaccid attempt to liimit the effects of its holding. This Ohio case has a long way to go, of course, but I'd dearly love to see Bush v. Gore pounded violently up some Republican ass.

[ms_ann_thrope]

Originally Posted by Stephen Maturin

This Ohio case has a long way to go, of course, but I'd dearly love to see Bush v. Gore pounded violently up some Republican ass.

Just imagine all of the santorum that would result!

[D. Scarlatti]

Did you see this part:

Finally, we reject the dissent’s claim that Professor Hasen’s [Florida State University law review] article has overruled the Supreme Court’s decision in Bush v. Gore because "the Supreme Court has had ample opportunity to prove him wrong by explaining, or even citing to, its decision in Bush v. Gore." Dis. Op. at 37. If the dissent were correct, perhaps the same must be said about the hundreds of other law review articles discussing the decision’s legitimacy and applicability to other factual scenarios. The Court has not sought to debate these other law professors and commentators and under the dissent’s reasoning, those articles must also be correct. In fact, taken to its logical extreme, the dissent’s reasoning means that every claim in a law review article that the Supreme Court has failed to refute is actually the law of the land. Thus, we find the dissent’s claim that Bush v. Gore has no precedential value because the Court has not sought to "prove [Professor Hasen] wrong" empty.

Stewart v. Blackwell (.pdf 47 pages).

Interesting stuff, in light of the numerous discussions we've had about judicial precedent around here.*

* I challenge anyone to find another general interest discussion board that addresses the topic of legal authority as often as this one does, or addresses it at all.

[Stephen Maturin]

Originally Posted by D. Scarlatti

Stewart v. Blackwell (.pdf 47 pages).

Thanks! I was so giddy over the decision itself that I forgot to provide the link.

Originally Posted by D. Scarlatti

* I challenge anyone to find another general interest discussion board that addresses the topic of legal authority as often as this one does, or addresses it at all.

Fuckin' A. In fact, you'd likely be hard pressed to find that much mandatory-persuasive, primary-secondary, horizontal-verticle discussion on law.com.

[Stephen Maturin]

Well, well, well! Professor Richard Hasen, whose law review article gets a lot of attention from both sides of the Ohio case, has posted his own discussion of the Sixth Circuit case on his election law blog. He seems to be saying -- diplomatically, of course -- that the dissent is full of shit.

[D. Scarlatti]

As a matter of general principle, I wouldn't oppose the overruling of Supreme Court decisions by law review articles (so long as they were written by professional legal scholars and not 2L members of the Federalist Society) if it weren't for the existence of the Regent University Law Review.*

I'm sure I've yelled "Jesus Christ!" at some proposition or other contained in a Regent University Law Review article, but I'm certain it wasn't the sort of "Shout Out to The Lord!" its authors intended.

* And presumably the recently accredited Liberty University Law Review. Gah.

[Stephen Maturin]

Originally Posted by D. Scarlatti

. . . recently accredited . . .

Eww. Hadn't heard that. [Taggart]I am depressed.[/Taggart]