September 16, 2003


One More Round For Bush v. Gore (Charles Lane, September 16, 2003, Washington Post)

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. [...]

But others say both the recall's opponents and the 9th Circuit panel -- made up of three of that left-leaning court's most liberal members -- have misinterpreted Bush v. Gore.

For all its conclusive impact on the Florida recount, the Supreme Court's majority opinion ended on a note of ambivalence.

Protesting that their involvement was an "unsought responsibility," the majority -- made up of Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- said the decision was "limited to the present circumstances."

The 9th Circuit panel just blew by that admonition, some legal analysts say.

"It over-read Bush v. Gore a little bit," said Vikram Amar, a professor of law at the University of California Hastings College of Law in San Francisco. "You can't say it's quite identical, because Bush v. Gore involved manual recounts, not machine mistakes. In 2000, the Supreme Court was worried that standardless criteria allowed individuals to manipulate results, and that may be worse constitutionally than machine errors skewing the result."

Bruce Ackerman, of all people, was on NPR and was just withering in his contempt for the ruling, despite having argued for Gore in 2000. One thing seems certain, the Supreme Court majority from that earlier case will be eager to rule that it has no bearing on this or any other case. It was a one-off.

Posted by Orrin Judd at September 16, 2003 5:14 PM

Exactly, that's why I think that either the 9th Circuit sitting _en banc_ or SCOTUS will reverse. It appears that that panel of three judges was so eager to score a point on the mean old GOP and hoist the evil conservatives with their own petard that they blithely ignored the Supremes' exact words saying that _Bush v. Gore_ was not intended to be applied to any other case.

Posted by: Joe at September 16, 2003 5:51 PM

That's not the only legal principle they ignored. The Supreme Court in Bush v Gore wasn't delaying or altering an election. To find a suitable parallel to the 9th Circuit ruling, imagine if a Republican judge in October 2004 ruled that the November 2004 presidential election would have to be postponed until uniform nationwide standards for balloting machines had been implemented, and if that took 20 years, George Bush would just have to be president for another 20 years. This takes the equal protection clause to the point of lawlessness.

Posted by: pj at September 16, 2003 8:55 PM

Yeah, but on what basis will SCOTUS overturn? Or, more accurately, hear the case?

I think the 9th circuit en banc WILL UPHOLD the panel of three.

What was the great line by Thomas Sowell about this appellate court?: They think the Constitution is unconstitutional.


Posted by: SteveMG at September 16, 2003 10:32 PM

Those machines were just fine to ELECT Davis.
What's the beef now ? And, would the '06 election have been held up, if the machines were still in place ?
When were they planning to announce that ?

Posted by: Michael Herdegen at September 17, 2003 5:54 AM