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Thread: Has Bush v. Gore Become the Case That Must Not Be Named?

  1. #1
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    Has Bush v. Gore Become the Case That Must Not Be Named?

    Has Bush v. Gore Become the Case That Must Not Be Named?

    By ADAM COHEN
    Published: August 15, 2006
    At a law school Supreme Court conference that I attended last fall, there was a panel on “The Rehnquist Court.” No one mentioned Bush v. Gore, the most historic case of William Rehnquist’s time as chief justice, and during the Q. and A. no one asked about it. When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed.

    The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,” government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”

    There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

    Bush v. Gore’s lasting significance is being fought over right now by the Ohio-based United States Court of Appeals for the Sixth Circuit, whose judges disagree not only on what it stands for, but on whether it stands for anything at all. This debate, which has been quietly under way in the courts and academia since 2000, is important both because of what it says about the legitimacy of the courts and because of what Bush v. Gore could represent today. The majority reached its antidemocratic result by reading the equal protection clause in a very pro-democratic way. If Bush v. Gore’s equal protection analysis is integrated into constitutional law, it could make future elections considerably more fair.

    The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. “Having once granted the right to vote on equal terms,” the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.

    The first major judicial test of Bush v. Gore’s legacy came in California in 2003. The N.A.A.C.P., among others, argued that it violated equal protection to make nearly half the state’s voters use old punch-card machines, which, because of problems like dimpled chads, had a significantly higher error rate than more modern machines. A liberal three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed. But that decision was quickly reconsidered en banc —that is, reheard by a larger group of judges on the same court — and reversed. The new panel dispensed with Bush v. Gore in three unilluminating sentences of analysis, clearly finding the whole subject distasteful.

    The dispute in the Sixth Circuit is even sharper. Ohio voters are also challenging a disparity in voting machines, arguing that it violates what the plaintiffs’ lawyer, Daniel Tokaji, an Ohio State University law professor, calls Bush v. Gore’s “broad principle of equal dignity for each voter.” Two of the three judges who heard the case ruled that Ohio’s election system was unconstitutional. But the dissenting judge protested that “we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the peculiar and extraordinary facts of that case.”

    The state of Ohio asked for a rehearing en banc, arguing that Bush v. Gore cannot be used as precedent, and the full Sixth Circuit granted the rehearing. It is likely that the panel decision applying Bush v. Gore to elections will, like the first California decision, soon be undone.

    There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.

    The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.

    There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.

    http://www.nytimes.com/2006/08/15/opinion/15tues4.html

  2. #2
    flushingjet
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    And the Florida Supreme Court refusing to honor an honest count wasn't partisan?

    And the "expert" who lied, er, testified that high speed punch card
    counters weren't accurate was correct-despite worldwide banks and financial
    institutions successfully using them for decades without suffering
    fraud and losses

    What did the press find out about the votes when they went back
    to count them-no prizes for the correct guess
    http://www.nytimes.com/2001/11/12/po...c8e4b9&ei=5070

    http://en.wikipedia.org/wiki/Florida_recount

    Like Hezbollah sympathisers say about 9-11 & the Holocaust-
    "Come on, get over it"
    Last edited by flushingjet; 08-15-2006 at 11:08 AM.

  3. #3
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    Who needs to move on?

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    The point of the article was not what the outcome of a recount would have been. It was the power reach of the 5 justices to find law to give them their desired outcome and then say, "Oh by the way this only counts to this case and not to other cases." That's not the way the justice system in our country is supposed to work.

    As stated:
    There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

  5. #5
    flushingjet
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    Quote Originally Posted by Queens Jet Fan
    The point of the article was not what the outcome of a recount would have been. It was the power reach of the 5 justices to find law to give them their desired outcome and then say, "Oh by the way this only counts to this case and not to other cases." That's not the way the justice system in our country is supposed to work.

    As stated:
    Our country is a big bag full of contradictions.

    We have a 1st Amendment clearly delineating free speech
    Yet we have "Campaign Finance Reform"

    We have another amendment clearly stating equal protection under the law
    Yet affirmative action and abortion shreds some peoples rights in favor
    of others - ancient equal protection rights, huh?

  6. #6
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    The decision in Bush v Gore was absolutely correct, legally speaking. Sorry Queens - you need to get over it. This is getting pathetic.

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    Quote Originally Posted by jets5ever
    The decision in Bush v Gore was absolutely correct, legally speaking. Sorry Queens - you need to get over it. This is getting pathetic.
    I know you are a lawyer George and I am not but with all due respect I don't think that you are the outstanding scholar on this decision. It has been studied by the leading legal minds of our day and there is no consensus on this matter which I believe makes your assertion that it was absolutely correct legally speaking hard to agree with.

    Call it pathetic but when 5 Justices of the SC make a decision on who is to be President and then say don't go by the precedent of this decision that is on outrage.

    Scalia, yourself and others telling people who don't like this decision to get over it is insulting and not in the spirit of intellectual freedom and open debate.

    Get over it. This decision and it's after affects will not go away and it's stink permeates.

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    Quote Originally Posted by Queens Jet Fan
    I know you are a lawyer George and I am not but with all due respect I don't think that you are the outstanding scholar on this decision. It has been studied by the leading legal minds of our day and there is no consensus on this matter which I believe makes your assertion that it was absolutely correct legally speaking hard to agree with.

    Call it pathetic but when 5 Justices of the SC make a decision on who is to be President and then say don't go by the precedent of this decision that is on outrage.

    Scalia, yourself and others telling people who don't like this decision to get over it is insulting and not in the spirit of intellectual freedom and open debate.

    Get over it. This decision and it's after affects will not go away and it's stink permeates.
    You are so dramatic. Find me one single decision that is unanimously supported across all "legal minds"...just one! Lawyers argue, that's what they do!

    The 5 justices did NOT make s decision on who is to be president. That is ignorant dribble. A statement like that implies that it's not even worth talking to you about this because you don't even know what you are talking about, instead you rely on summaries from other people.

    You are free to whine and I free to tell you to get over it when you whine. I am not doing anything to your "intellectual freedom" dude, you simply are a victim here in your own mind. People have been telling anti-abortionists to get over Roe for 30 years, even though most "legal minds" agree that that decision was horrible, legally-speaking, as well as morally-speaking.

    You don't like Bush and you don't like Scalia, you don't know anything about law and you are pissed off. I can appreciate that. But honestly, you need to get over it. You need to "MoveOn."

  9. #9
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    Well the very fact that leading scholars are rarely unanymous makes your assertion that this was the correct legal decision just your opinion and nothing else, and makes this decision something that can still be discussed and debated as cases are coming up based on the priniciples outlined.

    Ask yourself George if politics had anything at all to do with this decision. Ask yourself if Gore was ahead by 500 votes and there was a recount in progress if the same Justices on this Court would have ruled the same way.

    I think that if you were honest with yourself you would say that in those circumstances the Supreme Court never would have interfered.

    Can you also comment on this?
    But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.
    That was the whole point of my post. Not for just abolute statements how the decision was correct and to get over it but to have a discusion on how this decision complies with the doctrine of stare decisis, and how moving forward current election disputes should be looked at.

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