s skippy the bush kangaroo

skippy the bush kangaroo

Wednesday, September 17, 2003

a cite for sore eyes

our reader kilroi thoughtfully points out in our musing over the 9th circuit's decision in the california recall:

not so fast skippy. the bush v. gore decision stated that florida couldn't keep recounting until gore somehow obtained enough votes to win. the 9th is trying to stop a state constitutionally mandated election on the premise that the very same machines used to elect grey(out) davis 11 months ago are now all of a sudden aren't adequate to un-elect him prior to there even being a problem. it will be overturned and rightly so. and if anti bush crybabies want to keep shedding tears over gores attempted highjacking of the 2000 election, so be it.

be that as it may, this crybaby wants to point out that the legal precedent set to prove whatever point bush v. gore was trying to prove (in your stated case, that gore couldn't keep counting), the logic used and conclusion arrived at is grist for the legal mill; to wit, the application of the equal protection clause in vote tablulation.

the washpost posits:

now the 9th circuiters have called bill rehnquist's bluff. did he really mean all that stuff about extending the equal protection clause to voters who stood a greater chance to be disenfranchised by the absence of a uniform standard of counting votes? was he really concerned about the tabulation disparities between one county and the next? or was bush v. gore just a one-time-only decision crafted to elect a republican president?

"plaintiffs' claim presents almost precisely the same issue as the court considered in bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the equal protection clause," the three judges wrote. "in bush, the supreme court held that using different standards for counting votes in different counties across florida violated the equal protection clause."

and the tallahassee democrat weighs in:

when the supreme court released the opinion in bush v. gore, many lawyers here in tallahassee were scratching their heads wondering how the federal government could possibly order a state to stop its recount, especially under the guise of securing the equal-protection clause of the constitution. many cynical observers assumed that the majority opinion in bush v. gore used specious logic to justify a republican victory, a ruling that was highly specific to election 2000. even justice ginsburg, who dissented from that opinion, said as recently as february 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 here it is again rearing its ugly head. bush v. gore held for the first time that the constitution's equal-protection clause, which protects citizens from arbitrarily disparate treatment by state authorities, can be applied to the methods states use to tally votes. previously, election methods had been the province of state officials. but now, with election 2000 as a precedent, previous election methods have been called into question and opponents of the recall effort have been able to magically transform bush v. gore from a reviled coup into a legitimate weapon. it's like when the democrats picked up seats in 1998 because newt gingrich and the impeachment chorus had become so crazed.

so, kilroi, however your rightist mind desperately wants to see the two cases as different, precedents can be cited, and what is good for suing the goose is good for suing the gander.

the 9th circuit may indeed reverse itself, as the full court is reviewing the three-member panel decision today, or the case may go back up to awol's daddy's friends, the supremes, and they may reverse the decision, thus opening themselves up to accusations of blatant partisanship.

but once a decision is handed down, it can be used in further arguments. don't complain to us. call judge judy.
posted by skippy at 9:12 AM |


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