Bush v. Gore Redux?

March 24, 2009 |  Tagged , , , | Comments Off on Bush v. Gore Redux?

So, that Minnesota Senate recount nonsense still isn’t resolved.  The word on the street is that Norm Coleman (or his wily lawyers, to be more accurate) is going to try to invoke the Supreme Court’s decision in Bush v. Gore to win his legal challenge against Al Franken.  It isn’t exactly clear what a “win” would be at this point, but it seems as if the Coleman camp is looking for the judiciary to throw up its arms in exasperation and demand a re-vote.  If Coleman were to take his case up to the Supreme Court, would this disposition be achievable under Bush v. Gore?

It might be.  There were two main holdings in Bush v. Gore: the first stated that it is a violation of the Equal Protection clause when different standards of review are used to count votes in a state-wide recount.  The second holding stated that the Florida legislature intended to establish December 12 as a “safe harbor” deadline for recounts to be completed, and that given the “substantial additional work” that was necessary to establish and implement a constitutional method for recounting ballots, there was no way that the Court could announce new standards and have Florida initiate and complete a constitutional recount by that date (after all, the opinion was announced on December 12).  In addition, there was a little procedural note: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  So what does this all mean for Coleman?

It isn’t quite clear what this precedential note means.  I suppose it means that the Court did not want to adopt sweeping new rules and standards for electoral recounts; that recount cases are best dealt with on a case-by-case basis.  Even if it means that Bush v. Gore has no precedential value whatsoever, the Court is still likely to be sympathetic to Coleman’s Equal Protection claim (after all, the vote was 7-2 in favor of that holding).  While I am certainly not an expert on Minnesota election law, it seems as if there is no “safe harbor” deadline for Senate elections in Minnesota.  So, the Court would not be restricted by time in fashioning an appropriate remedy as it was in Bush v. Gore.  Coleman’s best bet at this point is not to have a well-regulated recount, but to have a brand spankin’ new election.  While I guess that is feasible, it seems rather unlikely.  If the Supreme Court were to eventually hear this case, they would be under a microscope, and really, ordering a new election when your guy loses seems much more corrupt than halting a recount when your guy wins.  And as much as I didn’t like the result of Bush v. Gore, there was a somewhat reasonable basis for that ruling.  Here, Coleman’s argument in favor of a new election instead of a better-regulated recount seems to be “It’s only 225 votes!  Come on!”

I don’t know about you or SCOTUS, but I don’t find that particularly compelling.

Photo courtesy of Flickr user KCivey.

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