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How the Bush v. Gore Decision Could Factor Into This Close Virginia Race

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  • How the Bush v. Gore Decision Could Factor Into This Close Virginia Race

    How the Bush v. Gore Decision Could Factor Into This Close Virginia Race





    All the votes from the November 5 election have been tabulated and the attorney general race is as close as they come. Democrat Mark Herring holds a slim 164-vote lead over his Republican opponent, Mark Obenshain. The close count has teed up a likely recount for next month, and the Republican candidate has hinted at an unusual legal strategy: basing a lawsuit on Bush v. Gore, the controversial Supreme Court decision that ended the 2000 presidential election in George W. Bush's favor.

    The Supreme Court usually prides itself on respecting the past while keeping an eye toward future legal precedent. But the court treaded lightly when they intervened in 2000. The five conservative justices may have handed the election to Bush, but they tried to ensure that their decision would lack wider ramifications. “Our consideration is limited to the present circumstances," read the majority opinion in Bush v. Gore, "for the problem of equal protection in election processes generally presents many complexities.” The conservative majority wanted to put a stop to the Florida recount, but they hoped their ruling—which extended the Fourteenth Amendment's equal protection clause to argue that different standards cannot be used to count votes from different counties—wouldn't set precedent in future cases.

    For a time the justices got their wish. But the supposed one-time logic of the controversial decision has begun to gain acceptance in the legal community—particularly among campaign lawyers in contentious elections.

    Virginia GOP attorney Miller Baker challenged the attorney general results on Bush v. Gore grounds last week during a meeting of the Fairfax County electoral board, claiming the rest of the state lacked equal protection thanks to the county's method for tabulating votes. The problem stems from a swath of uncounted provisional ballots in the region. Obenshain had led Herring after initial election-night results, but the Democrat closed the gap thanks to some misplaced votes in a reliably blue section of Fairfax County, a DC suburb. The Republican-dominated state Board of Elections then demanded that Fairfax change its procedure for provisional ballots midway through counting. But even after the changes, Fairfax still afforded residents several extra days to advocate on provisional ballots compared to the rest of the state. (Other counties had until the Friday after the election, while Fairfax allowed votes to be counted until the following Tuesday.)

    Obenshain issued a statement last week that left his options open and mentioned the need for "uniform rules," which election law expert Rick Hasen interpreted as a sign that the Republican is gearing up for a lawsuit that would base its challenge on Bush v. Gore.

    If Obenshain does file a lawsuit using that reasoning, he will be just the latest politician to facilitate the recent rehabilitation of Bush v. Gore. Surprisingly, the court case that anointed George W. Bush president has actually favored liberals in terms of setting legal precedent. "The courts have looked around for some legal authority for the proposition that there is an important federal right to participate in federal elections," says Samuel Issacharoff, a professor at New York University School of Law who has studied the aftermath of Bush v. Gore, "and the problem they have is that the constitution doesn't specify this."

    The specific set of circumstances of the 2000 election may have worked against liberals, but the decision's line of reasoning aligns with a standard progressive value: despite no explicit guarantee of fair elections in the Constitution, the state has an inherent interest in guaranteeing that political actors cannot arbitrarily change election procedures to value one set of voters over another group. "What the courts have done is they've looked for a proposition that you can't manipulate the rules of the election to determine the outcome," Issacharoff says. "You can't keep people from voting in order to do that. You can't make post-hoc changes in a way that takes advantage of your incumbent power to influence the outcome of an election. That's seemingly such a basic proposition that every other democracy builds it in, hardwired. We have a very old democracy, in which our constitution doesn't speak to these issues directly."
    "There are four lights!"

  • #2
    I haven't followed this one at all, indeed I have been barely cognizant of it, but if the election board changed the rules in the middle of the game without some real good reason, then it seems to me that needs to be reversed. I can understand making accommodations if an earthquake strikes in the middle of an election or something like that, but absent some sort of pretty serious disaster/problem that could not have been averted, it seems simple and reasonable enough to me that everyone gets one set of rules to play by well in advance of the actual election and then you go with that, and everyone plays by the same set of rules. If we can manage to do that in football and baseball and whatnot, it shouldn't be that hard for elections.



    On a side note: howinahell do people keep "finding" ballots? By definition, that means that someone "lost" ballots, and I cannot fathom any valid reason why this should happen in any election, again absent some disaster that no one could have predicted/prevented. If the polling place catches fire on election day because of some electrical fault or something, OK. That's an understandable reason for ballots to get misplaced, lost, destroyed, whatever. That sort of situation really sucks and accommodations should be made for that. But when boxes of ballots turn up in the trunk of some poll worker's car three days after the election, I'm pretty inclined to think that something hinky is going on. I mean, it's just not that hard: people vote, you put the ballots in some sort of lock box, and that box is taken to where ever it is that the votes are counted. This really does not require a Ph.D. to accomplish.
    Bask in the warmth of the Deep South
    No one will be denied:
    Big law suits and bathroom toots;
    We're all getting Dixie-fried.
    But somewhere Hank and Lefty
    Are rollin' in their graves
    While kudzu vines grow over signs that read "Jesus Saves."

    Comment


    • #3
      Originally posted by Adam View Post
      I haven't followed this one at all, indeed I have been barely cognizant of it, but if the election board changed the rules in the middle of the game without some real good reason, then it seems to me that needs to be reversed. I can understand making accommodations if an earthquake strikes in the middle of an election or something like that, but absent some sort of pretty serious disaster/problem that could not have been averted, it seems simple and reasonable enough to me that everyone gets one set of rules to play by well in advance of the actual election and then you go with that, and everyone plays by the same set of rules. If we can manage to do that in football and baseball and whatnot, it shouldn't be that hard for elections.



      On a side note: howinahell do people keep "finding" ballots? By definition, that means that someone "lost" ballots, and I cannot fathom any valid reason why this should happen in any election, again absent some disaster that no one could have predicted/prevented. If the polling place catches fire on election day because of some electrical fault or something, OK. That's an understandable reason for ballots to get misplaced, lost, destroyed, whatever. That sort of situation really sucks and accommodations should be made for that. But when boxes of ballots turn up in the trunk of some poll worker's car three days after the election, I'm pretty inclined to think that something hinky is going on. I mean, it's just not that hard: people vote, you put the ballots in some sort of lock box, and that box is taken to where ever it is that the votes are counted. This really does not require a Ph.D. to accomplish.
      I really didn't follow the specific imbroglio much except out of a "Wow!" curiosity over the close vote totals. I knew about the "found" ballots which was just a voting machine record that wasn't counted the first time.

      The provisional ballot thing, and the attempt to change the way they are counted during the count, is new to me. Mostly, I am interested in if SCOTUS allows Bush v Gore to become precedent.
      "There are four lights!"

      Comment

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