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Tuesday, September 16, 2003

Posted by Jake
One More Round For Bush v. Gore (washingtonpost.com)

Not that I think this decision has a prayer in the Supreme Court, but I don't buy this legal analysis.

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.

If the case means anything, they argue, it means that the Constitution forbids states from arbitrarily counting different voters' ballots differently. That includes setting up an election in which one technology, the punch-card machines, would subject a sizeable percentage of voters -- among whom are a disproportionate number of minorities -- to a greater risk of having their ballots discounted than other voters.


I disagree with that analysis. I interpreted Bush v. Gore to mean more that the rules could not be changed capriciously after the election had taken place -- more of an ex post facto issue than a equal protection issue. I don't think that it means that the states do not have domain over what those rules are or that the states are obligated to have the best equipment available at all times. My suspicion is that the Supreme Court is going to allow the states a lot more leeway particularly when the election hasn't even occured yet. I feel like you have to show you have been hurt before you can have standing.

I also love how the villified Bush v. Gore decision has gone through such an astonishing transformation.


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