An informed opinion…
from Dahlia Lithwick.
Last week, Mickey Kaus asked for my thoughts on the possibility of these midterm elections turning into “Florida times 50,” with dozens of Mini-Me, Bush v. Gore-style lawsuits blooming nationwide, as disparities in vote-counting, chad-reading, and absentee-balloting lead to contested results in various state electionsâ€”some of which will inevitably wind up in the courts. More specifically, Mickey wonders how the Supreme Court can avoid being drawn into these battles, especially if there are equal-protection allegations as “compelling” (imagine!) as those leading to the court’s halting the Florida recount in 2000.
Lithwick makes this, I believe, self evident point:
The U.S. Supreme Court won’t take these cases because they lost too much political capital over Bush v. Gore, and they aren’t willing to look that bad again.
The reason Bush v. Gore doesn’t create a precedent for the court to jump into midterm election battles is that Bush v. Gore deliberately and reflexively didn’t create a precedent for anything. Remember the court’s brazen limitation of its holding: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Even the staunchest defenders of the majority decision in Bush v. Gore defend it only on the grounds that the presidential election needed to be resolved quickly and definitively, not because they believe its holding was consistent with the court’s federalism, equal protection, or voting jurisprudence. So who could expect the court to apply this reasoning to any future cases? Even the majority knew they were just making it up!
Thank you, Dahlia for reminding everyone what happened.