September 20, 2003

Here is the archive of the Election Law email list for the month of September -- full of Bush v. Gore and Ninth Circuit v. California Voters posting from legal experts. Here is an example of the quality of the posts:

From: Bauer, Bob

Dan asks a good question: why so little analysis on the list of the substantive merits of the claim? I have detected one reason among opponents of the recall (and I am one of those who detest this recall): genuine uneasiness over the question of whether the merits had much to do with the panel's decision.

The dilemma for those opposed to the recall, who typically count themselves among the severe critics of Bush v. Gore, is that 1) the panel's interpretation of the case, as it applies in California, is very difficult to defend; and 2) in any event, those who dislike Bush v. Gore are hardly comfortable with resurrecting it for any purpose as legitimate precedent of broad application. And to the extent that the panel was--to put it politely--deciding the case on the political facts and not the substantive law, this too places Bush v. Gore critics in an awkward position, since it is precisely this result orientation that many attribute to the Supremes.

These are problems that will not go away: as constitutional and statutory laws controlling the political process become ever more elaborate, the specialists will debate theory while the courts will use the theoretical scaffolding to extend judicial dominion over the democratic process-- ruling on political "facts" in accordance with raw political preferences.

I am not suggesting that the panel thought this was what it was doing, but even those sympathetic to result suspect that this more than anything else was at work in the decision.

It for this reason that I was struck by Rick Hasen's defense of the use of BusH v. Gore--a defense both commendably candid and also troubling. He writes:

"[w]hen the Supreme Court creates a wholly new equal protection standard that does not stem from broad social consensus (as it has in cases like Reynolds, Shaw v. Reno, and Bush v. Gore), it should do so initially using a murky standard. That allows lower courts to experiment with the contours of the new equal protection right allowing the Supreme Court to gain valuable
information about how to ultimately shape the new right. That is how to read the current dispute over Bush v. Gore. This is an entirely good thing."

It is?? A Supreme Court claimed by many to be acting on political preferences creates a new equal protection standard that is conceded to be
opaque but somehow suited to experimentation by lower courts (many of which are being stacked with other judges with, er, political interests). Some would not sleep all that comfortably when confronted with this prospect. In any event, setting aside political suspicions, it will trouble anyone who fears the extent to which courts are being invited to design political processes and settle political disputes.

Posted by Greg Ransom | TrackBack