Precedential Politics




The Supreme Court’s Bush v. Gore decision in 2000 was widely, and accurately, seen by liberals as a piece of low partisan politicking by a highly ideological court. Yesterday’s decision by the United States Court of Appeals for the Ninth Circuit to delay the California recall election, which cited Bush v. Gore as a precedent, is widely seen by conservatives as, well, a piece of low partisan politicking by a highly ideological court. Apparently, it’s payback time.

If the California decision goes, as expected, to the Supreme Court, Renquist & Co. will be in a heck of a bind. In finding for the ACLU and others that the scheduled date of the recall, Oct. 7, didn’t give enough time for six counties to replace their error-prone punch-card voting machines, and that voters stuck with the lousy machines lack equal protection under the law, the three-judge panel of the famously liberal appeals court in San Francisco essentially turned the logic of Bush v. Gore back on the justices, with this time Democrats seemingly the big winners. (If the vote is delayed, as planned, till March, it will coincide with a Democratic presidential primary, meaning a jump in Democratic turnout; also, voters currently mad-as-hell at Gov. Davis will have some time to cool down. So the reasoning goes.)

The court’s rationale:

“The choice between holding a hurried, constitutionally infirm election and one held a short time later that assures voters that the ‘rudimentary requirements of equal treatment and fundamental fairness are satisfied’ is clear … In this case, plaintiff’s equal protection clause claim mirrors the one recently analyzed by the Supreme Court in Bush v. Gore.”

So here’s the bind. If the Supreme Court takes the case and approves the lower court’s decision, it effectively OKs the use of Bush v. Gore as a precedent, something its majority opinion in that case explicitly rejected. “Our consideration is limited to the present circumstances,” that opinion read, “for the problem of equal protection in election processes generally presents many complexities.” Plus, if the justices take the case and strike down the lower court’s ruling, they risk looking partisan — again. Whereas if the court lets the decision stand, it will do so presumably against the deepest ideological instincts of the conservative justices.

The decision, with its strong hint of partisan vengeance, had commentators reaching for the incendiary metaphors. An editorial in the Sacramento Bee, for instance, says that “[t] he often liberal 9th U.S. Circuit Court of Appeals has now fired a weapon loaded in December 2000 by the conservative majority on the U.S. Supreme Court.” And Vikram Amar, a professor at Hastings College of the Law in San Francisco told the New York Times that the California court was “hoisting the Supreme Court on its own petard.”

Recall opponents (big surprise) think the decision basically sound. Richard L. Hasen, a law professor who has written a book on Bush v. Gore (and who filed an amicus brief on behalf of the anti-recall side), told the New York Times that “[i]f Bush v. Gore has precedential value — and there have been considerable disputes about that — it should apply in this case…. The holding of Bush v. Gore is that you cannot in an arbitrary manner value one person’s vote above another’s. This is an easy case under that rule.”

It’s unclear what the high court will do. “I’d say the Supreme Court doesn’t want to touch it with a 50-foot pole,” Stephen Gillers, a constitutional law professor at New York University law school, told the AP.

But given the importance of the case, it seems unlikely the Supremes will be able to skip it. Slate’s Mickey Kaus, whose blog has been one of the go-to spots for all things recall, nicely captures the dilemma:

“If I were the U.S. Supreme Court, I would be very reluctant to reverse the Ninth Circuit and thus cement a reputation as an unprincipled partisan court that upholds obscure Equal Protection arguments when they throw an election to Republicans (as in Bush v. Gore) but strikes them down when they would throw the election to the Democrats. This suggests that the pro-recall forces’ best hope is a rehearing bythe entire Ninth Circuit sitting en banc, not an appeal to SCOTUS. …”

But it’s doubtful the appellants will take their appeal to the full, 25-judge court of the Ninth Circuit, given the much-noted liberal slant of that bench. (These, after all, are the guys who struck the words, “Before God” from the Pledge of Allegiance. And Kaus has noted elsewhere the “museum-quality paleoliberal mindset” of at least one of the three judges on the appelate panel.)

Partisan or principled? The San Jose Mercury News says both, maybe:

“Conservatives have pushed for years to break up the court — which covers nine western states and is by far the largest in the country. Critics say it regularly ignores Supreme Court precedent and presses a liberal judicial agenda. But supporters and many legal scholars are quick to defend the court for its independence and willingness to take unpopular positions that elected state court judges duck.”

Republicans aren’t ambivalent: they say the decision reeks of partisan politics, and … they may have a point. Here’s conservative columnist Debra Saunders:

“The 9th Circuit Court is known for its blatant disregard for legal niceties when it comes to decisions that grate against the court’s rarefied politics. But postponing the election is bad for government — whether you support or oppose the recall.

Two problems: First (and this is a biggie), Gray Davis was elected governor under this system, with major counties using the punch-card ballots. If the old system was so flawed and unfair, the ACLU shoud have filed suit to stop the November 2002 elections, which Davis says he won ‘fair and square’ — with 47 percent of the vote. Second, new techno ballots could have big problems, too.

Again, the ACLU doesn’t even bother to hide its political agenda.”

But, as conservative blogger Andrew Sullivan points out, conservatives risk looking hypocritical, or at best inconsistent, if they oppose invoking Bush v. Gore as a precedent:

“[I]t’s a good question whether I think the court has the right to intervene to prevent an electoral fiasco. I answered that [affirmatively] in 2000. I’m not changing my mind now that it (probably) benefits a goddawful Democrat.”

But it’s not exactly a no-brainer that the Bush v. Gore precedent does apply. In Florida, ballots were counted by hand and people were using subjective judgments about the relative hang of chads, under systems that differed from one county to another. In California, the claim brought by the plaintiffs is that mechanical processes would cause to many errors in vote counting — in counties that are predominantly minority and Democrat. OK, they’re similar, but they’re not the same.

Even some anti-recallers are uncomfortable with the decision. This from a Los Angeles Times editorial:

“This latest round of the recall battle is another sequel to the corrosive political thriller that won’t go away, a real-life Revenge of the Ideologues. This time it’s called California Recall. Plot points vary, but they all have in common the rotten whiff of partisanship run amok. Nothing matters except to win. It doesn’t matter if there is no sense of fair play; it doesn’t matter if it becomes nearly impossible to govern Ñ as long as you can show You Are Right. And They Are Wrong

The political drive for retribution started before the presidential election of 2000, but the events of that year upped the ante. The U.S. Supreme Court after the disputed presidential election said that a lack of uniform standards among Florida’s counties created the possibility that ballots in certain parts of the state were more likely to be counted than in others, violating the U.S. Constitution’s equal protection clause. That decision by the Republican-appointed majority benefited George W. Bush and his supporters.

In filing its lawsuit to stop the Oct. 7 recall, the American Civil Liberties Union turned the tables, using the same equal protection argument in asking the court to delay the recall vote. The decision by the Democrat-appointed panel benefited Gov. Gray Davis and his supporters.

Score one for your side. Or their side. But the business of the people remains undone and unattended.”

The San Francisco Chronicle weighs in with much the same point — essentially that the appeals court is playing with fire:

“As the high court reviews the facts, it should take a hard look at the assumption that the error rate actually would reach 40,000, and, if so, whether it could be reduced through voter education and poll-worker vigilance. The concerns raised by the Ninth Circuit are serious but they may not be insurmountable. The expectation of many Californians who signed the recall petition, and the 135 candidates who joined the race, is that an election will be held on Oct. 7. The threshold to stop a scheduled election should be extremely high.”

A lot about this decision remains uncertain: whether the Supremes will take the case; how they will rule if they do take it; whether a delay does, in fact, benefit the governor his rivals. (Next March, Davis will be in the thick of budget negotiations with the state still way in the red, and voters blaming him. Which is something the appeals court, assuming they were playing politics, might have considered…)

One group sure to benefit from a delay, notes the Los Angeles Times is the army of political operatives making pay off the circus :

“One thing seemed likely. Even if voters are frustrated, a delay could be good news for the professionals who make their living from politics.

‘You’ve got to pay more money to keep the phone banks going and the advertising running,’ said Shaun Bowler, a UC Riverside political scientist. ‘So those guys are thinking of cashing a few extra weeks of pay if this thing keeps going.'”

Whether they’ll get their wish is anyone’s guess. But all eyes are on the Supremes. As the New York Times points out, this one could go either way.

“Legal experts said the court might well take the case to clarify the lasting power, or not, of Bush v. Gore; to show that it is equally sympathetic to challenges brought by parties aligned with Democrats; or to slap down the Ninth Circuit for its perceived impudence.

On the other hand, the Supreme Court has ignored its decision in Bush v. Gore, not citing it in any case since then. That may mean the justices have no particular desire to plunge back into that thicket anytime soon.”