Please Don't Cite This Case! The Precedential Value of Bush v. Gore

[elleng]

07 NOV 2006

'As Americans turn out to vote today, the ghost of the 2000 Presidential elections will hover over the voting booths. According to The New York Times, this will be the first midterm election in which the “Democratic Party is mobilizing teams of lawyers and poll watchers” to check for voting irregularities. Where there are “teams of lawyers” mobilized, can lawsuits be far behind? According to election law expert Dan Tokaji, any number of things “can cause problems on election day,” from problems with voting machines to the use of so-called “provisional ballots,” which allow people to cast votes on election day despite questions about their eligibility.

But of course the lawsuits have already begun, and the case that decided the 2000 presidential election is now giving lower court judges headaches. Long a whipping boy of progressive law professors, the infamous decision in Bush v. Gore is facing judges who have to try to make sense of it in the context of the new wave of election-law litigation. And the first question they have to confront is whether they should be making sense of Bush v. Gore at all. For Bush v. Gore notoriously announced that “[o]ur consideration is limited to the present circumstances,” a line which some legal academics likened to a ticket good for one day only, or a self-destruct mechanism: after the President was chosen, the case blew up. Was the Supreme Court really trying to signal that Bush v. Gore should have no precedential value? . . .

And the first question they have to confront is whether they should be making sense of Bush v. Gore at all. For Bush v. Gore notoriously announced that “[o]ur consideration is limited to the present circumstances,” a line which some legal academics likened to a ticket good for one day only, or a self-destruct mechanism: after the President was chosen, the case blew up. Was the Supreme Court really trying to signal that Bush v. Gore should have no precedential value?

According to the majority in a recent Sixth Circuit court decision, now vacated and awaiting a hearing by the Sixth Circuit sitting en banc, the answer to this question had to be “no.” . .

The Court has so far behaved as if Bush v. Gore does not exist, not yet having cited it (pro or con) in any case. If Stewart v. Blackwell is not the case that ultimately forces the Supreme Court to show its hand, some other case will have to be.'

https://www.yalelawjournal.org/forum/please-dona8217t-cite-this-case-the-precedential-value-of-bush-v-gore

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Food for thought???

[DonaldsRump]

1. Bush v. Gore was an absurdity beyond absurdities

SCOTUS specifically held it could never be cited as precedent, which, in its own right, is insane.

Let's remember the basic underpinnings of this case: W's equal protection rights, not those of the voters.

I will never forget "Justice" Antonin Scalia stating at Oxford for people to "get over it" in relation to Bush v. Gore.

This world would be a totally different place if this case had never happened or was correctly decided.

SCOTUS: grow up and take responsibility for your disasters.

[elleng]

2. Good to see Ron Klain discussing this on Chris Hayes show now.

[TreasonousBastard]

3. More like food for fight. I remember that decision, and the head scratching...

around it. Scalia seemed to be saying "Don't worry."

But, even though the decision itself may have been "non precedential" Trump's shysters will spend much overtime trying to make it a precedent.

And, just like Bush v. Gore, they may do it.