|
I haven't seen any of their posts (I don't go to repug sites, blech) but what they must be talking about is the so-called "political question" doctrine. Traditionally, out of respect for the separation into three co-equal branches of government, courts have stayed out of how the legislative branch selects itself. You will see this in many "refuse to seat" cases where the courts will say "the legislative branch is the sole arbiter of who will be seated and courts will not be involved." Of course, this has limits in that courts handle election contests all the time on the basis of statutes that the legislative branch has established. Second, this isn't the legislative branch selecting itself, it is the election of the chief officer of the executive branch. So that's one difference.
If you want to read about the political question doctrine, go to Reynolds v. Sims, the SCOTUS case that first got the courts involved in redistricting (up until that case, redistricting had been deemed a political question). The Court spends a lot of time worrying about whether they should follow the doctrine or not.
In the Hawaii case, the recount showed that Kennedy had won, so we're not there yet because the recount hasn't happened yet.
On the other hand, as in Reynolds v. Sims, the Courts decide what the political question doctrine means and whether it applies. In essence, the Courts decide their own jurisdiction unless and until the legislative branch steps in and limits the courts' jurisdiction.
So, if you are in a court which follows the political quesion doctrine closely, it's probably correct to say that a court will not interfere with the elector's votes once they are cast. If you are in a court that doesn't follow the political question doctrine closely, the court will figure out a way to say that they are just interpreting the laws that the legislature established.
No court will reverse an election, however. That would be unprecedented and would carry a high probability of violent disorder and courts are very, very reluctant to go there. The remedy in a contest is a new election not to reverse an election. People sometimes get confused with the distinction that SCOTUS didn't actually "select" *, but rather it stopped the vote count that would have led to the election of President Gore. (We'll get a hundred posts that says that's the same thing, ok, ok, ok, ok).
So, the answer to the original question is simultaneously, "yes, they might be right," "no, they might be wrong" and "it depends."
:shrug:
|
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
