Bush V. Gore Isn’t Precedent, But It Keeps Getting Cited | Talking Points Memo

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This is a companion discussion topic for the original entry at https://talkingpointsmemo.com/?p=1341642

Dems can use Bush v Gore as well…

the heart of Bush v Gore is that the Court decided to assume what the state legislature would do under the circumstances found in Bush v Gore. It was a bullshit idea, but that’s what they did.

So once all the votes are in, and its shown that certain rules had a discriminatory impact, Dems should argue that the State Legislature never intended to allow rules that resulted in a discriminatory impact – because to do so would be to assume that the State legislature allowed racial discrimination. And you can’t assume that a Legislature would do something unconstitutional.

Or with “late arriving ballots”. Are we really to assume that the State Legislatures wanted to deny the right to vote to people whose ballots arrived late because of a pandemic? Or because the Post Office decided to slow down the mails? That would be absurd – especially if it can be shown that mail was slower in areas with large number of minority voters.


" Ordinarily, when a state supreme court rules on an issue of state law, that state court decision can’t be appealed to the U.S. Supreme Court, an outgrowth of the federal system in the United States. In his concurrence, however, Rehnquist claimed to have identified an exception to this rule in the context of state laws governing presidential elections. In that context, Rehnquist wrote, the U.S. Supreme Court, in fact, could second-guess a state supreme court’s interpretation of its own state’s election law."

Except it ignores one of the most egregious problems, IMO, with this case.

Amendment 11:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Bush was a citizen of Texas. So the 11th Amendment specifically forbids ANY Federal court to weigh in on his lawsuit against the state of Florida. The Florida Supreme Court was supposed to be his court of last appeal.

This was the issue Rheinquest was trying to dance around. And, despite being a bit of legal quackery, was a misdirection from the underlying problem with violating the 11th Amendment by even hearing the case.

Fast forward 20 years, and here we are…Justices latching on to that bit of quackery and looking to nullify every state’s constitution and their courts. Indeed, at principal here, is an assault on Marbury, which is a ruling that gives the SCOTUS most of their own power.


“… latching on to that bit of quackery …”

I was at a house party the December weekend the Bush v Gore decision came down, & vividly remember trying to answer all the questions from my non-lawyer friends.

I finally gave up struggling to explain (or understand) it as anything but a bad-faith result-based decision.


You and others here are probably correct, but it will mean nothing to the Alice in Wonderland Red Queens on our Sup Ct.


Ah yes, Bush v Gore, not the first nor second election stolen in the previous 32 years (Nixon in '68, Reagan in '80); the one where the 5 - 4 majority believed in federalism - except when they didn’t, not this time; the decision no one of those five would actually sign it; the decision where the five then claimed their vote was not precedent.


No one can use Bush v Gore. It’s unlikely that 2020 will boil down to a single squabble that SCOTUS can scam an equal protection argument from. Trump may have said he thinks SCOTUS will bail him out but you can bet SCOTUS wants NO PART of that. But what seems to be missing in the SC saves the day yak is the Court must have reason to bail Trump out. And given the shit they pulled in 2000 they’re going to demand a damn good one or Americans will burn that marble shithole down if they manufacture one.

It’s not going to happen. SCOTUS to the rescue and Mexico’s going to pay!!!


The real precedent of 2000 is the precedent where the right-wingers on the court can discover new interpretations of the Constitution that deliver the outcome they want.

It does not have to be an exact repeat of the bizarre 2000 ruling.

In fact we already know the new doctrine that they seek to employ - that state legislatures have unilateral power not noticed until now to dictate all election rules and activities without reference to existing state law, the courts, or executive agency of the state.

But if that one does not get the job done, they will invent something new. Heck they that creative legal thinker Barrett on the team now!

Or as @tol states up-thread - the precedent was one of employing naked bad faith to dictate the election result.


The last 40 years are filled with example after example of how the spineless Democratic elitist at the top of the party have allowed the Republican minority to dominate control over our government, tax system, trade policies, and especially the judicial system.

There is a long list of sell out Democrats over these 40 years…they keep selling out the working class and commoners allowing the Republicans and their billionaire and corporate masters to control every aspect of government.

And now we are hearing Biden talk about putting Republicans in his cabinet and working in a bi-partisan manner. Hey Joe…this is why so many former Democrats went for Trump in 2016. Democrats don’t lead and they don’t fight for workers…they subjugate us by thinking wrongly that the majority of Americans want bi-partisanship. The silent majority wants out country taken back from the corporations and the rich - PERIOD!

Look Diane Feinstein - what a complete POS. And spineless Obama, Clinton, and Schumer are no better. They failed to filibuster Kavanugh and more recently Barret. They are chickens when the Republicans dig in.

Living under Catholic values with 66% of the SCOTUS being in control is as bad as allowing shariah laws to come into the US. Separation of church and state by definition means that one particular religion must not be allowed to control any branch of government!

All together now, “Da, comrade!”

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If republican judges were taking Bush v. Gore seriously, they would be ruling in favor of postmark (and postmark-like) dating for all mail-in ballots. It is unconscionable that whether your vote counts depends on how far you live from the nearest mail sorting hub and how close to capacity that hub is during the time when your ballot is being processed.

Also unconscionable that some people should have to take 4-12 hours to vote in person and other 20 minutes.

But republican partisan judges apparently couldn’t give s*** about that.

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