<x-flowed UTF-8>What Bush v. Gore created, as I wrote in 2001, is a window of opportunity for lower courts---if they wish--to use the case as a means of holding certain voting reforms to be a constitutional imperative.  I suggested then and still believe the opinion is subject to Rashomonic interpretation.  Some will read it as a one day only ticket, some will read it (as I do) as an equal protection holding, and some will read it (as Abner does) as a due process/discretion issue.  Until the Supreme Court ultimately resolves the issues, or unless the circuit courts reach consensus, the window remains open.  I don't see how Vanity Fair---even if correct as a matter of history---changes that.
Richard Winger is right by the way about drafting history.  I think there's a plausible argument, for example, that Justices Brennan and Marshall did not agree with that part of the Buckley v. Valeo per curiam rejecting equality arguments for campaign finance laws.  This is interesting (to me at least) from an academic perspective, but it should play no role in how lower courts read Buckley.  Adrian Vermuele had a very nice piece on the use of drafting history a few years making this point more generally.

Rick

Lowenstein, Daniel wrote:

       I agree with the conclusion reached by Richard Winger and Abner Greene, for an additional reason.  Whatever the process by which Bush v. Gore was reached, it is a decision of the United States Supreme Court.  That is what gives it a different standing from anything any of the rest of us may say.

       Fletcher v. Peck is one of the great old Supreme Court cases from the Marshall era.  I am rather rusty on these things, but I think that was the case in which the Georgia legislature had sold vast amounts of land (much of present day Alabama and Mississippi?) in exchange for bribes.  The Supreme Court ruled that the title of the buyers and their successors was valid, despite the bribery, and notwithstanding a later--presumably more honest--legislature's efforts to undo it.  That is a hard conclusion to swallow, and it must have been much harder at the time.  But no other decision was consistent with the rule of law.  The same is true with respect to a decision of the Supreme Court (though the force of a precedent is not--or should not be--as great as the force of a statute).

      If you like sausages, don't visit the factory!

            Daniel Lowenstein
            UCLA Law School
            405 Hilgard
            Los Angeles, California 90095-1476

    -----Original Message-----     From: owner-election-law_gl@majordomo.lls.edu on behalf of ban@richardwinger.com     Sent: Sat 11/6/2004 1:52 AM     To: FredWooch@aol.com; agreene@law.fordham.edu; Rick.Hasen@lls.edu; foley.33@osu.edu     Cc: election-law@majordomo.lls.edu     Subject: Bush v Gore
    
    

    I don't see any absolute difference between Bush v
    Gore and many other election law decisions put out by
    the US Supreme Court.  It's just that we don't know as
    much about the process, in the case of other election
    law decisions.
    
    Bush v Gore has been cited in over 50 cases, including
    at least two election law decisions by the 9th
    circuit.  It has just as much precedential value as
    any other US Supreme Court election law case issued in
    the last 50 years.
    
    I have seen Justice Blackmun's conference notes for
    all the ballot access cases.  He recorded comments
    such as Scalia's "The ballot-crowding argument is a
    phony!".  Anyone who is lucky enough to get inside
    information on any US Supreme Court decision, is
    likely to find that the Bush v Gore process wasn't
    that different from other contentions split decisions.
     Rick Hasen, help me out here with the campaign
    finance decisions!
    
    --- FredWooch@aol.com wrote
    > I preface the following comment with a plea that no
    > one take it the wrong way
    > or be offended by any implicit implication that
    > there is a lack of worth to
    > the continuing academic and intellectual efforts to
    > analyze the Bush v. Gore
    > decision.  But, having said that, I truly am curious
    > why anyone -- especially a
    > devastated Kerry supporter who still believes that
    > there were serious problems
    > with Florida's recount in 2000 -- can spend time
    > attempting to construct a
    > neat theoretical framework to explain or criticize
    > the Supreme Court's decision
    > after the recent Vanity Fair article made it quite
    > clear that the decision was
    > utterly political, with its
    > "good-for-this-case-only" holding and analysis
    > apparently just a pretext to reach a foregone
    > conclusion.  I have seen
    > criticisms that the clerks who spoke to the authors
    > of that article breached their
    > confidentiality pledges and should not have done so,
    > but I don't believe I have
    > read anything that casts doubt upon the truth of
    > what the article said.
    >
    > Fred Woocher
    >
    
    
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