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The Supreme Court hears the election case, Bush v. Gore is reborn



Washington — The Supreme Court’s decision in “Bush v. Gore” 20 years ago should function like the tape recorder in “Mission: Impossible.” Its purpose is to produce a president and then self-destruct.

Most people wrote: “Our considerations are limited to the current situation.” In other words: the decision is just a vote, the presidency is handed over to George W. Bush, and then disappeared. In the following two decades, the Supreme Court’s opinion only cited this case, which was a incidental reference to the reference in the footnote to the objection raised by Justice Clarence Thomas in 201

3.

On Monday, Justice Brett M. Kavanaugh breathed new life into the ruling, which ended the recount ordered by the Florida Supreme Court on December 12, 2000. He said this decision may play a role in determining election disputes currently pending in courts and other potential challenges to election rulings by state courts.

Judge Kavanaugh’s remarks were unanimous, explaining why the court was correct to refuse to extend the deadline for absentee ballots in Wisconsin on the grounds of 5 to 3 votes. He wrote that federal judges should not change state voting rules before the election.

Then Judge Kavanaugh raised another question in a long footnote, one that was not in court. He cited the Bush v. Gore case that the federal courts do play a role in overseeing state courts in certain election disputes. Usually, the state Supreme Court has the last word on state law issues.

“As Chief Justice Remquist explained convincingly in Bush v. Gore,” Judge Kavanaugh wrote of the common opinion in the case, “The constitutional text requires the federal courts to ensure that the state courts Do not rewrite state election laws.”

Catch up with the 2020 elections

Nathaniel Persily, a law professor and political scientist at Stanford University, said: “This is the most comprehensive theory of independent national legislation we have obtained from the Supreme Court since Bush v. Gore was agreed. Defense.” “The prerequisite for litigation after the election this year is that if there is a conflict with the state courts and the state legislature, several judges of the Supreme Court will favor the legislature.”

If there is any conflict, it seems to be beneficial to the Republicans in November. Republicans control the state legislatures of many, if not all, major battlefield states, including Michigan, Wisconsin, Florida, Pennsylvania, Arizona, Georgia, Ohio, Iowa, Texas, and North Carolina. State.

Judge Kavanaugh’s views have not yet been widely accepted. Even in Bush v. Gore, it won only three votes, Chief Justice Remquist, Justice Antonin Scalia and Clarence Thomas. The other members of the majority judge, Judge Sandra Day O’Connor and Anthony M. Kennedy, did not join the Chief Justice’s consent. The unsigned majority opinion is based on the principle of equal protection and warns that it is “limited to the current situation”.

Judge John Paul Stevens disagreed. He said: “When questions are raised about the meaning of state laws (including election laws), our solution is to accept the Supreme Court’s opinion as the final answer. However, in rare cases, both federal regulations and the Federal Constitution may require federal judicial intervention in state elections. This is not the case.”

On Monday, the case from Wisconsin disagreed. Judge Elena Kagan wrote that it was a serious mistake to allow state legislators to freely control when voting rights are threatened.

She wrote: “If legislators shouldn’t be respected in a certain area, it’s electoral law.” “Because in that area, politicians’ motivations often conflict with the interests of voters-that is, whenever votes are suppressed, rules are made When the legislators are favorable.”

The most direct impact of Judge Kavanaugh’s position may be that in a case involving the Pennsylvania Republican Party requesting to block the state’s Supreme Court ruling, the ruling extended the deadline for receiving mailed ballots by three days. Last week, before the arrival of Justice Amy Coney Barrett, the court was deadlocked 4-4 in the case, which allowed the extension to be retained.

One aspect of the disagreement is Chief Justice Roberts and the three liberals of the court. On the other side are Kavanaugh, Thomas, Judge Neil M. Gorsuch and Judge Samuel A. Alito Jr..

The Pennsylvania Supreme Court ruled that the coronavirus pandemic and mailing delays need to be extended by three days, and ordered an inventory of ballots clearly mailed on or before election day and ballots with missing or illegible postmarks. Evidence shows that it was mailed after election day. “

Republicans in Pennsylvania are looking forward to the arrival of Justice Barrett and have returned to the Supreme Court. They now require the Supreme Court to hear the full appeal of the case at an unusually rapid rate and issue a decision before election day. Judge Barrett’s vote is almost certainly decisive.

On Monday, Judge Kavanaugh discussed the Supreme Court’s role in overseeing state courts in election disputes in his consent opinion.

“A kind Federal Court The changes in the election laws of Wisconsin and other states are in some ways State court Changes to state election laws (or state agencies),” he admitted. “That is, according to the U.S. Constitution, state courts do not have blank checks to rewrite state election laws for federal elections. “

Judge Kavanaugh wrote: “State courts must not violate state election rules set by the legislature.”

In Monday’s dissent, Justice Kagan found inconsistencies in Justice Kavanov’s reasoning. She pointed out that when a federal judge changes state election rules but he approves of “the important judicial role of the federal courts in reviewing state courts’ decisions on state laws”, he criticized the so-called “best electoral management vision for federal judges.”

Judge Kagan wrote: “It is difficult to know how to reconcile two views on the role of the federal judiciary in voting rights cases.”

Chief Justice Roberts briefly agreed in the Wisconsin case and separated from Justice Kavanov.

He wrote: “Although Pennsylvania’s application implies that state courts have the right to apply their own constitution to electoral regulations, this case involves a federal violation of state legislative procedures,” he wrote. “Different legal systems and different precedents apply to these two situations. In this particular case, we are required to allow changes to the Pennsylvania election rules, but not Wisconsin.”

The Florida recount, which caused Bush v. Gore, resonated with both sides in this election. This is the most lawsuit in recent history, with more than 400 lawsuits being filed.

Even 20 years later, the Democrats still have bitter memories of the court’s 2000 ruling, because the ruling ended the recalculation of Al Gore’s campaign assistants, believing that it might have brought different results.

As it happens, Judge Kavanaugh is a young lawyer in a recounting lawsuit in Florida on the Republican side. The same goes for Justice Barrett and Chief Justice Roberts.

Jim Ruttenberg and Nick Corasaniti contributed the report.


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