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Taking Bush v. Gore Seriously: Norm Coleman Edition

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Amusingly, the GOP has managed to raise more money to delay Norm Coleman’s inevitable defeat than they were able to raise for him during the actual election[Retracted–see update at link. Never trust Drudgico.] So you know this was coming:

Coleman’s team says the different methods Minnesota counties use for counting absentee ballots violated the Constitution’s equal protection clause — echoing the same 2000 Florida recount case that effectively handed the presidency to George W. Bush. By making a constitutional case, Republicans are already looking ahead to federal court.

“The Supreme Court in 2000 said in Bush v. Gore that there is an equal protection element of making sure there is a uniform standard by which votes are counted or not counted, and I think that’s a very serious concern in this instance,” said Texas Sen. John Cornyn, chairman of the National Republican Senatorial Committee. “I’m not making any predictions, but I wouldn’t be surprised” if it ended up in federal court.

And the thing is, the argument isn’t even frivolous on its face. After all — while they tried to disown the implications of their holding in keeping with the lawlessness of the entire enterprise — the equal protection logic of Bush v. Gore does seem to imply that counting ballots by different standards violates the 14th Amendment. As that great legal sage Antonin Scalia has explained the majority’s reasoning, “Counting somebody else’s dimpled chad and not counting my dimpled chad is not giving equal protection of the law.” The problem, of course, is that returning to the previous count doesn’t make Minnesota’s methods of counting absentee ballots any less arbitrary. But, then, this was also a problem in Bush v. Gore — under Scalia’s logic the count that give Bush the victory was just as defective as the recounts he sought to pre-empt because they would threaten the victory of his preferred candidate offend his deeply held constitutional principles. But the Supreme Court convincingly the explained why some arbitrary recount methods are better than others by pointing out that…look, it’s Halley’s Comet!

Seriously, this argument has no chance, for the obvious reason that pretending that Bush v. Gore was actually constitutional law would not advance Republican interests as reliably as the initial decision would. The decision, at some point in the sweep of history, may actually be used to make the American voting system more rational, but that will have to wait for a very different Supreme Court.

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