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They were practiced at the art of deception


Adam Liptak on how the people who helped make Bush v. Gore happen are making it great again:

The Supreme Court’s decision in Bush v. Gore 20 years ago was supposed to work like the tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

“Our consideration is limited to the present circumstances,” the majority wrote. In other words: The decision was a ticket for one ride only, handing the presidency to George W. Bush and then disappearing. In the two decades that followed, only a single Supreme Court opinion ever cited the case, and that was a passing reference in a footnote to a 2013 dissent from Justice Clarence Thomas.

On Monday, Justice Brett M. Kavanaugh breathed new life into the decision, which on December 12, 2000 shut down a recount in Florida ordered by the state Supreme Court. He said the decision could play a role in deciding an election dispute now before the court and other potential challenges to election rulings from state courts.

Justice Kavanaugh’s remarks came in a concurring opinion explaining why the court, by a 5-to-3 vote, had been right to refuse to extend a deadline for counting absentee ballots in Wisconsin. Federal judges, he wrote, should not change state voting rules close to elections.


In an odd coincidence, Justice Kavanaugh worked on the recount litigations in Florida, on the Republican side, as a young lawyer. So did Justice Barrett and Chief Justice Roberts.

Or not so odd! Anyway, your reminder that Kennedy and O’Connor couldn’t stomach joining Rehnquist’s concurrence — although they were presumably also desperate to try to find something other than an equal protection rationale that could be deployed for progressive purposes if taken seriously — because its argument is very, very, very stupid:

Dissenting in the case from Wisconsin on Monday, Justice Elena Kagan wrote that allowing state lawmakers free rein when the right to vote was at stake was a grave mistake.

“If there is one area where deference to legislators should not shade into acquiescence, it is election law,” she wrote. “For in that field politicians’ incentives often conflict with voters’ interests — that is, whenever suppressing votes benefits the lawmakers who make the rules.”


In dissent on Monday, Justice Kagan detected an inconsistency in Justice Kavanaugh’s reasoning. She noted that he had criticized what he called a “federal-judges-know-best vision of election administration” when federal judges altered state election rules but had endorsed “an important federal judicial role in reviewing state-court decisions about state law.”

“It is hard to know,” Justice Kagan wrote, “how to reconcile those two views about the federal judiciary’s role in voting-rights cases.”

Speaking of Bush v. Gore, remember the insane argument from Scalia’s stay order that counting votes would constitute “irreparable harm” to George W. Bush? The standing argument brought by the plaintiffs and accepted by the Eight Circuit in the blog post from MichelleMalkin dot com it issued yesterday would like to see that and raise it:

Lucero and Carson would be injured, Grossman argued, because accepting every ballot “dilutes their votes as a matter of pure arithmetic: When the vote pool goes up, the weight of their individual votes goes down.”

“Counting legally cast votes for Joe Biden would harm petitioners by diluting their votes for Donald Trump.” The aristocrats!

The idea that 8CA has some inherent legitimacy it is entitled to maintain irrespective of how it acts is flatly absurd. Checks and balances are always a two-way street.

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