Legal News

Bush v. Gore, Part Deux?

By Dan Slater

My two secrets to staying healthy: wash your hands all the time. And, if you can’t, use Purell or one of the sanitizers. And the other is hot peppers. I eat a lot of hot peppers. I for some reason started doing that in 1992, and I swear by it.

– Hillary Clinton, last night on 60 Minutes

But I’ve been religious about getting my exercise. . . . We realized that we had played basketball before Iowa and before South Carolina. We didn’t play basketball before New Hampshire and Nevada. And so now, we’ve made a clear rule that on Election Day, I have to play basketball.

– Barack Obama, last night on 60 Minutes

The Law Blog was fascinated to hear about the superstitions and rituals of the Democratic candidates last night on 60 Minutes. We thought of them again this morning while reading a WSJ op-ed by Ted Olson – the Supreme Court super-litigator, former solicitor general and Gibson Dunn partner – in which he mulls the possibility of a Bush v. Gore-like stalemate in the ’08 election.

Based on Super Tuesday’s primaries and caucuses, Olson, for purposes of this fun little hypothetical, imagines a convention in which Clinton leads in the popular vote, while Obama has the delegate lead. Analogizing to 2000: Barack plays Bush, while Hillary is cast as Gore.

If, as the convention nears, writes Olson, Clinton trails in the delegate count, the next step could be a suit in the Florida courts challenging her party’s refusal to seat Florida’s delegation at the convention. “And the Florida courts, as they did twice in 2000, might find some ostensible legal basis for overturning the pre-election rules and order the party to recognize the Clinton Florida delegates.”

Olson predicts that that “battle-tested Democratic lawyers” would separate into two camps. “Half of them would be relying on the suddenly-respectable Supreme Court Bush v. Gore decision that overturned the Florida courts’ post-hoc election rules changes. The other half would be preaching a new-found respect for ‘federalism’ and demanding that the high court leave the Florida court decisions alone.”

“Would Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, the dissenters in Bush v. Gore, feel as strongly about not intervening if Sen. Obama was fighting against an effort to change a presidential election by changing the rules after the fact?” asks Olson. “If it does happen, I’d be more than happy to loan Sen. Obama the winning briefs that helped secure the election of the legitimate winner of the 2000 election, George W. Bush.”

Full post as published by Law Blog - WSJ.com on February 11, 2008 (boomark / email).