Lawyers: Have you seen "The Case That Could Have Altered 'Bush v. Gore'" ?

IndyOp

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Tue Dec-14-04 08:58 PM
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Lawyers: Have you seen "The Case That Could Have Altered 'Bush v. Gore'" ?

I just ran into this - posted at Legal Times (11/2/04):

The Case That Could Have Altered 'Bush v. Gore'
Newly found 1912 in-chambers opinion says Court should stay out of election disputes until state courts have had their say

The case isn't new in the sense of recent -- the Supreme Court case of Marks v. Davis dates back to 1912 -- but it is definitely brand-spanking new in the sense of being unknown and uncitable in any presidential election until now. If the lawyers in Bush v. Gore had known about it, history might, just might, have taken a different course. Why? Marks v. Davis stands for the proposition that the Supreme Court should butt out of election disputes until state courts finish their work.

<http://www.law.com/jsp/article.jsp?id=1099217129289>

Probably no application to the current situation -- but interesting!

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BlueOhio

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Tue Dec-14-04 09:04 PM
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1. Ok So, lets

Edited on Tue Dec-14-04 09:04 PM by BlueOhio

overturn the supreme courts ruling on B v. G and kick bush the hell out since we know that a full recount of florida in 2000 would have put Al in office not the current resident.

I know not realistic.

edited for spelling.

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unblock

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Tue Dec-14-04 09:08 PM
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2. the felonious 5 shrub appointers would have ignored it

the constitution itself made it very clear that the founders did NOT want supreme courts deciding elections.

the felonius five were determined to declare shrub the winner one way or another. this cite maybe, maybe, might have altered the OPINION that purported to justify the decision, but it NEVER would have altered the decision.

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IndyOp

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Tue Dec-14-04 09:15 PM
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3. Yeah, I think you're right - I still find it surreal that they declared in

their ruling that Bush v. Gore could not be used as precedent in any future court cases. They knew that what they were doing was in opposition to the Constitution.

While I (may) have the attention of a couple of lawyers - what happens after a member of the House and a member of the Senate Contest a Presidential election? Does it go to the House and Senate separately to battle to find a solution? Does it go to the states? To the courts? What happens?

:bounce:

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unblock

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Tue Dec-14-04 10:02 PM
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5. the constitution gives the house the power to resolve prez disputes

and the senate power to resolve veep disputes. that stemmed from the time when those two offices were chosen separately, it makes little sense now that the prez/veep ticket is marged, but that's the way it is.

the house and senate each have their own rules for managing such disputes, and since there's little in the way of precedent, there may be opportunities for the supreme court to step in and make up some more crap.

going back to the states is a highly UNlikely scenario. there are some good constitutional arguments that that was NOT what the founders wanted.

but then, all this assumes the banana republicans actually abide by the constitution....

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read the law first

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Tue Dec-14-04 11:02 PM
Response to Reply #3

8. President goes to one chamber VEEP the other

Then the vote is made according to state DELEGATIONS. Not Members of Congress but rather the state delegations get one vote each.

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beyurslf

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Tue Dec-14-04 09:37 PM
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4. What makes you think the majority opinion in BvG would have

looked at that case anyway? They ignored their own precendents and legal opinions from the past in reaching their decision. Ignoring one more ruling from nearly a century ago wouldn't have been that much of a stretch.

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fshrink

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Tue Dec-14-04 10:32 PM
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6. I don't think they didn't know about it.

Edited on Tue Dec-14-04 10:33 PM by fshrink

Gore's lawyers and Gore himself are very intelligent and very well documented. It was a choice. A fully conscious choice. And I suspect the gist was that with such an idiot, things would come out fast and dems would be back on the saddle four 8 more years. What could have altered Gore/bush was holding, pushing and shoving until the other cowards backed down. Today it's 100 times more difficult to achieve the same result. And tomorrow we won't even have to vote, since Diebold "Won't rest" until the (apparently all white, judging by the demo on the website) people are screwed to the gill and can't even move without asking permission.

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read the law first

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Tue Dec-14-04 11:00 PM
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7. Reynolds v. Sims changed all that n/t

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read the law first

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Wed Dec-15-04 08:58 PM
Response to Original message

9. The other problem is that all NINE justices agreed

Very VERY interesting article. Thanks for posting.

The problem with the application of this case is that all nine justices in * v. Gore, including Breyer and Ginsburg, wrote that in one way or the other the Florida Supreme Court had overstepped its bounds.

Seven agreed that something had to be done while two said give them another chance and then Scaley selected * by one vote.

Accordingly, in Bush v. Gore, all nine justices agreed that what the state was doing could not be supported and therefore the balancing of the harm was involved.

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