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About Oregon daily emerald. (Eugene, Or.) 1920-2012 | View Entire Issue (Oct. 4, 2002)
Supreme Court may hear i Bush v. Gore once again i Linda Greenhouse New York Times WASHINGTON (U-WIRE) — Again? Is it conceivable that not even two years after the U.S. Supreme Court brought the presidential election to a close with its 5-4 de cision in Bush v. Gore, the justices would put themselves on the line again in a state election case that this time could determine control of the Senate? That chance presented itself on Thursday in the form of an ’’appli cation for emergency relief” filed at the court by the New Jersey Re publican Party. The Republicans asked for a stay of the New Jersey Supreme Court’s decision on Wednesday to permit former Sen. Frank R. Lautenberg to appear on the Nov. 5 ballot in place of Sen. Robert G. Torricelli, who withdrew his re-election bid on Monday, af ter the formal deadline for a ballot substitution had expired. Psychoanalyzing the Supreme Court in the aftermath of Bush v. Gore was only the second chal lenge confronting the Republicans’ lawyers as they scrambled to keep a potential Democratic winner from replacing an almost certain loser. The first challenge was a strictly legal one: persuading any justices who might be inclined to intervene in this state election-law dispute that there is a plausible ba sis for the Supreme Court to assert its jurisdiction. And on that score, given what they had to work with, the lawyers probably did as good a job as anyone could. The Supreme Court has juris r diction only over questions aris ing under the federal Constitution and federal statutes. The Republi can petition offered the justices a bit of each, including a nod to constitutional due process and to a federal statute on absentee vot ing. Most creatively, the Republi cans borrowed a concept from the three-justice plurality opinion in Bush v. Gore to the effect that a state legislature’s word on the conduct of federal elections is fi nal and cannot be supplanted or perhaps even supplemented by the state’s courts. “It’s not an argument that, be fore Bush v. Gore, would have oc curred to a lot of lawyers, but it’s their best claim to make,” Richard H. Pildes, an election law expert at New York University Law School, said on Thursday. “It’s amazing how close” the parallel arguments are, said Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles. “It shows that Bush v. Gore can rear its head in lots of ways that we can’t anticipate. It’s out there for everyone to use for their different purposes.” The New Jersey justices, ruling unanimously on Wednesday, said the expired deadline for ballot changes could be overlooked be cause the state’s election laws should be “liberally construed” in favor of “a full and fair ballot choice for the voters of New Jersey.” The decision had distinct echoes of the Florida Supreme Court’s unanimous decision on Nov. 21, 2000, which extended the deadline for counties that were conducting recounts to transmit their election returns. As its “guid ing principle,” the Florida court said it wanted to honor the “will of the people” rather than fall back on “hyper-technical reliance upon statutory provisions” that would have made the late returns invalid. One difference between the two cases is the point at which the Supreme Court’s intervention is being sought. In Florida, the elec tion had been held and the ulti mate question was who would be declared the winner. The question in New Jersey is one of access to the ballot. “The worst that can happen is that their guy has to run in a com petitive election,” Hasen said of ■ the New Jersey Republicans. Another difference, of course, is that the New Jersey case does not ar rive at the court on a clean slate. Al though to much of the public, Bush v Gore may seem a bad dream now faded in the mists of time, to the jus tices it is a vivid reality. This is where psychology, rather than actual law, enters the equa tion. The court has essentially com plete control over its docket. The new court term, which begins Mon day, could well include such major issues as campaign finance, affirma tive action and constitutional limits of the war on terrorism. To this volatile mix, does the court really want to start the year off by adding Bush v. Gore the se quel? On the other hand, can any one who lived through Bush v. Gore the original really be confi dent of the answer? 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