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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