Saturday, May 31, 2008

Clinton v. Obama

I think we are about to see Bush v. Gore overturned as a flawed ruling, rightfully so, but in a Supreme Court case called Clinton v. Obama.

No, this is not a blessing in disguise. It's an outright nightmare.

The Clintons have been enthusiastically trying to sell the public on one version of reality that says Hilary has the popular vote. Indeed, if you count or discount the Iowa, Nevada, Maine, and Washington caucuses and count the Michigan and Florida voter numbers, which the DNC has implicitly agreed to by awarding half-delegates to these voters, Hilary Clinton does, in fact, have the popular vote.

Let's pretend for the sake of my argument that the half-delegate consensus compromise stays, even though I believe Hilary will find some legal reasoning for districts to be awarded a full-delegate by the DNC, as a half-delegate award is, from a negotiator's point of view, a mere stepping stone for the eventual full seating of those delegates, which is a win for the Clinton camp. But let's pretend the half-delegate compromise stays in tact.

With Hilary winning the popular vote, but losing the delegate count, memories of the 2000 election will certainly surface. This might cause enough outrage for Hilary to feel justified going to the courts to evoke Bush v. Gore, where the irreparable harm and equal protection clauses were of issue. If the same interpretation as Bush v. Gore was used in Clinton v. Obama, Hilary would win the primary because the districts would be given a full delegate and not a half-delegate. This would probably occur in a lower court than the Supreme Court.

But this is an interesting situation. If a lower court performed the actions I described above, the case would probably be taken to the Supreme Court, whose members still consist of some people involved in the 2000 debacle. How would they react? Uphold Bush v. Gore, and give Hilary the delegates she needs, even though she is their "arch-enemy?"

Or would they reject Bush v. Gore?? And would they do this out of spite for Hilary or because they know it is a terrible ruling?? How does the fact that many current members were appointed by Bush?

I'm not a lawyer so I can't make any real predictions - but I think Bush v. Gore could come into play in the Democratic primary beyond mere rhetoric. It is very interesting.


Blogger Austin 5-000 said...

I sincerely doubt that Bush v. Gore would have any relevance to any Clinton/Obama litigation. Bush was an equal protection decision: the court ruled that since there was no standard for tallying up votes using different systems in the different Florida counties, some votes would be counted unequally because of the different standards.
Here, we're talking about something completely different: different votes are being counted differently because of the Democratic party's nomination system. I'm not sure whence a constitutional challenge would be based: there is no constitutional right to vote (esp. not in a Dem primary), and there are no laws under which Michigan and Floria voters are not being given equal treatment. As a practical matter, courts have been extremely deferential to political parties.
Will Hillary sue? I don't think so. Doing so would leave her without a party with which to win an election. Right now, she has to at least pretend she will go all the way, but that's the brinkmanship that comes with the territory.

9:36 PM  
Blogger dchan said...

You're forgetting one crucial detail - the decision in Bush v. Gore is unique in that it is the only Supreme Court decision that contains a clause stipulating that it is only limited to that ruling.

10:20 PM  
Blogger Robot said...

dchan's right: it's in "Recount"!

7:31 PM  
Blogger John Liberty said...

This might mean I need to go to grad school.

10:55 AM  

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