Why is no one addressing the obviously relevant language from Bush v. Gore:
"The question before the Court is not whether local entities, in the exercise of their
expertise, may develop different systems for implementing elections. Instead, we are
presented with a situation where a state court with the power to assure uniformity has
ordered a statewide recount with minimal procedural safeguards. When a court orders a
statewide remedy, there must be at least some assurance that the rudimentary
requirements of equal treatment and fundamental fairness are satisfied."
The Court already distinguished Bush v. Gore from the case just decided by the Ninth
Circuit.
Also, why is no one addressing the very obvious res judicata problems here? These
same parties brought this very same suit 3 years ago. There was a settlement, in
which all agreed that the punch card ballots were not unconstitutional, only obsolete.
The settlement, entered by way of a formal judgment, specifically authorized the
continued use of the punch card ballots through March 1, 2004. The 2002 elections (at
which Davis was re-elected, by the way) were held under the terms of this settlement,
as were numerous other county and local elections using the punch card systems. Once
the plaintiffs realized they had a res judicata problem, they added another group, but
the same attorneys, same claims, etc. as the prior case. This reeks of raw partisan
politics. No court should participate in it.
John Eastman
-----Original Message-----
From: Bill Funk [mailto:[EMAIL PROTECTED]
Sent: Mon 9/15/2003 1:42 PM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: Ninth circuit and the recall
Howard Gillman wrote:
All right, so we’ve all heard the news. Two quick questions,
testing the current common wisdom of the list:
* Will the SC intervene?
* If so, how will Rehnquist, Scalia, and Thomas vote?
Can anyone read the 9th Circuit decision without seeing it as a challenge to
the Supreme Court's suggestion in Bush v. Gore that the decision there was "limited to
the present circumstances, for the problem of equal protection in election processes
generally presents many complexities"? Can the Supreme Court not hear the case
without unleashing Bush v. Gore's equal protection analysis broadly into the electoral
arena? I can see the liberals chuckling at the irony while voting to deny cert., and
the conservatives cursing under their breath while voting to grant. And that's
without even considering the 9th Circuit's decision as an attempt by Democratic judges
to forestall Davis's recall. The belief that Democratic judges on the Florida Supreme
Court were trying to steal the election was, after all, what animated the Supreme
Court to take cert. in the first place.
Bill Funk
Lewis & Clark Law School
