Strengthening Constitutional Self-Government

No Left Turns

Reclaiming the Title

I should have an article up tomorrow talking about the Ninth Circuit’s opinion. Suffice it to say, the court applies an overly broad reading of Bush v. Gore, and creates a nebulous standard which would seem to place ever increasing obligations on the state.

More importantly, this seems to be the Ninth Circuit’s attempt to make clear that the Florida Supreme Court was just a flash in the pan, and to reclaim their rightful title as the real extremist court. The decision brings to mind the Simpson’s episode in which the family does a modified version of Hamlet. When a character begins to act out of sorts, Lisa, playing Ophelia, proclaims: "No one out-crazies Ophelia!" So with the Ninth Circuit.

Discussions - 2 Comments

Robert I read your article on NRO this morning with interest. I am no lawyer but I am seem to recall the prattling press making a big deal about the Bush V Gore decision as not setting any precendent. Some Latin term for which I dont speak the language. If in fact that is the case then what is the Appelate court doing quoting it in there decision?

1. Per Curiam Opinion:

"The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U. S. C. §5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause."

"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."

"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

"Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. §5, Justice Breyer’s proposed remedy--remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an "appropriate" order authorized by Fla. Stat. §102.168(8) (2000)."

Please note the U.S. Supremes deference to Florida’s election code, a lesson from Bush v. Gore the 9th Circuit panel choose to disregard. What is about Statist-elitists that doesn’t allow them to accept the democratic political decisions of "the People"?

2. Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, concurring.

"In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Cf. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938). Of course, in ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U. S. Const., Art. IV, §4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them. Article II, §1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance."

"Article. II.[Section 1.] Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

Please note that only reason the U.S. Supremes choose to act in the Bush v. Gore case was the constitutional (Constitution of the United States of America - Article III. Section 1. Clause 2) requirement that the "manner" of Presidential elections was left up to the various States’ Legislatures, as provided in the "text" of the State’s Election Codes. Again, this 9th Circuit Panel ignored this wise admonition for the Federal courts to embrace a Federalism-type approach before considering to muck-around with obvious State "political" processes.

In order for the 9th Circuit Panel to pin their hats on Bush v. Gore, the U.S. Supremes would have had to thrown out all the votes tabulated on "punch card" ballots in the State of Florida in the 2000 Election, and for them to have order a new election, using a different system of voting. They didn’t. They accepted all the election systems that existed in Florida as of November 7, 2000 that had been mandated by the State Legislature - including "punch card" ballots!

The only way for this 9th Circuit Democrat "Dream Team" panel to determine that THEY can halt the constitutional recall process approved by "the People" of California is for them to discover a "right" for the "Democrat Party to always have its own way in all matters involving the election process" hidden amongst the penumbra in the Constitution of the United States of America. The pattern of Democrat controlled courts in this country handing election victories to the Democrat Party that they could not win at the polls is getting to be the "rule".

Perhaps now is the right time to consider the Amendment to the Constitution of the United States of America suggested by Thomas Jeffererson, to require that all Federal judges be "re-affirmed" by a straight "up or down vote" in the U.S. Senate, every 6 years. I bet this would do wonders to cure the Democrats reliance of Judicial nomination filibusters.

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