February 11, 2008

"I'd be more than happy to loan Sen. Obama the winning briefs that helped secure the election of the legitimate winner of the 2000 election."

Says Ted Olson, contemplating the prospect of a lawsuit, brought by Hillary Clinton in Florida state court, over the Democratic Party's refusal to recognize Florida's convention delegates. What if it makes the difference in the nomination and the Florida courts decide in favor of Mrs. Clinton? Would the Supreme Court step in?

15 comments:

JDAXC said...

Live by the lawyer. Die by the lawyer.

Bob said...

You think Gore would dispute this, saying that he was wearing the winning briefs?

Michael said...

Since I am no ConLaw expert, but wasn't BvG decided because it was a national election?

Isn't a party's internal primary process beyond scope of the US Supreme Court?

Middle Class Guy said...

The Democratic Party punished Florida and Michigan because they broke party rules. everyone, including Mrs. Clinton agreed.

The candidates, including Mrs. Clinton agreed not to campaign there and pulled their names off the ballot; except Mr.s Clinton.

She receives votes by default; she is the only Dem on the ticket.

Now she is going to sue over rules she agreed to abide by?

Better yet; was this all a pre-planned campaign tactic by the Clinton Machine?

Goatwhacker said...

Yeah I agree with Michael above. It seems to me a given political party can decide on their candidate by any method they want. In this case the ground rules were set and agreed to beforehand. I don't see where the Supreme Court would have a place in the dispute.

Roger said...

I'm with Goatwhacker and Michael---can't a political party establish whatever rules in wants for its internal selection processes? Dems knew what the rules were going in.

Fen said...

It would be a bad move for Hillary to contest Florida. Obama & Co would get shafted for playing by the rules. His voters would sit out the general election if she got the nom this way.

Zeb Quinn said...

The issues in such a lawsuit would be so very different from what went on in 2000 that it's hard to see how those old briefs could be helpful.

Chip Ahoy said...

This is fun.

Robert said...

Regarding the comments that primaries are internal matters for a party and therefore Bush v. Gore would not apply: not so fast. It's been a while since I took my Voting Rights class from Pam Karlan at UVA Law, but the 1965 Voting Rights Act and the 14th Amendment certainly apply to primaries. When a Southern state (such as Florida) so much as desires to move a polling place, it must get clearance from Washington. Let's remember our history: prior to the Civil Rights era, the southern Democratic primary WAS the election. No Republican could ever win a major election (the party of Lincoln anyone?).

Now, I have no clue whether the Supreme Court would delve into the current issue, but existing federal statutory law, case law, and the 14th Amendment certainly provides an opening if they choose to do so.

Roger said...

Robert: thanks for the information; I take your point about locations. Does voting act legislation also apply to such things as winner take all or proportional representation results?

Brian O'Connell said...

IANAL, but it seems to me that a successful lawsuit would entail the Florida supremes requiring the DNC to recognize and seat the Florida delegates.

This is very unlike 2000 which involved the FSC rewriting or re-interpreting intra-state rules. As far as this year's FL primary is concerned, Clinton won the election and no one disputes it. It's what happens with that win that is at issue.

If the FSC can tell the national Dem party what to do in Denver, it's not controversial at all that the USSC has the authority to review and possibly overturn it.

Fen said...

As far as this year's FL primary is concerned, Clinton won the election and no one disputes it

How did Clinton's name get on the ballot if the DNC told both her and Obama to stay out of Florida? Obama's name wasn't on.

Brian O'Connell said...

Fen, the story as I understand it is that Edwards and Obama removed their names from the Michigan primary while Clinton claimed that the do-not-participate pledge that she agreed to did not require her to remove her name from the ballot. Some have characterized that as quintessentially Clintonian.

Seeing that behavior, Edwards and Obama then declined to remove their names from the Florida ballot. So all three were on the FL primary ballot. And Clinton won it.

From within the scope of Florida itself, there are no issues or problems with the Florida vote. It was legal and no one contests the results.

The controversy only begins with what the DNC does with the results, which is outside Florida's scope.

Middle Class Guy said...

As far as this year's FL primary is concerned, Clinton won the election and no one disputes it



Clinton won nothing. She received votes she was not entitled to. She violated an agreement with the party. All she did was receive votes as the only candidate on the ballot. That is not a win.

In the real lworld it is called cheating. In Hillary's fairy tale world it is called the good fight against the evil party she belongs to.