High Court May Again Be Cast Into Election Controversy

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Creaky voting machines, hanging chads, last-minute dashes to the courthouse and the looming possibility that the Supreme Court will have a decisive role in a major election. Haven't we been here before?

The legal battle over the California recall has obvious parallels to 2000 and the Supreme Court ruling in Bush v. Gore (search) that effectively called the deadlocked presidential election for George W. Bush.

Both cases involve the mechanics of voting and voters' constitutional rights to have their ballots counted. Both also involve state rules for running elections and allegations that lower court judges were biased toward Democrats.

Many lawyers and law professors are predicting the justices will decide to stay out of the California fight once it reaches the court, probably this week. But they said the same thing three years ago.

Strong criticism of the court after the 2000 ruling increases the probability that the court will stay on the sidelines this time, lawyers said.

"I'd say the Supreme Court doesn't want to touch it with a 50-foot pole," said Stephen Gillers, a constitutional law professor at New York University (search) law school.

A ruling by a panel from a federal appeals court Monday sets up the prospect that the Supreme Court could choose whether the recall election should take place Oct. 7 as scheduled. As in 2000, the losing side could ask the Supreme Court to put the lower court's ruling on hold and hear the case on an emergency basis.

If neither the full 9th U.S. Circuit Court of Appeals (search) nor the Supreme Court steps in, the recall vote would probably be put off until March.

The delay was sought by the American Civil Liberties Union, the NAACP and other liberal-leaning groups that contended obsolete voting equipment could disenfranchise poor and minority voters.

Conservative activists and legal scholars criticized the Democratically appointed panel of judges as politically driven, the ruling as flawed.

"Where do three unelected federal judges get the temerity, let alone the authority, to just tell the people of California to `never mind?"' asked Pepperdine University law professor Douglas Kmiec.

In 2000, Republicans criticized the Florida Supreme Court, all appointed by Democrats, for allowing ballot recounts sought by Democrat Al Gore. The Supreme Court put that ruling on hold, then ruled that the recounts must be stopped in part because recounting suspect punch-card ballots — those with the infamous "hanging chads" — would be too unreliable.

Democrats then accused the five-member high court majority, all named to the court by Republican presidents, of reaching a partisan result.

It might be easier for the Supreme Court to stay out of the fray this time because less is at stake, lawyers said. The case concerns a state rather than national election, and there already is a sitting governor. In 2000, the presidential election was to fill the job at the end of President Clinton's second term.

The court's involvement in 2000 did not really set a precedent that applies now, lawyers said. And the Bush v. Gore majority took pains to say the ruling applied only in the unique circumstances of the stalled-out 2000 contest.

Still, the Bush v. Gore ruling itself will be Exhibit A in any Supreme Court appeal.

The California ruling relies heavily on the Supreme Court's reasoning in Bush v. Gore, and both sides will try to use the ruling to bolster their arguments at the Supreme Court, said Georgetown University constitutional law professor Mark Tushnet.

David Frederick, a Washington lawyer and expert on Supreme Court procedure, agreed.

"It does look like the 9th Circuit is asking the Supreme Court to decide whether Bush v. Gore is a ticket good for any other train than the 2000 election," Frederick said.