Bush v. Gore and the Political Question Doctrine

Andy Siegel siegel at law.law.sc.edu
Thu Sep 7 11:11:58 PDT 2006

Whether that fact is a "problem" turns on what you think the political "question" is.  If 
you conceptualize the case as asking the United States Supreme Court to step in 
and decide a Florida intra-branch dispute as to what the state's laws say about how 
the state's electors should be picked, then a strong case can be made that the 
Constitution's text specifically allocates the authority to make that decision to 
Congress as part of its authority to count the electoral votes.  On this 
conceptualiztion of the case, the fact that the Florida courts had already participated 
doesn't pose a problem for the political question analysis.

--Andy Siegel

On 7 Sep 2006 at 9:53, Scarberry, Mark wrote:

> One problem, of course, is that there was another court that had
> already decided that the matter was justiciable (the Florida Supreme
> Court). The effect of the US Supreme Court refusing to act might not
> have been to leave the matter in the hands of the political branches
> of the US govt (or the Florida state govt) but rather, as a practical
> matter, in the hands of the Florida Supreme Court. The concurring
> opinion in Bush v. Gore (and the initial per curiam decision IIRC in
> the Palm Beach County case) reflect the concern that the Florida
> Supreme Court was inappropriately substituting its judgment for that
> of the Florida legislature.
> Mark Scarberry
> Pepperdine
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu on behalf of Douglas Laycock
> Sent: Thu 9/7/2006 8:56 AM To: conlawprof at lists.ucla.edu Subject: Re:
> Bush v. Gore and the Political Question Doctrine
> Louise Weinberg has a long article on Bush v. Gore, arguing, if I
> remember right, that they can decide questions about elections, but
> they can't decide the election, and that Bush v. Gore stepped over the
> line.  Whether she put this in terms of the political question
> doctrine I don't remember.  But it might have been hard to avoid
> talking about it.
> Quoting RJLipkin at aol.com:
> > Is there any literature  arguing for and against the political
> > question doctrine's applicability to  Bush v. Gore?
> >
> > Bobby
> >
> > Robert Justin Lipkin
> > Professor of Law
> > Widener  University School of Law
> > Delaware
> >
> Douglas Laycock
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI  48109-1215
>   734-647-9713

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