Bush v. Gore and the Political Question Doctrine

[Berkowit at aol.com]

Benjamin Wittes and I address that issue and more in _“The  Lawfulness of the 
Election Decision: A Reply to Professor  Tribe,”_ 
(http://www.peterberkowitz.com/lawfulness.pdf)  in 49 VILLANOVA LAW  REVIEW 259 (2004)
    Peter  Berkowitz
 
In a message dated 9/7/2006 2:18:00 P.M. Eastern Daylight Time,  
siegel at law.law.sc.edu writes:

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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