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Will the Supreme Court Steal the 2008 Election

Will the Supreme Court Steal the Election for the Republicans in 2008? Will California Become the Next Florida?


Mark Karlin, Editor and Publisher,

To begin the BuzzFlash editor’s blog, I ran a series on how the Republican blitzkrieg to fill the federal bench with partisan hacks – beginning seriously with the Reagan Administration – has profoundly and negatively impacted the Constitutional balance of powers. We used the example of how D.C U.S. Circuit Court of Appeals Judge David Sentelle (and we have one or more installments on him to come) has been a Zelig at protecting the interests of Republican executive branch powers and illegalities, and how just one jurist can alter the course of democracy to serve partisan interests.

But for many of us, we need only go back to election 2000 to remember how despite lower court rulings to the contrary, Nino Scalia led a Supreme Court coup to put George W. Bush in power even though he had lost the national election by more than 540,000 votes and would have lost the Florida race if all the votes had been counted. Scalia’s original explanation of why the recount in Florida should be halted was based, he wrote, on the absurd and mind-boggling "concern" that, in essence, if all the votes were counted it might undercut the credibility of the presumed winner, George W. Bush.

In short, Scalia halted the right of a state to run its own election count because the results might make Al Gore the victor and, therefore, make it harder for Bush to assume the presidency once the Supreme Court made a decision to rule that the recount was not valid. So Scalia nullified the votes of American citizens so that he and the other felonious four could appoint Bush and Cheney before it could be determined that they had actually lost the election.

And so, after Scalia’s bizarrely illogical and legally untenable court order, the Supreme Court issued a ruling – in the dark of the night – that Gore had lost, but that the ruling would only apply to that particular case and would not set a precedent. In short, for Bush and Cheney, "we will make a partisan exception to the role of state’s rights in elections and the right of every vote to be counted." [BuzzFlash's quotation marks]

That brings us to the on-again, off-again, on-again effort (initiated and originally funded by a Giuliani backer) in California to place a referendum on the June ballot to proportionally award the electoral votes of the largest state in the Union. The inevitable result would be to give the Republican presidential candidate approximately as many electoral votes from the State of California as – let’s say – Ohio. Of course, as it currently stands without the passage of the proposition -- short of some GOP miracle -- California, the largest state in the Union, will award all its electoral votes to the Democratic nominee, whoever that might be.

So let’s say that the GOP's latest dirty trick (petition signatures are currently being collected, with charges that many people are being deceived about what they are signing) succeeds in getting the electoral split on the ballot in the California primary (some say that it might have to wait to be on the ballot until the November presidential election, but with wording that it would be effective for that election). And let’s assume that it passes (if it makes it to the ballot), which is a distinct possibility according to some polling.

Well, using a referendum process to alter the allocation of electoral votes by a proposition could become a Constitutional question, because it can be legally argued that such a decision is solely the province of a state legislature, as one possible challenge would contend.

So then let’s say that the Democratic Party or another plaintiff -- the Democratic Presidential Candidate -- asks the courts to declare such a referendum, if passed, as not legally enforceable. And let’s assume that the lower courts agree with the plaintiffs and award all the California electoral votes to the Democratic candidate for president.

So we are back to the end of 2000. The Republican candidate makes an emergency appeal to the Supreme Court to hear the case. Nino Scalia – or Roberts, Alito or Thomas – accepts the petition. Kennedy, one of the felonious five, is still on the court.

You got it; now a slightly altered majority (Alito replaced O’Connor) declare that the referendum process was legal and that the Republican candidate for president should be given a proportional share of the California electoral votes – and that allocation would potentially – considering the close electoral split between Dems and Republicans -- be enough to put the GOP candidate in the White House.

Of course, such a ruling would apply to this specific case in California in 2008, right?

Such things are not implausible. It happened in 2000.

It is what occurs when the Democrats confirm Federalist Society hacks whose loyalty is to the extreme right wing and the Republican Party, not to the Constitution.

It is, unfortunately, not a scenario for 2008 that can be easily dismissed.

Democracy can’t survive when one party controls the umpires.



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