February 11, 2008

Ted Olson Grabs His Popcorn

Rarely in life does one get to enjoy irony and karma as much as Ted Olson. Having borne the scars of the Gore v Bush lawsuits arising from the 2000 presidential election, Olson now sees a similar outcome, on similar grounds, in the exact same state. Calling it "splendid theater", the incompetent handling of Florida and Michigan likely will combine with a razor-thin delegate chase for the Democratic presidential nomination to produce litigation that will reduce the party to shreds.

Don't count Olson among the mourners:

How ironic. For over seven years the Democratic Party has fulminated against the Electoral College system that gave George W. Bush the presidency over popular-vote winner Al Gore in 2000. But they have designed a Rube Goldberg nominating process that could easily produce a result much like the Electoral College result in 2000: a winner of the delegate count, and thus the nominee, over the candidate favored by a majority of the party's primary voters. ....

We all know full well what could happen next. The array of battle-tested Democratic lawyers who fought for recounts, changes in ballot counting procedures, and even re-votes in Florida courts and the U.S. Supreme Court in 2000 would separate into two camps. Half of them would be relying on the suddenly-respectable Supreme Court Bush v. Gore decision that overturned the Florida courts' post-hoc election rules changes. The other half would be preaching a new-found respect for "federalism" and demanding that the high court leave the Florida court decisions alone.

Would the U.S. Supreme Court even take the case after having been excoriated for years by liberals for daring to restore order in the Florida vote-counting in 2000? And, would Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, the dissenters in Bush v. Gore, feel as strongly about not intervening if Sen. Obama was fighting against an effort to change a presidential election by changing the rules after the fact? Will there be a brief filed by Floridians who didn't vote in their state's primary because the party had decided, and the candidates had agreed, that the results wouldn't count?

As many of us argued at the time, the campaigns have to follow the rules as laid down at the beginning of the process. The Clintons' attempts to change the rules pertaining to Florida and Michigan, especially the former, undermines the rule of, well, rules in this case -- as it did the rule of law in 2000. They want to argue that the DNC violated the rights of Democrats in Florida and Michigan by stripping them of their convention delegates, and therefore "disenfranchised" voters.

But that simply isn't the case. The state parties in both places were warned not to break the scheduling rules that the DNC had established. They chose to break those rules, and so Florida Democrats "disenfranchised" themselves. Their own actions created their predicament. In that, a similarity exists to 2000 as well, since it was the Democrats in Palm Beach who created the "butterfly ballots" that supposedly created too much confusion for Democratic voters.

Barack Obama played by the DNC rules by removing his name from the Michigan ballot and declining to campaign in Florida. Now Hillary wants the DNC to seat delegates from both states so that she can benefit from breaking her word in both places. And Olson is probably right in that she will go to court to get them seated, especially in Florida. What does that tell us about a potential Hillary Clinton presidency?

Olson concludes his celebratory column by offering to send Obama and the DNC his winning arguments at the Supreme Court in Gore v Bush. Their use of that precedent would provide the crowning irony, and perhaps Olson's biggest professional triumph.


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