Is this Hillary Clinton’s Bush v. Gore moment?

The lawsuit filed by Clinton supporters seeking to close down the special “at large” caucus sites in Las Vegas casinos (and in the process to disenfranchise thousands of largely low income and minority workers) lost at least the first round in a hearing today.

It’s far from surprising that the Clinton supporters got their butts kicked. As I’ve noted before, courts have historically given wide leeway to political parties in how they conduct their affairs. (For a good discussion of the legal hurdles the plaintiffs faced, check out this excellent article in the Las Vegas Sun.)

But notwithstanding the litigation’s outcome in favor of Obama, the fact the case was even brought has now become a “fact on the ground” in the campaign: and one that may prove harmful to Clinton.

As I said a few days ago:

And by the way, in terms of the big picture, this was probably also a stupid thing to do politically. I can think of nothing that would be better calculated to turn off the Democratic base than for one of our own candidates to embrace the Bush campaign’s take no prisoners vote suppression tactics from the 2000 election and recount.

But before pushing the 2000 analogy too far, in fairness, we should probably take a closer look at whether the Nevada lawsuit can really be viewed as analogous to the Bush v. Gore case.

And, unfortunately, the answer, I think, is quite clearly yes.

Both cases involve attempts — tortured ones at that — to extend the protections of the Equal Protection Clause into the conduct of elections. To take a step back, it’s important to understand something about equal protection law: it doesn’t always work out the way one’s common sense might predict.

I remember when I was in college in Colorado, back in the mid-70s (shut up, you’ll be old someday too), one of my professors — a really bright guy — told the class about this great idea he had for a lawsuit: it upset him that when he traveled east down I-70 he could go all the way through Colorado and Kansas for free, but then, upon hitting Missouri (actually it’s the last 50 miles in Kansas), you had to start paying tolls. “I think some lawyer could have a hell of a case that this is a violation of equal protection,” he said.

To which the accurate response is, “Ah, well, actually, no. You’d be laughed out of court.”

The point I’m trying to make here, if at absurd length, is that you can’t consider the issue of equal protection based purely on what sounds unequal, because at the end of the day, everything is unequal. Equal protection law can only be understood through the prism of a long list of legal doctrines that have developed, in an often tortured and uneven way, over generations.

And the legal bottom line is that there’s generally nothing wrong at all, constitutionally speaking, with the government treating people differently, so long as there is some arguably rational reason for doing so. The major exception, of course, being so-called “suspect classifications” such as race, which may only be upheld for compelling reasons.

Turning specifically to the subject of elections, with the very important exception of the one man one vote series of decisions, courts have traditionally taken very much of a hands off attitude. There are a lot of reasons for this, but one of them is that given the way elections have historically been conducted in the United States, unequal treatment is the rule and not the exception. And the federal courts don’t want to be placed in the position of micromanaging elections.

It is this long history of jurisprudence, of course, which makes the intellectual dishonesty of the Bush v. Gore decision so offensively obvious. As I’ve noted before, not even the Supreme Court’s number one apologist on the decision, Judge Richard Posner, could bring himself to buy into the Court’s rationale:

But in the end, even he had to throw in the towel, unable to bring himself to swallow your equal protection excuse for handing the election over to Bush; so, instead, he fell back on one of the last refuges of a scoundrel (or in this case, of a scoundrel’s defender), gamely insisting that the Court had made the right decision, just for the wrong reason.

Trying to identify the greatest fallacy of the Bush v. Gore decision is sort of like trying to identify the most annoying thing about Rush Limbaugh: there’s just so much to choose from. But my candidate for super-infamy has to be the Court’s deliberate blindness to context when it declared the recount invalid due to the application of arguably inconsistent standards in counting one vote versus the next, while, at the same time, failing to acknowledge that the very same inconsistency had existed (only worse) in the original count of the ballots.

Sadly, this exact same illogic applies to the Clinton supporters’ suit in Nevada. They complain that the rules may end up giving the votes of the caucusgoers attending the “at large” casino sites greater weight than caucusgoers at other sites.

But regardless of whether this is right or wrong factually, it ignores the context of why the party UNANIMOUSLY decided to “discriminate” in this way: IT WAS BECAUSE OTHERWISE THE CASINO WORKERS WOULD BE SUBJECTED TO DE FACTO DISCRIMINATION BY BEING DENIED THE OPPORTUNITY TO PARTICIPATE.

Not a lot of teachers work on Saturday (the teachers’ union is, of course, one of the plaintiffs, although apparently much of the membership honorably opposes this action), but lots of casino workers do. If the state party had not made this accommodation for casino workers, they would have been entirely excluded from the process. So in seeking a court order to close down the casino caucus sites what plaintiffs are really trying to do is to replace one (arguable) inequality with a much worse one.

No, the 2000 analogy is all too apropos: This thing stinks from start to finish.

(Edited to reflect the Court’s decision.)

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11 Responses to “Is this Hillary Clinton’s Bush v. Gore moment?”

  1. Chuck Says:

    Told ya so! She ain’t nothin’ but an elephant in donkey clothes! If it hadn’t been for Diebold I doubt she would have won N.H.

  2. spmosher Says:

    Well clearly, trying to disenfranchise voters by limiting access to polling places is wrong. The states have final say in their voting policies. The democrats in charge of this are just as wrong as the Supreme Court deciding upon our presidents. Federal courts have no say in state politics.

    Clinton should lose for this, if for nothing else, unless she takes a stand against it and does something constructive to stop it.

  3. kouka96792 Says:

    Like Bill, who was one of the first to object-on her behalf-and Lieberman, she is a card-carrying member of the “centrist” DLC. I also understand that there are some card-carrying DLC “Republicans.”

    If I don’t think that a candidate is as far away from the center as I am, and I consider myself a left-leaning independent, I can’t see myself voting for that person.

    Bill fooled me twice, but I think Hill showed her hand too soon to do it!

  4. Larkrise Says:

    What good does it do to have a candidate as dirty as the Repugs? Trying to stop folks from caucusing is dirty politics. I am weary of backrooms, mudslinging and nasty stunts. Yes, that is the history of politics; but I am sick of it. So are a lot of people. Our image has been sullied enough. Canada has us on a list of nations that torture detainees. We dont need more ugliness in this campaign, in this election, in this country. So when are the BIG EGOS going to get the message? This campaign is endless. I suppose it will only get worse. In the end, whoever gets the nod, will be someone I have to hold my nose to vote for. That is discouraging. It is even more discouraging to contemplate voter disenfranchisement in the general election; and all of the corruption that gave us 8 years of unmitigated hell. To do basically the same thing is abhorrent and base. The Clintons are just enabling corruption in this case. As for Bush v. Gore, history will mark it as one of the most corrupt and wretched decisions ever handed down on the citizens of this country. The Rehnquist court will live on in infamy. The black of their robes will match the black of their souls. By enabling George W. Bush to steal the 2000 election, the Rehnquist Court signed a death sentence for thousands. They have nothing to be proud of and much for which to answer.

  5. johncp Says:

    More Hillary-hating garbage. This isn’t an argument between a democrat and a republican. This is a dispute between two democrats, vying for the nomination. Straining for effect, the author states classically, “…the answer, I think, is quite clearly, yes.(?)” The answer, “I think’ is quite clearly…(?) Later he pretends with almost astonishing absurdity, that ” The author, clearly more interested in injuring Clinton than supporting Obama, states that the Clinton’s got their “butts kicked,” only to admit that this was only “round one.” If this is round one, how can the Clinton’s have gotten their butts kicked? What’s really amusing, is that the author gloats over nothing, making a fool of himself, actually trying to derive satisfaction in this case, by supporting the decision brought down by courts, that he later attacks for their Bush v Gore decision. You can’t have it both ways. We hear the usual nonsense: the case “may prove harmful to the Clintons,” translation: the author HOPES it will prove harmful to the Clintons. “This was PROBABLY a stupid move by the Clintons;” translation, “I hope it was a stupid move.” His efforts to draw a similarity between this case, and the Bush v Gore one, “didn’t always prove to be one of common sense,” thereby underminig his argument further. The author also states that, whether a point he’s making is “right or wrong,”…what? If the point is wrong, it’s wrong, and there is no “whether” it’s right or wrong, to save it.

  6. Jeffko Says:

    Hey, I live in Vegas. I have to radically re-arrange my schedule, and I am not supporting Hillary or Obama. If everywhere in the state the percentages are 40-30-30 or something like that and then in the ONLY 9 voting places where there will be union (or any other type of bosses) it comes out 80-10-10 then I have been ripped off, so have my neighbors. These casino workers have 2 shifts of employees, plus the weekends off employees at home. Their voice will be represented by these people. The people who would be covering my hours where I work will be forfriting their chance to vote.

    If they had made EVERY place of employment a voting booth I am with you. This is not about you nationally, it is not about Obama or Hillary. It is about my vote and my neighbors vote being diluted. I have no special place to vote, why should anyone else, unless we all do.

  7. mikekohr Says:

    I am a backer of Senator Barack Obama and a believer in stayiing positive with respect to all Democratic candidates. I am focussed in our common desire to win back the White House from the party that has stained America’s legacy, weakened our nation, and hurt our people. I have been loath to voice open criticizm of our candidates or my fellow Democrats, but enough is enough.

    The Democratic Party I believe in, empowers and encourages participation of all citizens in the electoral process. To watch such desperate, calculated tactics that deny people the right to participate sickens me. This is a play straight out of the zero sum game plan of Karl Rove and Lee Atwater. We are better than that. This is beneath us.

    The judge ruled exactly right in this case. Regardless of whom a voter is likely to back, that voter’s voice needs to be heard. I hope with all my soul that such tactics are never again contemplated by our candidates or their supporters. And I hope a pound of flesh is exacted by the voters in Nevada to remind all politicians and their operatives, that such anti-American tactics will not be tolerated or condoned.

    mike kohr

  8. kroses Says:

    If one wasn’t a “Hillary Hater” before, this is the evidence to make me one now. How Republican a ploy! I thought we Democrats believed in democracy! Bill Clinton had me covering up for him for 8 long years, but those days are now gone. I am an Obama fan now! This was a Rovian ploy, and it backfired big time! I am finished with the Clintons forever, because they have now become the enemy using the “dirty tricks” once employed upon them. You’d think they would have known better!

  9. johncp Says:

    It’s amusing to read this tripe. What these Hillary-haters are failing or refusing to bring up, is that it has been strenuously brought up, that numerous Clinton supporters have received threats and intimidation from the people in the Culiary workers union, making it nearly impossible to participate in union activities.

  10. alwayshope Says:

    If you are a Hillary supporter, why not use this space to extoll her qualifications to be our president? Words like fool and tripe are a rather harsh way to begin the discussion. I don’t believe you should throw the hate around so freely. The people here are not haters. They may get angry and express that freely, but hate? No.
    Please, sit awhile, let Chuck buy you a beer.
    Let’s all calm down and at least agree that maybe Jeffco had the right idea?
    A way for all people who want to vote is the best solution.
    Perhaps extending the hours as well as available sites would help.
    Instead of parsing sentences. let’s get down to the substance of fair elections.

  11. Chuck Says:

    Steve: Let me know when my bill gets too high again.

    From Steve: You can get back to me about it after you pay off those gambling debts.  The constant calls from Vegas are getting old.


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