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let’s do the time warp again!

Posted by pocochina on May 9, 2008

Anything short of full representation for Florida and Michigan is in NO WAY a good idea.

I do not want to hear about the Rulz. You are wrong about the Rulz.  You’re on the internet, so I’m going to assume you can click a link.  Read this post about the Rulz.  It contains analysis of the actual rules. I’ll wait.

I am not going to address the politics of it.  My supercalifragilisticexpialidocious co-blogger at HIK, Donna Darko, does a bang-up job of tracking the electoral math.  Not TEH MATH, which you have erroneously claimed for months now has won it for your candidate.  I mean the actual predictions (unscientific as they are, the best we have right now) of how states will vote in November. Go read what she has to say.  I’ll wait.

I’m going to do what I do, which is think about shit that I can remember and figger out a pattern.  And then, if the pattern leads to outcomes that suck, I’m going to go ahead and figure out – hold on to your fucking hat – a way to change the pattern that leads to the outcome that sucks.

I’m also going to take the charitable route and assume you’ve been unconscious for the last decade.  I have sympathy.  I understand what it’s like to be unconscious against your will.  I’ll walk you through a hypothetical, based on recent history, and put together a ripped from the headlines* hypothetical with enough allusions to recent events that you can probably figure it out.

The last two elections were elections that should have been a slam dunk for Democrats, just like this one.   But they weren’t.  They all came down to one too close to call state.  Gore fought it, Kerry didn’t.  Now, let’s put aside the suggestion (I happen to agree with it, but it doesn’t make it any more than a suggestion) that an Obama nomination makes this scenario more likely.  The four huge swing states a Democrat has to win are FL, MI, PA, and OH.  OH and FL have already had their walks of shame.  Risking putting MI out of reach is a foolish move (not to mention the anti-democratic bullshit that would motivate someone to disenfranchise all those voters, it’s bad politics), and PA went for HRC like whoa after some of the darkest weeks of her campaign.  But, just for the sake of argument, let’s make up a state.  TW, we’ll call it.

After a hard-fought campaign (you assholes think this is anywhere near as hard as the general will be?   Not on your life), it’s Election Night, and TW is too close to call.  Neither candidate can win without TW.  The winner will take the presidency. (This should really sound familiar.)  Nobody concedes.  Both candidates declare victory, everyone stays up watching poll counts and listening to inane babbling about exit polling and gestating chads and machinery and absentee ballots until 4 AM, dozes in front of the teevee for a few hours, and when we come to, neither candidate has conceded.  TW’s laws call for an automatic recount when things are this close (ringing any bells?), so pollsters, reporters (*shudder*), volunteers, party honchos, and campaign surrogates descend on TW.

Someone else goes to TW.  Some other group of people, with a specific role in the government/political process, who am I forgetting…..pollsters, reporters, volunteers….oh yeah.  THE LAWYERS.

Because without a bleeding frakkin’ doubt, there will be a lawsuit over this.  The candidate who’s ahead by a tiny handful of contested votes, which may or may not be due to quasi-legal irregularities (SOUND FAMILIAR?!) or outright voter intimidation (momma’s gonna break out her clue-by-four soon) isn’t going to want those votes counted, that candidate is going to want to keep the lead.  We’ll call that candidate R.  Candidate D is acting out of rational self-interest, yes, those are D’s votes, but D is also rightfully outraged over the voting irregularities.

Elections are run by the state government.  So this goes to TW’s Supreme Court, and  they say “whaaat, are you kiddin’ me with this?  Count the votes.  One comes before two, which comes before three.  Christ, you people have cushier jobs than we do.  March.”  And that’s if D is lucky.

It doesn’t matter how lucky D is at the state level, though.  Because R will file cert** at the Supreme Court, probably on the same day as he files in TW.  And R will get cert, and then it doesn’t matter what TW’s court said, because SCOTUS can hear any case it bleedin’ well wants to, as long as there’s some question of federal law involved.

Here, the clue-by-four stops, and the actual analysis begins.***  In Bush v Gore, the Gore legal team geared its analysis towards the swing votes, Kennedy and O’Connor.  They hoped Justice O’Connor, in particular, would be sympathetic towards an argument grounded in federalism, and the guarantor clause of the constitution, which has been read**** to put the states in charge of elections, even when those elections have a nation-wide impact.  She wasn’t, though, and she has been replaced by Justice Alito, who is burdened by no such dedication to legal theory.  (This guy makes Scalia look normal.  I’m not kidding.  It’s been a bad four years for the American judiciary.)  Justice Kennedy, more often than not, votes based on his warm, squishy feelings and the rest of us can fuck off and die.  (Yes, literally.) The justices voted along strict ideological lines – disappointing, and it led to a terrible decision, but that’s the way it goes, and the Supreme Court bar is there to figure out how to appeal to them.

Our only hope, our only prayer, our only shred of a sliver of a chance at keeping our democracy, in this hypothetical – which, may I remind you, has happened in the last two consecutive elections – is appealing to Justice Kennedy’s warm, squishy feelings.  You can’t do that unless you break out your very large clue-by-four to show him you have the moral high ground, and even then it’s a coin toss.

I am sure there are loads of very talented litigators working for the DNC, but even they will have a hard time keeping a straight face in front of the high court when they say “the Democratic Party implores you to count every vote.”  The RNC representative will spend the entire half hour saying “Did you hear the one about FLORIDA AND MICHIGAN?”  Especially if, as is not totally out of the question, our hypothetical TW is Florida or Michigan.  Again, I have no doubt in my mind that there are talented attorneys who can point out the critical legal differences between a primary and a general election – I can do it, and I haven’t finished my first year of law school yet.  But in principle, a vote is a vote, and a citizen who has exercised or attempted to exercise that right and been denied has a grievance the size of our entire history.  No amount of back flips will keep our hypocrisy from the light of day.

The Supreme Court will hear the case just to laugh in our fucking faces, if we don’t count Florida and Michigan now.

And we will deserve it.

*L&O.  Means based on something that actually happened, but slightly dramatized to make the issues pop.
**For my non-American f-list, “cert” is short for “writ of certiori.”  It’s just the court saying that it will hear a case.
***For real legal analysis, from an expert who was there, Supreme Injustice by Alan Dershowitz. Stay near a scream pillow, though, and wear a mouthguard, because you will flip your shit reading it.  I promise.
****This is law student ese for “my professor said so.”

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