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April 4, 2007

Seeking to capitalize Bush v. Gore

ODPI has lots and lots of good stuff these days, and perhaps nothing more bemusing than this AP report from Florida:

An attorney hopes the landmark U.S. Supreme Court case that decided the 2000 presidential election will help persuade a judge to keep his client from being executed for two murders he is charged with. David Brener cited the Bush vs. Gore case in a motion last week asking the judge to eliminate the possibility of the death penalty because of inconsistencies in the way different state attorneys decide to seek the sentence.

In the 2000 Bush vs. Gore case, Brener noted, the U.S. Supreme Court criticized counties that had different standards for recounts and deciding what a legal vote was.  He contends that standards for the death penalty are just as inconsistent.

April 4, 2007 at 01:49 PM | Permalink


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This attorney's reasoning doesn't appear to be any more "bemusing" than the Supreme Court's use of those principles in Bush v Gore.

If the Supreme Court felt these principles should apply to the determination of who sits in the oval office, why shouldn't counsel invoke the same constitutional principles to stop the unconstitutional selection of who sits in an electric chair or execution gurney?

Posted by: AGH | Apr 4, 2007 3:57:46 PM

I have cited Bush v Gore several times
in motions challenging unequal treatment
of defendants based on county of
prosecution. I think Bush v Gore recognizes
that geographic discrimination, treating
residents of one county differently than
residents of another can support an equal
protection claim. bruce c.

Posted by: bruce cunningham | Apr 4, 2007 4:43:01 PM

Perhaps I am wrong, but didn't the Supreme Court issue a very limited (cough, political) holding, limiting the decision to the facts, essentially:

"The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Bush v. Gore, 531 US 98, 109 (2000) (per curiam).

Which is not to say people are not right in citing Bush v. Gore for very interesting (and unprecedented) equal protection arguments, but perhaps this is just an opportunity for the majority to own up to its political role in formulating the equal protection rationale.

Posted by: Alec | Apr 4, 2007 7:50:02 PM

There is nothing new or unusual about this argument. I would note that I see it in capital cases about once a week (or at least once every other week)somewhere in the country. The problems with Bush v. Gore not being applied to cases other than 2000 elections are legendary. I think the common thinking from the bar, or at least those I have discussed it with, is that Bush v. Gore should either be a rule of general application as it relates to the Equal Protection Clause or it is a naked piece partisan hackery; if it isn't the first it is the second.

Posted by: karl | Apr 4, 2007 9:51:22 PM

This argument came and went in Texas a while back, mainly on retroactivity grounds. See, e.g., Coleman v. Quarterman, 456 F.3d 537, 542-43 (5th Cir. 2006). But it also fails on its merits. See, e.g., Wyatt v. Dretke, 165 Fed.Appx. 335, 339-40 (5th Cir. 2006).

Posted by: Ed | Apr 5, 2007 11:50:49 AM

That unpublished merits opinion isn't authority.

Posted by: | Apr 5, 2007 1:33:00 PM

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