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Delay urged on Bush v. Gore sequel

Agreeing that a new Ohio case raises important issues on how or whether to apply the Supreme Court’s election ruling in Bush v. Gore, but arguing that the facts have already changed, a candidate for a juvenile judgeship in Ohio on Friday urged the Supreme Court not to get involved until at least after the two sides have more chance to find out just what the facts are.  Attorneys for Hamilton County candidate Tracie Hunter contended in a new brief that her opponent’s plea for a delay of a Sixth Circuit Court ruling requiring some vote recounting in their contest is premature, and that the case now stands on an incomplete record.

Hunter’s opponent, John Williams, who at one point was ahead by 23 votes in the tallying, on April 9 asked Justice Elena Kagan, as Circuit Justice for the region including Ohio, to block the Circuit Court ruling until after it acts on an appeal Williams plans to file, along with the Hamilton County Board of Elections. (A post discussing the application, 10A989, can be read here.)  Justice Kagan — or the full Court, if she shares the application with her colleagues — is not expected to act on the case until after Williams has a chance to reply to the new Hunter filing, probably next week.

Hunter’s lawyers argued Friday that Williams and the Elections Board have satisfied none of the requirements for a postponement of the lower court ruling.  But, in any event, they laid heavy stress on the fact that the other side had already had to notify the Court that they had a factual error in referring to the differences between “provisional” votes that the Board had chosen to count and those, a much larger number, it had refused to count.  With the change in facts as now revealed, Hunter’s counsel contended, Williams and the Board have had their legal arguments narrowed significantly.

The Court (or Kagan), the new filing asserted, should allow two sides to engage in discovery, to flesh out the vote-recounting process that must now go forward under the Circuit Court ruling.  There is a danger, the brief said, in basing any decision on an incomplete record; that point is illustrated, it added, by mistakes in one of the concurring judges’ opinions in the case.

“The better course,” the brief counseled, “is to allow the parties to conduct discovery and create a factual record, allow the District Court to finish the proceedings, and then decide whether this case merits this Court’s review.”

Recommended Citation: Lyle Denniston, Delay urged on Bush v. Gore sequel, SCOTUSblog (Apr. 15, 2011, 4:10 PM), https://www.scotusblog.com/2011/04/delay-urged-on-bush-v-gore-sequel/