(From the diaries -- kos)

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. Anton Scalia

Bush v. Gore

December, 2000

Fellow diarist Libertarian Friend notes that some of the asylum dwellers over at the National Review are experiencing intermittent flashes of rationality, which have led some of them to doubt the wisdom of the GOP's strategy of tying up the Minnesota Senate race until hell freezes over or the Obama Administration is overthrown by the Glenn Beck militia movement, whichever comes first. Ramesh Ponnuru runs up the white flag:

If [Coleman] keeps up the fight, he is likely to lose, unnecessarily deprive Minnesota of a second senator, end his political career seen as a sore loser, and hurt his party in a state that is eager for this fight to be over.

Ponnuru doesn't mention it, but I can't help but wonder whether the prospect of Norm Coleman before the Supreme Court, a highlighted copy of the 14th Amendment in hand, doesn't have something to do with his (and Powerline's Scott Johnson's) sudden conversion to cheese-eating surrender monkeying.

Maybe I'm wrong, maybe it was the electroshock therapy. But I've suspected for some time that conservatives would eventually have serious reservations about where Norm and his mouthpieces are trying to take them. Maybe it's finally dawning on some of them that making a federal case out this election contest risks a long-term disaster for the GOP -- one that would completely outweigh the short-term benefits of depriving the Democrats of their 59th vote.

After all, what Norm is threatening to do -- if he can't get his way in state court -- is to demand that the US Supremes go storming through the equal protection door they opened just a crack, and then promptly tried to close again, in Bush v. Gore.

But if we're really going to start vigorously applying the 14th Amendment to how votes are cast and counted in this country, then a whole bunch of GOP-friendly election realities are going to be open to constitutional challenge. How, for example, is it "equal" for poor and urban precincts to have 1/5th the number of voting machines per capita as wealthy surburban ones? Is it "equal" for election officials to routinely deny elderly, undereducated or inexperienced voters the assistance they need to understand complex, confusing and/or poorly constructed ballots? Is it "equal" for prosecutors to aggressively pursue registration fraud cases against ACORN, while generally ignoring those against GOP-leaning groups?

Can you say "disparate impact"? How about "protected class"?

You really can go on and on with this -- which is precisely why Scalia and company tried so very hard to make their power grab a "good for one use only" ticket. But now Norm is putting their handwork at risk. And who knows? By the time his case reaches the US Supremes, maybe there will be a few new faces on the bench, liberal faces, faces that wouldn't mind at all taking Scalia's legal legerdemain and shoving it right back up his runty ass.

Sigh. A guy can dream, can't he? Back here in the real world, the US Supremes probably wouldn't come within a country mile of granting Norm cert, not unless it's to take a nail gun to that equal protection door. But does the Republican Party really want to take that risk?

Clearly, Norm is down with it -- that is, if he can remain one step ahead of the FBI. His patrons and benefactors in wingnut fantasy land and the House and Senate Republican caucuses (ah, but I repeat myself) also appear blithely unconcerned. (Who could have imagined leading GOP politicians would be so clueless and short sighted?) But maybe, just maybe, some of the party's "thought leaders" are having second thoughts.