Political cases – no one should be shocked – do go to the Supreme Court from time to time. In these cases, the facts matter as much or more than theory. I’ve been a litigation attorney for decades, I’ve often been a client in litigation, and I’ve sometimes been a judge. So my view comes from experience. That can be inferior to theory. But not always.
Bush v. Gore certainly was a political case. Perhaps it was the most political case ever decided by the Supreme Court.
Suppose its facts had been different. Imagine that George Bush had won the popular vote by a half million but had lost the electoral vote based on the first vote count in Florida. Suppose further that his brother the governor of Florida and the Republican legislature of Florida had aggressively pursued a recount in a couple of key counties. Would the Supreme Court have ended the recount?
Or imagine that Al Gore had won the popular vote by three million as did Hillary Clinton. And imagine further that the electoral result turned on 500 votes in each of Florida, New Hampshire and Tennessee. Would the Supreme Court have stopped the recounts in all three states?
I think the case would have come out differently with different facts.
If you agree with this assertion – if you think it might be true – then you would also agree that the various legal challenges to the National Popular Vote Interstate Compact would be less likely to succeed if the following facts were clear:
Not just 270 electors were bound to the Compact, but instead more than 300 were committed
The big majority of electors bound to the Compact reflected the enactment of this law in swing and red states
A big majority of Americans told pollsters that they understood and approved of the Compact
Some leading Republican elected official supported the Compact
In some swing and/or red states the voters chose the Compact as a measure on the ballot