The lawsuit filed by Republican PACs against the Wisconsin recount argues that the “intent of the voter” standard for interpreting votes is Wisconsin is, as that in Florida, too vague to ensure that all votes will be counted equally, and therefore violates equal protection of the law. It may be important that BvG was a decision that the Florida Supreme Court had not interpreted correctly Florida law, and presently the Court is not revisiting a state Supreme Court case. Also, technically, BvG did not stop the recount. It just insisted that it be reinitiated under new standards and completed by the safe harbor deadline the next day, which was obviously impossible.

Some have argued that language in BvG disallows its use as a precedent, but this is ambiguous, and, according to wikipedia, it has been so used. Nonetheless, I think the Supes must be embarrassed by the decision, and the transparent cynicism and dishonesty of this attempt to use it again to shut down a recount will piss them off, particularly Kennedy, the historic swing vote. The case won’t be heard will till the 9th, and I wouldn’t guess it looks good, although a lot probably depends on whether the recount will have seemed to be making a difference by then. By which I mean, fi the lower court decides for the plaintiff, I think the Supes may step in. After all, if it is too late to restart the recount at that point, it would be the lower court’s own fault for not granting the halt and hearing the case earlier.

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