Clinton v. Obama: The Lawsuit
By THEODORE B. OLSON
February 11, 2008; Page A19

What splendid theater the Democratic Party presidential nominating process is shaping up to be. And they are just getting started. The real fun would be a convention deadlock denouement a few months from now, the prospect of which is already quickening the pulses of scores of Democratic lawyers who have been waiting more than seven years for an encore of their 2000 presidential-election performances.

Press reports following super-duper Tuesday’s primaries and caucuses gave Sen. Clinton a narrow popular vote lead over Barack Obama. At the same time, Sen. Obama’s supporters were claiming a narrow lead among pledged delegates. The delegate count keeps changing, of course, and Sen. Clinton’s team is also claiming a delegate lead, based in part on a larger share so far of what are known in Democratic Party circles as superdelegates: 796 slots (20% of the total) set aside for members of Congress and a menagerie of assorted elected officials and party Pooh-Bahs.

These superdelegates, Byzantine hyper-egalitarian Democratic Party delegate selection formulas, and the fact that many delegates are selected at conventions or by caucuses rather than primaries, combine to offer the distinct possibility that by convention time the candidate leading in the popular vote in the primaries will be trailing in the delegate count.

How ironic. For over seven years the Democratic Party has fulminated against the Electoral College system that gave George W. Bush the presidency over popular-vote winner Al Gore in 2000. But they have designed a Rube Goldberg nominating process that could easily produce a result much like the Electoral College result in 2000: a winner of the delegate count, and thus the nominee, over the candidate favored by a majority of the party’s primary voters.

Imagine that as the convention approaches, Sen. Clinton is leading in the popular vote, but Sen. Obama has the delegate lead. Surely no one familiar with her history would doubt that her take-no-prisoners campaign team would do whatever it took to capture the nomination, including all manner of challenges to Obama delegates and tidal waves of litigation.

Indeed, it has already been reported that Sen. Clinton will demand that the convention seat delegates from Michigan and Florida, two states whose delegates have been disqualified by the party for holding January primaries in defiance of party rules. The candidates agreed not to campaign in those states. But Sen. Clinton opted to keep her name on the Michigan primary ballot, and staged a primary-day victory visit to Florida, winning both of those unsanctioned primaries. Her campaign is arguing that the delegates she won in each state be recognized despite party rules and notwithstanding her commitment not to compete in those primaries. Of course. “Count every vote.”

As the convention nears, with Sen. Clinton trailing slightly in the delegate count, the next step might well be a suit in the Florida courts challenging her party’s refusal to seat Florida’s delegation at the convention. And the Florida courts, as they did twice in 2000, might find some ostensible legal basis for overturning the pre-election rules and order the party to recognize the Clinton Florida delegates. That might tip the balance to Sen. Clinton.

We all know full well what could happen next. The array of battle-tested Democratic lawyers who fought for recounts, changes in ballot counting procedures, and even re-votes in Florida courts and the U.S. Supreme Court in 2000 would separate into two camps. Half of them would be relying on the suddenly-respectable Supreme Court Bush v. Gore decision that overturned the Florida courts’ post-hoc election rules changes. The other half would be preaching a new-found respect for “federalism” and demanding that the high court leave the Florida court decisions alone.

Would the U.S. Supreme Court even take the case after having been excoriated for years by liberals for daring to restore order in the Florida vote-counting in 2000? And, would Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, the dissenters in Bush v. Gore, feel as strongly about not intervening if Sen. Obama was fighting against an effort to change a presidential election by changing the rules after the fact? Will there be a brief filed by Floridians who didn’t vote in their state’s primary because the party had decided, and the candidates had agreed, that the results wouldn’t count?

In short, the way things are going so far, Sens. Obama and Clinton will probably be so close to one another in delegate count by the time of the convention that all those primary votes may be tabulated, but will turn out to be irrelevant to the outcome. Those 796 superdelegate politicians will decide who the candidate will be. Maybe no cigar or cigarette smoke this time, but back-room politics all the same. All those primary voters and millions in campaign expenses locked out of the room.

This may be one of those déjà vu fantasies that won’t happen. But it did happen before. And Florida has a quirky habit of popping up again and again in close presidential elections, having been a factor not only in 2000, but also the epic presidential election controversy of 1876. And Democratic lawyers have undoubtedly kept copies of the legal briefs they filed for Al Gore in 2000 into which their computers can easily substitute the name Clinton for Gore.

If it does happen, I’d be more than happy to loan Sen. Obama the winning briefs that helped secure the election of the legitimate winner of the 2000 election, George W. Bush.

Mr. Olson, a lawyer in Washington, D.C. and a former solicitor general of the United States, represented George W. Bush before the Supreme Court in 2000 in Bush v. Gore.