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If a legal dispute over the presidential election Nov. 2 rushes headlong toward the Supreme Court this week, there’s an important new precedent that one side or the other can cite to keep the justices out of the fray. The case isn’t new in the sense of recent � the Supreme Court case of Marks v. Davis dates back to 1912 � but it is definitely brand-spanking new in the sense of being unknown and uncitable in any presidential election until now. If the lawyers in Bush v. Gore had known about it, history might, just might, have taken a different course. Why? Marks v. Davis stands for the proposition that the Supreme Court should butt out of election disputes until state courts finish their work. George Mason University School of Law professor Ross Davies has located an original of the decision not at the Supreme Court, but at the Kansas State Historical Society. Marks v. Davis is about to be published in a semi-official compilation of so-called in-chambers opinions of the Supreme Court due out this month, but just in case it’s needed in the election aftermath, Davies is posting it on the Web site of The Green Bag, the law review he edits. “Who knows? It might be relevant,” he says. In-chambers opinions, usually written by a single justice, are typically issued in response to emergency motions. The Supreme Court precedent that could come in handy in the election’s aftermath stemmed from a fast-breaking dispute over some rebellious prospective presidential electors from Kansas who wanted to cast their Electoral College votes for Theodore Roosevelt instead of William Howard Taft. Taft’s forces went to court. The case made its way to the Supreme Court on an emergency basis in late July of 1912, during the Court’s summer recess. Normally Willis Van Devanter, the justice assigned to hear such appeals from that circuit, the 8th, would have considered the case on his own, but he was vacationing in New Hampshire and could not be reached. Justice Mahlon Pitney was available at his New Jersey home, so he suggested an impromptu oral argument at the federal courthouse in New York City a few days hence. By the time of the Aug. 1 hearing, Van Devanter had been located, and he too was on hand to consider the case. After hearing vigorous arguments, that night they issued a rare two-justice in-chambers opinion, part of which was handwritten. Pitney and Van Devanter agreed the dispute over the electors raised a federal question. But in words that could resonate soon, they went on to say, “As courts are reluctant to interfere with the ordinary course of elections, whether primary or otherwise, as the rights asserted are not clear, but doubtful, and as the injury and public inconvenience which would result from a supersedeas or any like order, if eventually the judgment of the state court should be affirmed or the writ of error dismissed, would equal the injury which would otherwise ensue, we think no supersedeas or kindred order should be granted.” The terminology is dated, and the phrasing would have benefited from an editor, but the essence of the decision is this: In the midst of an election dispute, if ruling in favor of one side is likely to cause the same “injury” as ruling for the other side, the Supreme Court should just keep out of the dispute until the state courts sort things out. Sound like it could have pertained to Bush v. Gore? Yes, says Davies. “They are saying that what you do in cases like this is to balance the harms. And when there is a perfect balance of harms, the Supreme Court should not pick the winner.” Asked about the opinion, Thomas Goldstein of D.C.’s Goldstein & Howe, who was part of Al Gore’s legal team in the 2000 Bush v. Gore litigation, says Marks v. Davis might well become relevant in coming disputes. “The courts are now much more engaged in political disputes, but we can all hope that the justices this time will channel their colleagues from a century ago.” Davies “discovered’ the decision not long after Bush v. Gore, when he was flipping through old issues of his own review. Green Bag, named after the sacks that lawyers once used to carry their papers, published from 1889 to 1914, and was revived by Davies and others in 1997. A 1912 article told the story of the “faithless electors” litigation in Kansas, including the two-justice resolution of the case. When Davies searched for the full decision, he could not find it in the U.S. Reports, which publishes Court opinions, at the high court’s library, or at the National Archives, where old case files reside. A librarian at the Kansas State Historical Society located a file on the case that included what appeared to be an original copy of the decision. “It looks like the justices had it typed up and shipped it off to the interested institutions,” Davies says. “I recommended they take it out of the public file for safekeeping, because it’s a treasure.” In-chambers opinions such as Marks v. Davis, often neglected in legal scholarship, are gaining new visibility. Deputy Supreme Court Clerk Cynthia Rapp compiled as many as she could find in 2001, and Green Bag agreed to compile them in what turned out to be four volumes. Updates will be published annually, because justices keep writing in-chambers opinions. Chief Justice William Rehnquist has issued more than 100 during his tenure. The Court itself is silent on what weight litigants should give to in-chambers opinions. But Davies notes that justices themselves cite each other’s opinions and asserts that if the justices did not want anyone else citing them, they would say so. So, 92 years after it was issued, Marks v. Davis might someday soon be cited for the first time.

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