PRECEDENT?….I’m confused. The California Supreme Court has tossed out Gray Davis’ pathetic attempts to prevent the recall from going forward, but in the LA Times today Richard Hasen suggests that Davis might yet prevail in federal court because California still uses punchcard voting machines in some precincts but not in others:

During the 2000 election controversy, the U.S. Supreme Court held in Bush vs. Gore that it is a violation of the equal-protection law to value one person’s vote over that of another. After that case, voting rights organizations challenged punch-card voting in four states, including California.

California settled its suit and agreed to phase out punch-card voting by March 2004. Illinois did not settle, and a federal district judge held that the use of punch-card voting indeed constitutes an equal-protection violation under Bush vs. Gore.

Now it’s true that Bush v. Gore was partly decided on equal protection grounds, but even the Supreme Court itself realized how risible those grounds really were. So risible that they specifically excluded the possibility of using their decision as a precedent in other election cases:

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

So while it’s possible that a federal judge could rule that the selective use of punchcard ballots violates equal protection, they couldn’t base that decision on Bush v. Gore, could they?

But even more to the point, where’s the Volokh Conspiracy in all this? Shouldn’t they be analyzing the law for the rest of us?