As per the always estimable Charles Pierce, Antonin Scalia is still publicly defending the Bush v. Gore decision in which he played such a vital role. As per his 12/9/00 opinion justifying a stay that served as a de facto decision on the merits:
" The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
One might hope that, 12 years later, the justice might want to just forget that the decision ever occurred. The majority opinion that he joined, after all, stated that, contrary to the core common law principle of stare decisis, the decision could not serve as precedent for any subsequent case. Sadly, as Scott Lemieux notes, Scalia just gave a CNN interview in which the following exchange occurred:
SCALIA: Contentious? Well, I guess the one that, you know, created most—most waves of disagreement was Bush v. Gore, OK? That comes up all the time. And my usual response is get over it. MORGAN: Get over the possible corrupting of the American presidential system? MORGAN: Justice Scalia? SCALIA: Look it, I—my court didn't—didn't bring the case into the court. It was brought into the courts by Al Gore. He is the one who wanted courts to decide the question which—when Richard Nixon thought that he had lost the election because of chicanery in Chicago, he chose not to bring it into the courts. But Al Gore wanted the courts to decide it. So the only question in Bush v. Gore was whether the presidency would be decided by the Florida Supreme Court or by the United States Supreme Court. That was the only question, and that's not a hard one. MORGAN: No regrets? SCALIA: Oh, no regrets at all, especially since it's clear that the thing would have ended up the same way anyway. The press did extensive research into what would have happened if what Al Gore wanted done had been done county by county, and he would have lost anyway.The 2000 FL recount remains one of the most searing incidents of my career, if not of my life. On the same date that Scalia and his 5 colleagues effectively decided the 2000 election, the NYT ran an op-ed piece by Yale law prof Jed Rubenfeld about the Seminole County absentee ballot case. This case was filed and shepherded through its early stages by one of my closest friends. There were enough absentee ballots cast in that county that were procured in technical violation of FL election laws to swing the presidency to Gore.
On 12/8/00 (the same date that the FL Supremes gave Gore a last-second reprieve in the recount case that Bush's attys appealed to the SCOTUS), a FL trial judge ruled against the Seminole County challenge. Another judge did the same thing in a similar case in Martin County. Rubenfeld noted the dilemma that these rulings should've presented to the SCOTUS' line of reasoning:
Two Florida judges refused yesterday to disqualify absentee votes in Martin and Seminole Counties, despite technical violations of state law. They made good, sound decisions, comporting with common sense and Florida case law. There's just one little problem — a problem that Florida's State Supreme Court will have to deal with if and when it hears an appeal. The two circuit judges committed the very same error that caused the United States Supreme Court last Monday to vacate the Florida Supreme Court's decision, on Nov. 21, extending a deadline for manual recounts.Rubenfeld's article refers to the 12/4/00 Bush v. Palm Beach County Canvassing Board decision. That unanimous decision, as Rubenfeld notes, held:
In that case, the federal justices demanded clarification from the state justices to ensure that the state court had not relied on Florida's Constitution, instead of following the directives of Florida's Legislature, in its ruling. Normally, a state court must follow a state constitution. But in presidential elections, the United States Supreme Court indicated, federal constitutional and statutory law make the state legislature the supreme authority, so that statutory requirements must be strictly complied with. The state courts have no power to depart from the legislature's commands on the basis of either equity or the state's constitution.
Normally, a state court must follow a state constitution. But in presidential elections, the United States Supreme Court indicated, federal constitutional and statutory law make the state legislature the supreme authority, so that statutory requirements must be strictly complied with. The state courts have no power to depart from the legislature's commands on the basis of either equity or the state's constitution.In short, applying the logic from the unanimous Palm Beach County Canvassing Board decision, absentee ballots in 2 counties should've been discarded, thereby swinging the election to Gore. The logic employed by 5 justices on the very day that Rubenfeld wrote his piece compelled it even more. Sadly, those 5 justices never had to face that dilemma b/c this argument was never really presented in the 2 absentee ballot cases.
But this seems to be exactly what the circuit judges unknowingly did in their decisions yesterday. The two judges ruled that the issues were governed by a 1975 Florida Supreme Court case, Boardman v. Esteva, which held that absentee voters need not "strictly comply" with the "technical" requirements imposed by the Florida Legislature.
"There is no magic in the statutory requirements," the court had said in the Boardman ruling, because the people's right to vote, guaranteed by the State Constitution, was paramount. "By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right."
For reasons that I've never quite understood, the decision-makers in the latter stages of the Seminole case chose not to push this argument. Again, as per Rubenfeld:
The Boardman ruling, in a case concerning an election contest over absentee ballots, unequivocally rejected "strict compliance" with "statutory requirements." It held that the people's right to vote should not be sacrificed to the "technical" requirements imposed by the Florida Legislature.Scalia does not know how lucky he and his 4 colleagues were. B/c of an argument that was never effectively framed at the trial court level or pushed on appeal, the following scenario never occurred:
But this line of reasoning is just what Mr. Bush's lawyers objected to in the Florida Supreme Court decision. That decision extended a statutorily designated seven-day deadline for certifying the results of the Florida counties' presidential votes. In reaching this result, the Florida justices, citing the Boardman case, stated that people's right to vote, guaranteed by the Florida Constitution, superseded mere "technical" requirements imposed by the Florida Legislature.
These were precisely the statements that caused the United States Supreme Court to set aside the Florida Supreme Court's decision. "Adherence to statutory scripture" is just what the federal justices have apparently demanded.
It appears the circuit judges committed a clear error by following Boardman. When the Florida Legislature expressly changed Florida law in 1998 to say that absentee voters must themselves supply their own registration information, it made its will and its requirements clear. These requirements may seem hyper-technical to an equitable judge. They may seem the sort of thing that should not stand in the way of people's right to vote. But under Monday's United States Supreme Court decision, the Florida courts are bound to apply Florida statutory law regardless of these considerations.If only Rubenbeld could've been interviewing Scalia instead of a CNN talking head.
As a scholar of constitutional law, I am obliged to say that I do not agree with the proposition that federal law somehow prevents Florida courts from upholding the Florida Constitution when applying state election laws to a presidential election. But the supporters of Mr. Bush earnestly wished to convince the United States Supreme Court of that proposition, and they apparently got what they wanted. Perhaps they should have been more careful about what they wished for.