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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.

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.

Rubenfeld's article refers to the 12/4/00 Bush v. Palm Beach County Canvassing Board decision.  That unanimous decision, as Rubenfeld notes, held:
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.

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."

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.

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.

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.

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:
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.

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.

If only Rubenbeld could've been interviewing Scalia instead of a CNN talking head.
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Comment Preferences

  •  Tip Jar (18+ / 0-)

    Some men see things as they are and ask why. I dream of things that never were and ask why not?

    by RFK Lives on Thu Jul 19, 2012 at 01:54:43 PM PDT

  •  Salia should go hunting with Cheney more often.n/t (6+ / 0-)
  •  Scalia tipped his hand there (6+ / 0-)

    He thinks Bush v. Gore is a make-up call for the 1960 presidential election.

  •  thanks for a great diary ! nt. (2+ / 0-)
    Recommended by:
    RFK Lives, sebastianguy99
  •  for that they should burn in hell. (5+ / 0-)
    Recommended by:
    BlackSheep1, SCFrog, sfbob, Bob Love, scilicet

    Consider by contrast, a Gore presidency:

    Gore was notably close to the US Intelligence Community, so he would have taken the CIA warnings about a pending AQ attack seriously.

    Had Gore's bill requiring strengthened cockpit doors been passed, rather than blocked by Republicans, it would have provided yet an additional layer of safety.

    9/11 would not have happened.

    The WTC towers would still be standing.

    The Pentagon and a field in PA would not have had gaping holes in them.

    Some 5,000 Americans who died that day would be alive.

    The service members who died in Afghanistan and Iraq, or were seriously injured there, would be alive and well.  

    The civilians who died in those wars, would be alive and well.

    The name Bin Laden would still be relatively unknown to most Americans, and he would have been taken out in consequence of the AQ bombing of a US Navy ship during the Clinton administration.  

    Al Qaeda would never have gained brand equity in the world.

    The people who died or were harmed in Hurricane Katrina would be alive and well.

    The economic downturn that followed 9/11 would not have happened.  

    The real estate bubble would not have happened.

    The economic crash of 2008 that followed from the real estate bubble, would not have happened.

    We would be eight years ahead, rather than eight years behind, dealing with the climate crisis.  

    That list isn't even complete, of the consequences of that Supreme Court decision.

    So yes, everyone who was part of that decision deserves to burn in hell.  What they did is absolutely unforgivable.  And "we didn't expect all that shit to hit the fan" is no more an excuse, than it is for the drunk driver who squishes a kid.

    "Minus two votes for the Democrat" equals "plus one vote for the Republican." Arithmetic doesn't care about your feelings.

    by G2geek on Thu Jul 19, 2012 at 03:00:31 PM PDT

  •  My guess is... (1+ / 0-)
    Recommended by:
    Bob Love

    ...it would be an economic boom time for USA.  President Gore would have provided sustaining energy to an already excellent economy.

    As for Scalia - his is a sham of a SC justice.  He cares not one whit for the high office he holds.  He's totally comfortable playing politics instead of constitutional law.  SHAME!

  •  Note how careful Scalia was in saying (1+ / 0-)
    Recommended by:
    scilicet

    "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."

    Fact is, that "extensive research" also showed that a statewide recount showed Gore did in fact win Florida.

    Scalia knows exactly what he did, which was to prevent a full recount by playing with due dates. And no, America will never get over it.

    "I was a big supporter of waterboarding" - Dick Cheney 2/14/10

    by Bob Love on Thu Jul 19, 2012 at 06:30:08 PM PDT

    •  Exactly! Scalia was weasel-wording (1+ / 0-)
      Recommended by:
      Bob Love

      saying "if what Al Gore wanted done had been done." He knew (as the interviewer apparently did not) that the FL Supreme Court had gone beyond what Gore had petitioned it to do. (Gore I'm sure was taking into account that Republicans were in an ugly frenzy, and that the media was with them.) But the Florida court ordered a statewide recount of both overvotes and undervotes. (Gore had requested only one type, and that's also been a source of confusion. With only one of the two types counted, it's harder to say. But Gore was the clear winner with both counted.) The fact that Scalia phrased it so narrowly speaks volumes.

      He was just as dishonest about precedent and the Constitution when discussing Roe v. Wade imo.

      I don't know when an interview has left me more furious. Even just the fact that he stooped to this and then pretended he was talking only law not politics was disgusting.

      "Oh, well, of course, everything looks bad if you remember it." M̶i̶t̶t̶ ̶R̶o̶m̶n̶e̶y̶ Homer Simpson

      by scilicet on Thu Jul 19, 2012 at 08:22:32 PM PDT

      [ Parent ]

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