Gee, Ken:
As a member of the bar, I find surprising your cynicism of J. Scalia's analysis. Granted we're all a bit partisan here, but if you would put on your advocate's cap, it is certainly not difficult to appreciate the concern J. Scalia's was having to allow the manual count to go forward, particularly when the guidelines set forth by the Florida SCt. were viewed prima facie to be unconstitutional as violative of equal protection and due process of law.
Certainly you can understand the importance of maintaining the legitimacy of a presidential election that has already put placed upon thin ice by the efforts of the Gore campaign and the apparent complicity of the Florida SCt. To allow a manual count to go forward that would produce a different result, or even the same result but by an extremely narrower margin, only to later rule that such recount is invalid on unconstitutional grounds, would only serve to undermine the Presidency and further weaken an already divisive country. Simply put, the stay was issued to implement damage control that would have been extremely difficult, if not impossible to repair.
While travelling this weekend I was surprised to learn of the Florida SCt's ruling after getting to my hotel. I was glad to learn that a manual recount had been order on a statewide basis across ALL Florida counties, but was troubled by the Florida Court's failure to impose ASCERTAINABLE standards by which ALL county canvassing boards could "interpret" all under and over vote ballots in an equitable manner by type of voting method (i.e. punch card; optical scanner, etc.).
The Gore argument that the proper standard is "the intent of the voter" is disingenuous, if not ludicrous. Although it is argued to be a GENERAL standard, it undoubtedly will lead, and has lead (in the case of Broward v. Palm Beach previous recounts), to different results with sufficient variance as to alter the outcome of the election. The ONLY manual recount that would be constitutional, IMHO, and comport with equal protection would be one where the Florida Court imposed unambiguous standard where all ballots similarly situated would ALL be treated alike (i.e. NO DIMPLE BALLOTS!).
So, I ask, why did the Florida SCt. not do this? To respond that the legislature has left it to the local canvassing boards is to sidestep the issue completely, which BTW, is exactly what the Florida SCt. did. But, then I would ask, if the Florida Court had no reservations about re-establishing expressed statutory dates, then why would it be credible to believe their rationale for not imposing a true standard? Why? Because this Court has jumped through hoops to give the Gore campaign more than it ever dreamed of.
If there is any damage to be everlasting here, its going sit with the Florida SCt. Because of the significant attention among both the lay and legal community, the reputation of this Court has been dramatically diminished, and is likely to linger for some time to come. All for the sake of Al Gore. Let the history decide whether their embarrassing jurisprudence was worth it. JMO. |
