well, actually recount law isn't a due process issue. Due process only applies to legal proceedings, not to participating in elections. That's more an equal protection issue.
The Courts have a basic principle -- when a case comes before them and letting matters proceed during the time they're hearing it will irreparably harm the appellant, they will put things on hold until they can consider the merits. I'm not saying there weren't political considerations at issue here, on both sides of the Court. But what they did was nothing unique.
The other issue I didn't mention was the issue of ballot degradation. If O'Connor is right in what she asked, the standard for counting a vote might wind up being "did you comply with the instructions for casting a valid vote? if yes, it should be recounted. If no, it's your own fault and quit griping." (that's not the legal language, but it's what she was suggesting.) In that case, the manual recounts should ONLY be looking at fully punched out chads. But every time the ballots are handled they are degraded. So if they are hand counted now counting dimples and hanging chads and the like, and the USSC says okay, you can recount, but you can only count fully punched chads, the first handcount will have the danger of having converted some hanging chads into fully punched out chads, which changes the vote and is irreparable because you can never know which ballots those clouds of chads on the floor came off of, so you are no longer counting the ballots as they were cast by the voters. (Not to mention the Democratic operative who was running around with a ballot punching machine in his car.)
Doesn't matter whether it's getting the Presidency or eating the last piece of candy on a plate -- when it's gone, it's gone. That's the irreparable harm.
Not to say there aren't political considerations (by more than just Scalia). But his arguments weren't legally unreasonable. |
