I was with you until your concluding sentences. For some reason you insist that I agree with your mischaracterization of the equal protection concern of the dissenting justices (Souter and Breyer) -- that their issue with the majority was a mere disagreement as to remedy rather than a fundamental disagreement regarding the nature of the concern and the propriety of the Supreme Court reviewing it, or that the two dissenters held the recounts to be unconstitutional in any way. I will try one last time to tell you why I do not agree with that characterization.
These 2 dissenting justices first and foremost held that there was no basis to review the case at all. However, confronted with a bad decision by the majority to stay the ongoing recount, and thus confronted with the necessity of having to consider a case that they did not believe warranted review by the Supreme Court, they clearly would have affirmed the Florida Supreme Court, but remanded with instructions to add, in the administration of the relief granted by the FSC, a judicial substandard of the legislative "clear intent of the voter" standard in order to achieve greater consistency in the final ballot review which, under their decision, would have continued.
If the Supreme Court was to interject at all (which they viewed as unwarranted), Souter and Breyer would have added an additional remedial safeguard in the administration of the ballot review. But their preference was not to interject at all -- clearly they did not feel that the equal protection concern warranted intervention by the Court (but once the Court intervened, it was worth raising).
The two swing votes in the majority clearly held that manual recount involving unequal standards would NOT be unconstitutional if a state supreme court said so except under the limited facts of the presidential election -- in fact, they pointed out the slippery slope the exists when you try to apply equal protection principles to the manner of tabulating ballots when there are different types of voting machinery. So the majority's decision to intervene at all itself turns on the holding that the Presidential election somehow completely changed the Supreme Court's authority to interfere with, or exercise review over, a state's handling of a statewide election on equal protection grounds. And a review of both the Constitution and Title 3 show that this distinction does NOT exist.
Article II leaves it entirely to the states how presidential electors are selected. Article IV, Section 4 guarantees to States a "Republican Form of Government". In light of the reservation in Article IV (that the states have autonomy in how they set up their own governments), Article II can hardly be read to invite the Supreme Court to disrupt that state sovereignty, particularly as to a decision that is specifically reserved in Article II to the States. The majority effectively says that because Article II provides that state legislatures direct the manner of appointing electors, the federal judiciary has somehow been expressly appointed as a federal superintendent over the relationship between state courts and state legislatures, which licenses a departure from the deference which, historically, is almost uniformly given by the Supreme Court to state court interpretations of state law.
So the dissent was not a mere disagreement as to remedy. They did not believe that the fact that this was a presidential election gave the Supreme Court license to intervene in a state law issue. Even with whatever equal protection concern they may have had. So they would not have ruled the recount unconstitutional. That is a fundamentally different way of looking at the case from the majority. They joined in no part of the Per Curium opinion.
In light of this, the Jim Baker GOP party line that this is somewhow a more legitimate decision because it was a 7-2 decision on the unconstitutionality of the recount is just flat out wrong, a typically GOP-like recasting of reality to make it seem better than it really is. |
