Two main problems:
1. The FSSC was ruling on Florida state law. The SC majority usually regards state supreme courts as the final arbiter for state law and will not overturn them.
2. In order to get standing, there had to be a federal issue, so they accepted the same lame Equal Protection Clause argument that they themselves had rejected three weeks previously! Now, in most Equal Protection Clause arguments, the majority, particularly Scalia and Kennedy, take a narrow construction, demanding answers to the following questions:
1. Identify the class of people harmed by the alleged violation.
2. Show that the harm is tangible and serious
3. Show that the alleged violation discriminates against the class of people identified in 1)
4. Show that there was discriminatory intent on the part of the government officials who committed the alleged violation.
This is a tough standard, especially proving discriminatory intent. Needless, to say, in Bush v. Gore, the majority never asked any of these questions.
Now, ask yourself how the recount as ordered by the FSSC satisfied any of these four questions? The obvious answer -- it harmed Bush to have a recount at all, since he had won the official count, is not right, since nowhere in Bush v. Gore does the SC say that the recount was illegal; they only questioned the method by which the recount was done.
So, who was harmed by the Florida recount? Was the harm serious? Did the harm discriminate? and did the officials have discriminatory intent?
If you're only talking about method, these questions become very hard to answer, and indeed there was not a shred of evidence introduced to prove that even this so-called "standardless" recount would favor one candidate over the other. That is why I called the Equal Protection Clause arguments bogus. |
