The Man Who Stuck Us With Bush

If historians are honest, history will record that it was Antonin Scalia who finished off the American republic by sticking us with George W. Bush, a ne'er do well who aspired to dictatorship and with Scalia's help, got one! Scalia now sweats his legacy in an unseemly manner in public. Historians will say of his bone headed efforts to bully other justices into complicity was not not based in anyway on the Constitution, law or precedent. Scalia is what happens when justices give up law for partisan politics. Scalia's scholarly retort: 'get over it'.

Lately, Scalia has blamed Gore for Bush v Gore, ignoring the fact that Gore had already won his case in the Florida Court. A recount of all the votes was, in fact, underway but stopped when Bush made of a local election a federal case. The case is styled Bush v Gore. That means Bush brought the case.

The best damning criticism of Bush v Gore is found in Bush v Gore --the opinions of the dissenting judges. Clearly --they state even better than other legal scholars the UNCONSTITUTIONALITY of the Supreme Court overturning a decision of a State court with regard to the state court's own rulings, a state's own elections!!! Scalia is trying to rewrite history. Not surprising for an idiot, a crook, a Republican.

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, §1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion.

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It hardly needs stating that Congress, pursuant to 3 U. S. C. §5, did not impose any affirmative duties upon the States that their governmental branches could "violate." Rather, §5 provides a safe harbor for States to select electors in contested elections "by judicial or other methods" established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. Neither §5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law.

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One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

--Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting, Bush v Gore

The Florida State Court had already ruled that the recount could continue. The case had been settled where cases involving a state's right to conduct its own elections should have been settled and that is with a decision of Florida's high court.

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. ___ (per curiam), or this case, and should not have stopped Florida's attempt to recount all undervote ballots

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There are three issues: whether the State Supreme Court's interpretation of the statute providing for a contest of the state election results somehow violates 3 U. S. C. §5; whether that court's construction of the state statutory provisions governing contests impermissibly changes a state law from what the State's legislature has provided, in violation of Article II, §1, cl. 2, of the national Constitution; and whether the manner of interpreting markings on disputed ballots failing to cause machines to register votes for President (the undervote ballots) violates the equal protection or due process guaranteed by the Fourteenth Amendment. None of these issues is difficult to describe or to resolve.

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In sum, the interpretations by the Florida court raise no substantial question under Article II. That court engaged in permissible construction in determining that Gore had instituted a contest authorized by the state statute, and it proceeded to direct the trial judge to deal with that contest in the exercise of the discretionary powers generously conferred by Fla. Stat. §102.168(8) (2000), to "fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." As Justice Ginsburg has persuasively explained in her own dissenting opinion, our customary respect for state interpretations of state law counsels against rejection of the Florida court's determinations in this case.

But as Justice Breyer has pointed out, no showing has been made of legal overvotes uncounted, and counsel for Gore made an uncontradicted representation to the Court that the statewide total of undervotes is about 60,000. Id., at 62. To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now.

--Justice Souter, with whom Justice Breyer joins and with whom Justice Stevens and Justice Ginsburg join with regard to all but Part C, dissenting, Bush v Gore

Justice Ginsburg:

I might join The Chief Justice were it my commission to interpret Florida law. But disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that the members of Florida's high court have done less than "their mortal best to discharge their oath of office," Sumner v. Mata, 449 U. S. 539, 549 (1981), and no cause to upset their reasoned interpretation of Florida law.

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As Justice Breyer convincingly explains, see post, at 5-9 (dissenting opinion), this case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the State's Election Code. The court surely should not be bracketed with state high courts of the Jim Crow South.

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I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount.

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But no one has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent.

--Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting, Bush v Gore

From Justice Breyer:

By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm.

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The Florida Supreme Court, applying this definition, decided, on the basis of the record, that respondents had shown that the ballots undercounted by the voting machines contained enough "legal votes" to place "the results" of the election "in doubt." Since only a few hundred votes separated the candidates, and since the "undercounted" ballots numbered tens of thousands, it is difficult to see how anyone could find this conclusion unreasonable-however strict the standard used to measure the voter's "clear intent." Nor did this conclusion "strip" canvassing boards of their discretion. The boards retain their traditional discretionary authority during the protest period. And during the contest period, as the court stated, "the Canvassing Board's actions [during the protest period] may constitute evidence that a ballot does or does not qualify as a legal vote." Id., at *13. Whether a local county canvassing board's discretionary judgment during the protest period not to conduct a manual recount will be set aside during a contest period depends upon whether a candidate provides additional evidence that the rejected votes contain enough "legal votes" to place the outcome of the race in doubt. To limit the local canvassing board's discretion in this way is not to eliminate that discretion. At the least, one could reasonably so believe. ...

I repeat, where is the "impermissible" distortion?

--Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I-A-1, and with whom Justice Souter joins as to Part I, dissenting, Bush v Gore

Certainly, the 'majority' decision did not even address the issues that compelled the case. Justice Breyer pointed out: there was absolutely no justification for the majority's remedy, which simply reversed a decision of the lower court and had the effect of halting the recount entirely. Some remedy!

By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect.

I repeat, where is the "impermissible" distortion?

--Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I-A-1, and with whom Justice Souter joins as to Part I, dissenting, Bush v Gore

It is on this point that I have a nit to pick with Breyer who states that the 'remedy' was 'out of proportion' to the 'asserted harm'. It was, in fact, no remedy at all, not even addressing 14th issues --real, imagined, or strictly political. Stopping the recount entirely most certainly did not bring Florida into compliance with the 14th amendment even if it had not been prior. If anyone should think it does, I defy them to make the case. If any voter had been disenfranchised before Bush v Gore, they remain disenfranchised afterward. Additionally, a 'remedy' must be applicable universally, correcting wrongs wherever they occur throughout the nation. Bush v Gore, rather, applied in one case and in one case alone. It is, therefore, not a law but a decree.

Moreover, it was never proven by Bush v Gore that any voter had been disenfranchised except by practices associated with the Bush camp. Certainly, none of those instances or issues were addressed by Bush in his petition or by the decision of the high court.

First, normally in equal protection cases, the aggrieved party — in this case, the Florida voter who claims his or her vote was not counted equally — brings the action. That was not the case in Bush v. Gore, which raises the question whether Bush had standing (that is, the legal right) to sue.

Second, the Supreme Court has consistently held that the equal protection clause can only be successfully invoked if the discrimination was intentional, and in this case, an excellent case can be made that it was not. Any differences from county to county as to how intent was assessed probably were not intended to discriminate among various voters, though they may have had that effect.

Third, if the five justices were truly concerned about the voters' equal protection rights, then how could they adopt a solution that meant that those who submitted "undervotes" would not have their votes counted at all? Certainly eliminating certain voters' ballots, and not those of others, is the greatest voting inequality of all.

--Findlaw, A Review Of the Betrayal Of America

At last, it was not proven in Bush v Gore that Florida had not been in compliance. The majority opinion seems almost to concede that they had utterly failed to make 14th Amendment case law. It was, in fact, a decision that made no law! A single word sums up Bush v Gore: disingenuous!

Scalia's attempt to rewrite history is doomed to fail. It was Bush who brought the case ---not Gore. Had Gore brought the case it would have been styled "Gore v Bush". It was not. One is tempted to call Scalia a liar. But I am content to let the facts and history speak for themselves. And he knows what he is.

Secondly, Gore had no interest in pursuing the case as the Florida court had already mandated the only 'remedy' compelled by both law and common sense: count the votes! That process --underway --was halted by the high court which took the case upon a transparent pretext.

It was the partisan majority that set aside it's Constitutional responsibility to rule upon the law and only the law and ruled, instead, along partisan lines. That their decision to do so was foolhardy and ill-considered has been proven by the record of utter failure and catastrophe wrought upon this nation in the wake of this ill-considered, foolhardy, disingenuous 'decision'.

A high price continues to be paid because SCOTUS stuck its nose into an issue that had already been settled according to the law. The high court set the nation upon a path in which the rule of law no longer exists. A pox on the five majority justices who gave us the dictatorship of George W. Bush. They have, thus, ensured that their names and the decision to which their names are attached will forever live in infamy.

Scalia: "Get over it!"

Additional resources

• A GREAT CASE THAT MADE NO LAW:
  A Review of Alan Dershowitz's Book on Bush v. Gore
• New York Times: Posner v. Dershowitz
• A Review Of the Betrayal Of America
• The Legacy of Bush v Gore
• Antonin Scalia, self-made martyr
• Bush vs the Constitution

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