Justice Scalia Was Right!

Equal Protection for ALL Voters

Why shouldn't there be one objective rule for all counties, and if there isn't, why isn't it an equal protection violation?
Supreme Court Justice David Souter in oral arguments, Bushv. Gore, December 9


Having voted unapologetically for Ralph Nader, I did not have a horse in the Florida sweepstakes. I have no respect for Texas's chief executioner or for Al Gore. Neither gives a damn about civil liberties, the poor or the working class, human rights violations abroad—or at home in our ever expanding prisons.

My concern in the Florida balloting was for due process, which, in that context, meant "equal protection of the laws" under the Fourteenth Amendment.

The unabashedly partisan New York Times' front-page headline on December 13 was: "By Single Vote, Justices End Recount, Blocking Gore After 5-Week Struggle." The 5-4 decision ended any further counting, but in that same decision, there was a 7-2 agreement by the justices that this case involved a federal constitutional issue of equal protection of the laws. It was not a simple 5-4 decision.

The four dissenters in the 5-4 dispositive ruling wanted a recount to continue—under new and uniform statewide standards until December 18. But, said the other five justices, to establish those standards and implement them, do the count, and allow for judicial review of the inevitable appeals, could not be done in six days.

Furthermore, to do more hand counts, even under objective standards, would further degrade the already handled, rehandled, and diluted ballots—even if the deadline were extended for weeks. Indeed, if months from now a total recount of Florida's votes were made, it would be impossible to get a credible count from these debased ballots.

The core of this fierce debate can be found in an exchange between justices Antonin Scalia and John Paul Stevens when, on December 9, the Supreme Court vacated the Florida Supreme Court's decision to recount the disputed ballots in selective counties.

Stevens said, in consonance with the Gore legal team, that "every legal vote should be counted." But Scalia noted that since Election Day, November 7, the controversy had been over which votes were indeed legal. Therefore, Scalia responded: "Count first and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance that democracy requires."

I would have, in addition, reminded Justice Stevens of what the Queen of Hearts said as a trial began in Alice in Wonderland: "Sentence first—verdict afterwards!"

If you were watching the counting on television, you could easily see that the standards for including and excluding votes varied not only from county to county, but, in some of the counting rooms, from table to table. Some counters, for instance, required that all dimpled ballots be counted, but other counters decided to exclude them.

In the December 10 Daily News, Greg Smith reported on the chaos before the U.S. Supreme Court stayed the counting: "In Tampa's Hillsborough County, officials voted to count chads dislodged in 'at least two corners' and maybe one corner. . . . On the other hand, Escambia County officials mentioned chads not at all, stating only that they would rely on the vaguely worded guidance of the Florida Supreme Court to count only ballots where the 'clear intent of the voter' is evident."

Obviously, voters in those counties were not being treated equally under the federalConstitution's Equal Protection Clause.

That was Scalia's forcefully logical point; and on that issue, six other justices have agreed with him. I only met Scalia once, at the taping of one of Fred Friendly's television sessions on constitutional law. Both of us were on the panel. Scalia was rather surly. "I read you sometimes," he said to me. "Don't always agree with you." As he knew, we disagreed with each other most of the time. But he was right on this one.

In stingingly disagreeing with Scalia on December 9 when the counting was stayed, Stevens had said, "On questions of state law, we have constantly respected the opinions of the highest courts of the States. . . . Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."

Three days later, in one of the most bitter dissents in recent Supreme Court history, Stevens declared that in the 5-4 decision effectively making Bush the next president, the "perfectly clear" loser "is the nation's confidence in the judge as an impartial guardian of the rule of the law."

But the very same Justice Stevens wrote differently for a majority of the Court in Andersonv. Celebrezze(1983)—one of a number of important cases in which the Supreme Court directly and vigorously involved itself in election decisions by state courts. In that decision, Stevens made the unarguable point that presidential elections are federalelections, thereby involving the federal Constitution.

"The president and the vice president," Stevens wrote, "are the only elected officials who represent all the voters in the nation. The state has a less important interest in regulating presidential elections than statewide or local elections because the outcomes of the former will be largely determined by the voters beyond the state's boundaries." (Emphasis added.)

So, despite those law professors and even lower court federal judges—as well as such commentators as Tony Lewis of the New York Times—who kept instructing us that there was no reason for the federal Supreme Court to get involved in what the Florida Supreme Court had done, it could not be clearer that Florida voters were denied equal protection of the laws—as guaranteed by the U.S. Constitution.

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