SCALIA: BUSH'S ELECTION UNCONSTITUTIONAL.

SCALIA: BUSH'S ELECTION UNCONSTITUTIONAL. Antonin Scalia has done us the favor of explaining the equal protection theory behind the Supreme Court's decision in Bush v. Gore. (Which is handy, since the per curiam opinion for all intents and purposes failed to articulate anything that could be called a theory at all.) Says Justice Scalia:

And this week Scalia told an audience at Iona College in New York that Florida's handling of the Florida recount in Bush v. Gore was a violation of the Constitution's guarantee of equal protection under the law. "Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," he said. Scalia let the crowd know that the case is one only for the history books: "It's water over the deck -- get over it," he said. Given that Bush v. Gore explicitly claims to hold no precedential value in future cases, perhaps he's right; still, such voting cases will doubtless come before the court again in the future.

Ah, so that's the argument. It has some interesting implications:

  • The vote count that elected Bush, Scalia now concedes, was egregiously unconstitutional if the court's decision is taken seriously. After all, under the count the Supreme Court upheld, there were no uniform statewide standards (indeed, the Court specifically told the Florida courts not to use one), and a dimpled chad might be counted in one county but not another. Even worse, one voter's vote might arbitrarily not count because of different voting technology. Bush, according to Scalia, is an illegitimate president.
  • Because of this, Scalia is admitting that the remedy provided by the court was wholly inconsistent with the rule of law. According to Scalia's theory, the remedy upheld a vote count that was just as unconstitutional as the count the Court rejected; evidently, this cannot be a proper remedy.
  • He is also conceding that the attempt to limit the decision to "present circumstances" -- in addition to contradicting everything Scalia has ever written about good jurisprudence -- is ridiculous. If having arbitrary differences in vote-counting procedures within states violates the equal protection of the laws, then such violations are banal. All elections conducted without rigorous, uniform statewide standards are unconstitutional; there's nothing remotely unique about Florida 2000 if this is the Court's theory.

Anyway, it's nice that Scalia has admitted all this. Whether we should "get over this" is left to the reader.

--Scott Lemieux

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