In light of Scalia once again dismissing those who consider Bush v. Gore less than a noble application of constitutional principle, this passage from his concurrence in Crawford can only be read as black comedy:
That sort of detailed judicial supervision of the election process would flout the Constitution's express commitment of the task to the States. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.
Yes, how outrageous and inconsistent with federalism it would be for the Supreme Court to use the equal protection clause to engage in the ad hoc supervision of state election procedures, without anything resembling an "objective, unifrom standard!" Note: this principle void if it can put a Republican president in the White House.
--Scott Lemieux
