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FEATURE STORY
| February 5, 2001
None Dare Call It Treason
by Vincent Bugliosi
ustice Stevens observed in his dissent that 3 USC § 5 "merely provides rules...for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a state from counting...legal votes until a bonafide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines" of December 12 and 18. Thus, Stevens went on to say, even if an equal protection violation is assumed for the sake of argument, "nothing prevents the majority...from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted."
But even if December 12 were some kind of actual deadline, nothing was sillier during this whole election debate than the talking heads on television, many of whom were lawyers who should have known better, treating the date as if it were sacrosanct and set in stone (exactly what the Supreme Court majority, on the run and trying to defend their indefensible position, said). In the real world, mandatory dates always have an elliptical clause attached to them, "unless there is just cause for extending the date." I cannot be accused of hyperbole when I say that perhaps no less than thousands of times a day in courthouses throughout the country, mandatory ("shall") dates to do this or that (file a brief, a motion, commence a trial, etc.) are waived by the court on the representation of one party alone that he needs more time. If extending the December 12 (or the December 18 date, for that matter)5 deadline for a few days for the counting of votes to determine who the rightful winner of a presidential election is does not constitute a sufficient cause for a short extension of time, then what in the world does? No one has said it better than columnist Thomas Friedman: "The five conservative Justices essentially ruled that the sanctity of dates, even meaningless ones, mattered more than the sanctity of votes, even meaningful ones. The Rehnquist Court now has its legacy: In calendars we trust." In other words, to Scalia and his friends, speed was more important than justice. More important than accuracy. Being the strong-armed enforcer of deadlines, even inconsequential ones, was more important to these five Justices than being the nation's protector and guardian of the right to vote.
What could be more infuriating than Chief Justice Rehnquist, who knew he was setting up a straw man as counterfeit as the decision he supported, writing that the recount "could not possibly be completed" in the two hours remaining on December 12? The Supreme Court improperly stops the recounting of the votes from Saturday afternoon to Tuesday, December 12, at 10 pm, then has the barefaced audacity to say that Gore ran out of time? This type of maddening sophistry is enough, as the expression goes, to piss off a saint. How dare these five pompous asses do what they did?
It should be noted that the recount that commenced on Saturday morning, December 9, was scheduled to conclude by 2 pm that Sunday, and the vote counters were making excellent progress. For example, as reported in the December 10 New York Times, for the 9,000 Miami-Dade County ballots being counted, eight county court judges counting 1,000 ballots an hour, had, by midday Saturday, "gone through more than a third of the ballots [when Scalia stepped in], and expected to finish by nightfall." So the Court's extending the deadline to December 18 would have provided ample time for the Florida Supreme Court to promulgate a uniform standard, finish the vote-counting in a day or so, and even allow for judicial review. As Justice Ruth Bader Ginsburg observed concerning this last point, "Notably, the Florida Supreme Court has produced two substantial decisions within twenty-nine hours of oral argument." Justice Breyer wrote that the alleged equal protection "deficiency...could easily be remedied." But that's assuming the felonious five wanted a remedy. They did not. All of the above are further indicia of their guilty state of mind.
5. If there are two sacred canons of the right-wing in America and ultraconservative Justices like Scalia, Thomas and Rehnquist, it's their ardent federalism, i.e., promotion of states' rights (Rehnquist, in fact, wrote in his concurring opinion about wanting, wherever possible, to "defer to the decisions of state courts on issues of state law"), and their antipathy for Warren Court activist judges. So if it weren't for their decision to find a way, any way imaginable, to appoint Bush President, their automatic predilection would have been to stay the hell out of Florida's business. The fact that they completely departed from what they would almost reflexively do in ninety-nine out of a hundred other cases is again persuasive circumstantial evidence of their criminal state of mind.
6. Perhaps nothing Scalia et al. did revealed their consciousness of guilt more than the total lack of legal stature they reposed in their decision. Appellate court decisions, particularly those of the highest court in the land, all enunciate and stand for legal principles. Not just litigants but the courts themselves cite prior holdings as support for a legal proposition they are espousing. But the Court knew that its ruling (that differing standards for counting votes violate the equal protection clause) could not possibly be a constitutional principle cited in the future by themselves, other courts or litigants. Since different methods of counting votes exist throughout the fifty states (e.g., Texas counts dimpled chads, California does not), forty-four out of the fifty states do not have uniform voting methods, and voting equipment and mechanisms in all states necessarily vary in design, upkeep and performance, to apply the equal protection ruling of Bush v. Gore would necessarily invalidate virtually all elections throughout the country.
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