Scalia on Bush v Gore: ‘Get Over It’
Antonin Scalia says "The only question in Bush v. Gore was whether the presidency would be decided by the Florida Supreme Court or the United States Supreme Court."
Lest the comment thread on Antonin Scalia’s discussion about the relationship between Supreme Court Justices get highjacked, I’ve decided to highlight his remarks on the most controversial case of the modern era separately.
Scalia also said in the interview that the case that brings about the “most waves of disagreement” is still the decision that decided the 2000 presidential election between George W. Bush and Al Gore. But the justice said his normal answer to people who ask about Bush v. Gore is “get over it.”
Scalia said it was Gore who decided to bring the courts into the battle. “The only question in Bush v. Gore was whether the presidency would be decided by the Florida Supreme Court or the United States Supreme Court,” Scalia said. “It was the only question and it’s not a hard one.”
Scalia said he had no regrets about the court’s decision.
“No regrets at all,” the justice said. “Especially because it’s clear that the thing would have ended up the same way anyway. The press did extensive research into what would have happened if (what) Al Gore wanted done had been done, county by county, and he would have lost anyway.”
Scalia is certainly right about the sequencing. Despite the oft-expressed lament of Democrats that “the Supreme Court handed the 2000 election to Bush,” the fact of the matter is that Bush won the initial counting of ballots in Florida, won the mandatory mini-recount, and was certified as the winner by Florida’s (Republican) secretary of state. It was, therefore, Al Gore who had to sue if he were to overturn that result and become president.
But the SCOTUS case was Bush v Gore, not Gore v Bush. That means Bush was the plaintiff. Why? He was seeking to overturn a decision made by the Florida Supreme Court to conduct additional recounts in violation of Florida statutory law.
While I have some misgivings about the reasoning in the opinion, especially the notion that it was a one-off with no precedent, I thought at the time and still think that they got the outcome right. First, I agree with Scalia that, given the stakes, it should have been the US Supreme Court, not the Florida Supreme Court, that made the call. Second, I thought and think that the process mandated by Florida’s Supreme Court was unfair on technical grounds as well as an illegal change of the rules after the game was played. Third, I thought and think that more people in Florida successfully voted for Bush than Gore. (Incidentally, I also think it likely that more people in Florida intended to vote for Gore than for Bush. While I think that has some moral weight, I don’t think it has any legal weight.)
As to the media recounts, Scalia is also right, up to a point.
An April 3, 2001 report from PBS NewsHour is headlined “MEDIA RECOUNT: BUSH WON THE 2000 ELECTION.”
In the first full study of Florida’s ballots since the election ended, The Miami Herald and USA Today reported George W. Bush would have widened his 537-vote victory to a 1,665-vote margin if the recount ordered by the Florida Supreme Court would have been allowed to continue, using standards that would have allowed even faintly dimpled “undervotes” — ballots the voter has noticeably indented but had not punched all the way through — to be counted.
The study, conducted by the accounting firm of BDO Seidman, counted over 60,000 votes in Florida’s 67 counties, tabulating separate vote totals in several standards categories.
Note, though, that Scalia chose his words with lawyerly precision. Bush would have won using the method Gore asked for and that the Florida Supreme Court mandated. But . . . .
While the USA Today report focused on what would have happened had the Florida Supreme Court-ordered recount not been halted by the U.S. Supreme Court, the Herald pointed to one scenario under which Gore could have scored a narrow victory — a fresh recount in all counties using the most generous standards.
In their reports, the newspapers assumed counts already completed when the court-ordered recount was stopped would have been included in any official count. Thus, they allowed numbers from seven counties — Palm Beach, Volusia, Broward, Hamilton, Manatee, Escambia and Madison — to stand, but applied the most inclusive standards to votes in the rest of the state. If those numbers did not stand, the Herald reported, a more generous hypothetical revisited recount would have scored the White House for Gore — but with only a 393-vote margin.
Under most other scenarios, the papers reported, Bush would have retained his lead.
Note that the Bush team had argued that the only fair way to do a recount would be to conduct it state-wide using the same rules. Under that scenario, Gore would have won—although only if counting dimpled ballots. Using the legislatively mandated means of counting—successfully disengaging the chad entirely for one and only one candidate—Bush would have won.
Given that this was the standard Florida law required and Florida voters were instructed would be applied ahead of the balloting, it seems obvious to me that it’s the standard that should have applied. To me, changing the rules after the game is played—where the judges and election officials know the outcome and how many votes they need to flip—is simply unconscionable.
Additionally, the potential for mischief and inevitable sense of illegitimacy that comes when initial results are overturned makes me leery of any recount process. Absent demonstration of fraud or systemic error, there’s no reason to be more confident in a second count than a first one. Indeed, there’s less given that, on the second go-round, those doing the counting know how many votes they need to steal to give their guy the election.
The original case in the Florida Supreme Court was called Gore v. Harris, as in Katherine Harris the former Florida Secretary of State. There were also companion cases in Federal Courts that the Bush campaign was involved in as a party. How it became “Bush v. Gore” on the Supreme Court’s docket was never clear to me since it was the Gore v. Harris decision to order a statewide recount that was being appealed.
I’ve long been over the mechanics. If there is one thing I dislike it is the aftermath. Isn’t it amazing that we went from the slimmest of victories to a decade of increased polarization?
In a rational world the slimmest of victories would lead to acknowledgement of equivalence and increased negotiation.
I would suggest that the polarization became a problem during the whole Iraq War debate, not so much as a reaction to Bush v. Gore
I think the polarization was raging from the Clinton years and the close election did nothing to make people stop and think.
I have a problem with any SCOTUS decision “limited to current circumstances”.
But here’s a much better written synopsis that I have time for.
More interesting to me is Scalia’s comment on Citizen’s United:
“…Asked whether the controversial Citizens United ruling, which affirmed unlimited spending to influence elections, has led to an abuse of the political process, Scalia rejected the view.
“No, I think Thomas Jefferson would have said the more speech the better,” the justice said. “That’s what the First Amendment is all about. So long as the people know where the speech is coming from. … You can’t separate speech from the money that facilitates the speech. It’s utterly impossible. Could you tell newspaper publishers you could only spend so much money in the publication of the newspapers?”
“I think, as I think the framers thought, that the more speech the better. Now, you are entitled to know where the speech is coming from. You know, information as to who contributed what. That’s something else…”
Republicans in Congress in the meantime filibuster the attempt to make clear where that spech is coming from. It’s a beautiful conspiracy.
So, Gore v. Bush is a settled question and we should all just “get over it”?
Well, Mr Scalia, Roe v. Wade is also a settled question. Why don’t you just “get over it”?
@john personna: Iraq poisoned the well to a certain extent, but the communications environment is likely the main culprit. 24/7 talk radio and TV. Reddit. Blogs. Twitter. There’s just no break now from the full-on war of the campaign season.
@legion: While I fully understand why Democrats wouldn’t want to “get over it,” the fact of the matter is that the issue of who won the 2000 election has long since been moot. Whether the Constitution protects abortion, however, remains a live political question.
Roe v Wade is only a settled question for those who are already aborted. It is a new question every time a new prenatal baby is aborted. There is no alternative universe where Gore was out President just as there is no alternative universe where those who were aborted can live.
Another interesting essay. Wish you were writing more frequently.
First, I agree with Scalia that, given the stakes, it should have been the US Supreme Court, not the Florida Supreme Court, that made the call.
I missed that day in law school, apparently. “Stakes” can override federalism?
How Florida counts its votes sounds like a quintessential question of state law.
@Anderson: If it were an election for governor, sure. For president of the United States? Not so much. And there was longstanding federal law at stake as well, going back more than a century, precluding states from changing their election rules after the election. Florida’s Supreme Court did that by countermanding the statutes that were in place on Election Day.
@Drew: Thanks—and me, too. Being solely responsible for child care duties, I’ve lost most of my morning, early evening, and weekend writing time. Hopefully, some of that will filter back as the girls get a bit older.
Like purging thousands of non-felons from the rolls?
I would suggest that the type of polarization that we’re now accustomed to came following the election of Bill Clinton in 1992 – if Ross Perot isn’t in that race, GHW Bush is re-elected to a second term. Republicans did not accept Clinton as legitimate from the beginning, and 6 years of investigation later Clinton was impeached. Also, Gingrich engineered a shutdown of the government.
Iraq caused polarization after the fact – most Democratic senators voted to go to war (only later did they take up full blown opposition).
Now, with Obama, Republicans do not consider him to be legitimate either, that’s in large part what the Birther movement is all about. Actually, I am surprised that the House has not taken up impeachment of Obama. I expect that to come up in 2013.
I doubt I will ever accept the Supreme Courts decision to intervene and award the presidency to the loser of the popular vote. Florida and the national Repubs pulled every sleazy trick in the book, from disenfranchising hundreds of thousands of Democratic voters just before the election to setting up highly visible speed traps on the streets leading to polling places in Democratic areas. The whole “hanging chad” interpretation by Kathleen Harris (yes, the woman who headed Bush’s reelection campaign was the one responsible for counting the votes) was ridiculous on its face. For those who don’t know, once Harris realized that the ballots in a key Democratic leaning area were particularly susceptible to hanging chad she issued a rule that said ballots with that defect don’t count. (Unfamiliar with hanging chads? Essentially, if the tool given to you by the state to punch a whole in your ballot didn’t succeed in completely separating the punch from the hole then your vote didn’t count. And by the way – you couldn’t see the back of the ballot to wouldn’t know whether it was punched out or not.)
Then, when the Dems were desperately trying to overcome this obvious charade by appealing to the Florida Supreme court, the US Supreme court scraped the barrel for a way to side with the duplicitous Repubs in Florida.
And then we got the torture presidency.
I agree, obviously, since I also named the Clinton years above. Thanks for reminding us of the government shutdown. I’d forgotten that, though I did remember Vince Foster, Whitewater, and such.
As to how this ties with James’ Internet thesis … we have internet users as a percentage of US population here. Things took off in ’93. Say you need 30% to really start shaping culture, that happened in ’98.
So basically yeah, there were concurrent with the ’93 to ’01 Clinton terms.
I have a problem with a Supreme Court Justice saying “get over it” to someone criticizing a court decision. Although, with all of the crap this clown has pulled over the years, it doesn’t surprise me. In a perfect world he would be ruling on speeding tickets. At night.
The broader question should be “what we do in the case of statistical tie?” I thought that was a tie. As I say in my first comment, I wanted mature recognition of that, and negotiation.
Whether it is the vote, or the chads, or the courts, ties are always going to go one way or another, and the main thing is to not let the “victor” think he escaped with a “mandate.”
On what grounds? Governing while black?
Ross Perot wasn’t a spoiler candidate, he took votes evenly from both candidates.
(Ralph Nader on the other hand…)
@Jeremy R: How would a recount address that problem?
@MarkedMan: The winner of the national popular vote is irrelevant; the contest was run based on an entirely different set of rules. Gore might have spent more time on GOTV in California and Bush in Texas, for example, under a popular vote system.
And, sorry, the problem with hanging chads isn’t defective punch tools but sloppy punching. The instructions are clear: punch the hole all the way. Otherwise, how do we distinguish between someone who started to vote for a candidate and then thought the better of it from someone who was just too lazy to vote properly?
@john personna: I agree with you in principle but don’t know how to do it in practice. Something along the lines of the “West Wing” solution–bringing in Gore to some high cabinet post or otherwise having a bipartisan cabinet, possibly? But, at the end of the day, you have one president and he’s got to govern according to his views of what’s best for the country. His margin of victory really doesn’t have anything to do with that.
The House can initiate impeachment proceedings over anything it wants to.
If December 12 was the deadline, JJ, then the SCOTUS had no business staying the manual recount on Dec. 9. Any other issue of the FL court’s supposedly violating state law did not get the votes of 5 justices.
I think your comment, like our society, is a little too President-centric. As you recall, I’ve complained that we have a bit too much “big chief” psychology in us, and have trouble viewing government in full. This leads us to make demands of the President that we should really be making to Congress. We let Congress off the hook and blame the President. Some people absurdly blame the President for not giving Congress bills that will pass. Of course, the “statistical tie” extends to current seating in Congress.
What to do? Campaign finance reform would probably help. As would general pressure from citizens for problem-solving. Those are not likely now. In the end the only hope might be that “things that can’t go on forever, won’t”
The danger might be in how bad things have to get first.
@James Joyner: “the fact of the matter is that the issue of who won the 2000 election has long since been moot. Whether the Constitution protects abortion, however, remains a live political question.”
And whether the Supreme Court can be trusted to rule in an fair and unbiased fashion ISN’T? Do you honestly think Scalia would have ruled the same way if that decision had resulted in Al Gore becoming President?
Understand. All the best.
Electing the President and Commander in Chief isn’t a game. Every effort should be made to determine the true intent of the voters.
On the grounds of upsetting Grover Norquist:
@James Joyner: Sorry James, but I can’t agree on the chads, for two reasons. One, I actually used one of the voting ‘machines’ (and I use that term loosely) when a right wing true believer purchased one at auction and was using it to ‘prove’ to everyone who walked into his small business that the Repub position on chads was legitimate. It had the exact opposite effect on me. The ballot is held by a fairly thick sheet of metal with hundreds of holes in it. It is not easy to see if it is perfectly aligned. The tool was just a plastic (metal?) rod that you pushed through one of the holes, which were about half the diameter of a typical hole punch. It wasn’t easy to see what you had done and whether the chad might be hanging off the back.
But the second reason was because the whole thing was nonsense anyway. Most states have an “intent of the voter” rule, meaning that if the intent of the voter is obvious then the vote counts. Any reasonable person would understand that if someone had a ballot with a hole punched for “Obama” but the punch was hanging by a thread, well, that person had intended to vote for Obama. But Florida does not have such a rule, giving Katherine Harris (vote counter in chief and head of the elect Bush campaign in FL) the opening to interpret the rule in a patently ridiculous way. She did not have to rule that way – she invented that rule out of whole cloth. To me it is patently obvious she deliberately created it so as to disenfranchise thousands of voters in a particularly democratic district.
I’m curious about your response to another questioner above. Do you honestly believe that if the circumstances were reversed that the Supreme Court would have intervened and ruled in favor of Obama? Because that may be the fundamental differences in our outlook. I absolutely believe that they would have simply reversed all their arguments and jerry-rigged a result that would have favored Bush.
House Republicans do not need a good reason to initiate impeachment of Obama, they just need ** a ** reason. They’ve got the votes and a simple majority is enough.
Just to be clear, I agree that Bush was, legally, the president of the United States. I don’t think he was legitimately the president. In our system, the Supreme Court can decide. They decided, but substituted political desires for legal analysis. Put another way, once they took the case they had the legal authority to decide it by a coin toss, but it would be illegitimate in many peoples view.
@MBunge: @MarkedMan: Yes, I think the Justices would have aligned in precisely the way they did regardless of the outcome it produced.
@MarkedMan: I believe all we can know is what I voter did. Trying to figure out what he intended to do is subject to too much mischief, especially in a recount process.
Given the narrow margin, the number of people who caught flu that day, or whose car wouldn’t start, or just pressed the wrong button, yes, a coin toss would have been as legitimate.
In a statistical tie there is no “real” winner. You need a margin for that. You probably need 5% for a clear winner, and a 20% margin for a mandate.
The whole nation would have been so much better off if they’d understood Bush as the winner of the coin toss, and Gore the loser.
I dunno. I really wonder about Justice O’Conner as she supposedly desperately wanted to retire. And then there was Ginni Thomas working on the Bush transition at Heritage…
JJ: You are almost there- here is Wiki on the matter:
Review of all ballots statewide (never undertaken)
• Standard as set by each county canvassing board during their survey Gore by 171
• Fully punched chad and limited marks on optical ballots Gore by 115
• Any dimples or optical mark Gore by 107
• One corner of chad detached or optical mark Gore by 60
Review of limited sets of ballots (initiated but not completed)
• Gore request for recounts of all ballots in Broward, Miami-Dade, Palm Beach, and Volusia counties Bush by 225
• Florida Supreme Court of all undervotes statewide Bush by 430
• Florida Supreme Court as being implemented by the counties, some of whom refused and some counted overvotes as well as undervotes Bush by 493
Gore wins when all ballots are counted regardless of the standard; Bush wins when all ballots are not counted, regardless of the standard. Of the seven approaches, Gore prevails in 4, Bush in 3. In reality, this was literally a coin toss- our democarcy is not equipped to handle this type of result.
The real problem with Scullia is that his defense represents a posteriori reasoning which indirectly is an acknowledgement of poor reasoning. As to your preference of the US Supreme Ct deciding the outcome instead of the Fl Supreme Ct (or Harris for that matter); that may be swell but it is not how the constitution is written where an exact procedure is delienated for such outcomes.
@C. Clavin: Thanks for the link to Chait’s article. I had forgotten that the magazine recount hit the news shortly after 9/11, when everybody was rallying around the flag and not wanting to make waves about the legitimacy of our commander in chief.
Joyner you really need to read the Chait article. I doubt it will change your mind, but you might understand why some of us are still pissed. Setting aside the purging of voter rolls and the counting of absentee ballots apparently mailed after the fact, more people in FL attempted to vote for Gore than for Bush. You might still have an argument that the Supremes didn’t steal the election, but some combination of the Supremes, Jeb Bush, Katherine Harris, and petty theft in a number of precincts did.
And elections do, as they say, have consequences. With Al Gore would we have gotten Iraq and the deficit?
@Jeremy R: I specifically note in the companion post that “I think Scalia goes too far in saying that the Justices don’t consider partisan politics at all—they certainly seem to do so in timing their retirement, if nothing else.” But note that 7 Justices agreed that the Florida Supreme Court order had violated the Equal Protection Clause.
James Joyner says
I have two problems with that: first, IIRC, around 35 states have laws stating that weight must be given to the intent of the voter, so it is not at all obvious that this causes inordinate mischief. Second, you are discounting the mischief that throwing out the intent of the voter caused in Florida.
Remember, the process you are defending as legitimate had Harris ruling that absentee ballots from servicemen (a Repub leaning group) arriving late counted even though there was a clear rule posted on the ballot itself and apparent to all. However, when she saw an opportunity to disenfranchise Dem voters she created a rule that even if a voter punched all the way through the paper, but the ballot they happened to get had perforations that were inadequate and one perf didn’t break, the ballot did not count. James, I’m sorry but I simply don’t see how you defend both those things as legitimate. And reversing either one would have given the election to Gore.
I would rate Scalia the 3rd-greatest Justice of my own lifetime, behind only Harlan, Jr. and Rehnquist. I would put Thomas at No. 4. With a few more years on the bench, however, Alito might jump all the way to No. 1.
In any event, regarding Bush v. Gore, the chances of the loopy left “getting over it” nearly are the same as Zoloft, Paxil, Prozac and Wellbutrin not being major sellers in San Francisco, New York and Boston, i.e., it ain’t gonna’ happen.
One of my favorite George H.W. Bush quotes is from the past couple of weeks, and I paraphrase: “Who the F— is Grover Norquist?”
@Raoul: “a posteriori”? New phrase to me. In Scalia’s case, does it mean what it sounds like it means?
@MarkedMan: You simply can’t penalize servicemen for ballots that arrived late. The problem, if I recall correctly, was that the Armed Forces post offices didn’t bother to postmark the ballots. Bending over backwards to ensure that those particular votes counted was the decent thing to do–and Al Gore didn’t want to do that.
@James Joyner: but you can penalize veterans (or anyone else) who did everything correctly but didn’t have their vote count because the perforations in the ballot were flawed? C’mon James….
@James Joyner: James, I absolutely agree with you. Admitting the servicemen’s ballot was the decent and right thing to do (my recollection was that Al Gore conceded it for ones that were known to be in the mail before the election. Are you sure he was against them en mass? It would affect my opinion of him.) I think where we disagree is on the hanging chads. In my mind it would absolutely been the right thing to do to accept votes where the hole punching mechanism didn’t work perfectly but it was obvious that someone pushed the rod into the hole (…alright, alright, quiet down you lot. We’re not 13 years old here…) The Republicans did not do the right thing, in fact, they went out of their way to do the wrong thing.
And so at this point I think there is just a fundamental difference in perspective between you and I on this. Believe it or not, that’s just fine with me. I have the tendency to view the ‘other side’ as comprised of shams and liars like Fox news and Newt Gingrich. When someone whose opinion I respect, such as yourself, disagrees, it helps me to remember that what seems obvious to me is not necessarily perceived as universally true. Although with two teenage kids you wouldn’t think I’d need much of a reminder.
I would rank Justices John Paul Stevens, William Brennan, and Lewis Powell as highest in my lifetime. Perhaps I would add Harry Blackmun to my list.
@James Joyner: @MarkedMan: According to the following thorough work by the NYT several months after the election, the story was that military mail was postmarked when it arrived in the US. And that was not true. http://www.nytimes.com/2001/07/15/us/examining-the-vote-how-bush-took-florida-mining-the-overseas-absentee-vote.html?pagewanted=all&src=pm
The whole absentee ballot / conceding the military votes was the only decent thing for Gore to do thing is not nearly that simple. This is another few hundred votes net credited to Bush under very suspicious circumstances.
@gVOR08: @gVOR08: James thanks for the link. It just reinforces my opinion that Gore tried to do the right thing, that Harris did every sleazy thing she could think of to win, and that the Supremes said Gore had no right to an independent review – that whatever Harris decided was the supreme law of the land. I remain extremely skeptical that if the situation had been reversed they would have left the definition of “the right thing” in the hands of Gore’s state ca,paign chairman.
Let us go back to a point long before any of these comments or of this debate about the decision of the 2000 election. Any time the secretary of state for any state, the person in charge of counting and verifying the votes is also the state chair or even a high official in a campaign, there is a potential conflict of interest and there will always be doubts about the election results. This was the case in Florida in 2000 and the case in Ohio in 2004. Is it a coincidence that these are the states that decided each of these 2 elections late in the game, and each just happened to have a representative of the winning campaign embedded in the decision making? If I were involved in a campaign and also tasked with certifying the votes, I would recuse myself and hand the task to an assistant to avoid any conflict of interest. We can debate methods of counting, voter purges, rule changes and more, but I see a pattern of foul play here. In Ohio in 2004 there were not enough voting machines in D districts and miraculous voter turnouts of over 100% in some R districts. So the pattern is, get a high ranking campaign official into the position of responsibility for certifying the vote, and then do everything possible to sway that vote, knowing your efforts will be officially supported, rather than halted. This is a very complex multifaceted approach, but appears to have worked twice.
Interesting discussion that moved greatly from Scalia’s comments to the election and election law in Florida. What is omitted here is the fact that there were five other states – all with similarly close elections – where Gore won by a very small margin. The reason Florida is the subject of all this discussion is that Gore carried the results to local and state courts. Bush didn’t because he won in Florida and therefore, he won nationwide.
An alternative strategy rather than fighting to “keep” Floridas electoral votes would have been to raise similar issues in other states (Iowa, New Mexico, etc. if my memory is correct and I readily admit not going back to look at the four close states from over a decade ago). In ANY state, with any close election, there but by the grace of God go I. Give me an election decided by a few votes and it is always subject to question – all kinds of problems and once opened where both sides know what the numbers are – its Katy bar the Door.
Dems – those that are all about Dem and no matter what – will never accept the result of the 2000 election. But if they had been around in 1960 probably would never have had a problem with that. Or, the multiple recounts in the MN Senate election or the two different times the WA Governor’s election has been decided with questionable matters. Over the years, and will be again this year – close elections bring out all the things wrong with our election machinery (and I don’t mean the hardware.)
Partisan workers, partisan officials in control of the process, old folks trying to enforce antiquated and highly technical rules, folks trying to scam the system, on, and on, and on. When only a few hundred votes out of millions make a difference, or dozens out of hundreds of thousands, and the stakes are high enough that people care – it shows that it is time to fix the process – not keep on arguing over who won/lost last time. The technology is there -(and by the way, the national Help America Vote Act certainly didn’t do that, it just jumped the gun on technology that wasn’t quite ready) where it can be improved. But in a close election somebody has to decide. And my reading of the constitution is that it does fall to SCOUTS. Understand state laws on elections and who rules, but also realize that in elections for Congress and President the feds have some say so that overrules state law. And that existed long before 2000.