I know it is enormously unwise to re-open this can of worms, but here it goes.

The 2000 Presidential Election is back in the news with the announcement that HBO is planning the release of a film dramatizing the 2000 recount , and Vice President Gore‘s recent interview on 60 Minutes in which he reflected:

I strongly disagreed with the decision, but to ascribe low and petty partisan motivations to the five justices who were in the majority, it doesn’t feel right for me to do that.

Just last week while speaking at UVA Law School, Justice Scalia tersely responded to a student’s question, “[h]ow do you reconcile your calls for judicial restraint with the court’s actions in Bush v. Gore,” by chiding, [o]h, get over it … [d]o you really think we weren’t going to grant cert.?”

In light of all the recent and forthcoming brouhaha, I just wanted to quote the Court‘s actual holding in Bush v. Gore, 531 U.S. 98 (2000), namely that:

Seven Justices of the Court agree that there are [equal protection] constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy …. The only disagreement is as to the remedy.

Id. at 111. Because the majority deferred to the Florida Supreme Court’s own holding that all electors had to be selected by December 12, 2000 (the date Bush v. Gore was handed down), the Court held no recount procedures that would not be violative of the Equal Protection Clause could be put in place in time to comply with Florida’s own laws. Id. at 110.

Therefore, I sill posit that the “low and petty partisan motivations” Vice President Gore ascribes to the majority must also be attributed to the Florida Supreme Court, to which the majority deferred. Moreover, there were actually seven Justices (one of whom was nominated by Mr. Gore’s own administration) who agreed the varying counting standards employed by the many counties in Florida did not secure the equal protection rights of voters in those counties.

Thx to 60 Minutes, Newsbusters, Shenanigans, and Above the Law