Scalia's offensive (ambiguity intended)

[Donald Crowley]

I was wondering if something like "beyond a reasonable doubt" because it
isn't a clear standard and is applied differentially across
thousands of juries (not to mention that it affects a fundamental right) is
now to be seen as a violation of equal protection?
How about "preponderance of the evidence"?

In my "simplistic" attitudinist days I think I could have predicted today's
action.  Since then I've tried to become
more sophisticated and realize that judicial decision making involves a
complex interaction of legal norms, institutional
constraints and broad ideological considerations.
Perhaps I should go back to the simplistic days.

Don



----------
> From: Howard Gillman <gillman at rcf-fs.usc.edu>
> To: The Law and Courts Discussion List <lawcourts-l at usc.edu>;
CONLAWPROF at listserv.ucla.edu
> Subject: Scalia's offensive (ambiguity intended)
> Date: Saturday, December 09, 2000 1:10 PM
>
> The Court conservatives are clearly interested in doing whatever they can

> to shut down this recount.  What legal arguments will they rely on?
>
> * Article II/3 U.S.C. 5?  This seems like a long-shot. The Florida
Supreme
> Court was extremely careful about drawing exclusively on 102.168.  Since
> that law was passed well before the election it cannot be that the very
> idea of having a contest (that gives broad powers to Florida courts to
> fashion a remedy) violates this aspect of federal law.
>
> * Equal protection/due process?  A likely part of any resolution.  The
> Florida SC tried to work around this by ordering recounts of undervotes
in
> all counties.  The conservatives' complaint?  It would have to be that
the
> standard is not clear enough and that might allow for too much
variability
> among the counties.  Apparently, then an "intent of the voter/totality of

> circumstances" approach to manual recounts is now to be declared
inherently
> unconstitutional -- more "unequal" than the use of different kinds of
> ballots/counting machines (with different error rates).  (Who among us
> would have argued this on Nov. 1st, 2000?)
>
> * Are undervotes "legal votes"?  Leave it to Scalia to innovate another
> argument.  Last time it was the completely unexpected distinction between

> relying on state constitutions v. state statutes.  In his concurring
> opinion, in response to the dissenters' claim that there is no
irreparable
> harm in counting legally cast votes, he now suggests that one of the key
> questions is whether undervotes are "legally cast."  What's the theory
that
> they are not legally cast?  That the machines reported a no vote for
> president?  Where's the illegality?  Expect some convoluted claims along
> these lines.
>
> Time for the Gore folks to support an appeal of the Seminole/Martin
County
> absentee voter decisions, on the grounds that they set aside clear
> statutory guidelines in favor of Florida state constitutional provisions
in
> favor of "the intent of the voter"?
>
> I'm sure it's just my state of mind, but at the present time this seems
> like one of the Court's most serious self-inflicted wounds.
>
> HG