The Wall Street Journal offers an opinion piece from Michael Stokes Paulsen stating that the Minnesota election of Al Franken is unconstitutional, based on Bush vs Gore (2000).
I don’t have any strong opinion on whether Franken or Coleman should be declared winner, not having followed all of the shenanigans. However, there are two things that spring out from the article.
The first is that Paulsen ignores the fact that the Supreme Court said that "Our consideration is limited to the present circumstances…", and was not to be used as prededent. You’d think that a professor of law would know that minor detail of the highest profile legal case of the last 10 years, given that it was mentioned in most of the press coverage.
The second thing that struck me was the following quote:
The problem with the remedy was that it arguably violated the same principle that led the Court to invalidate the recount: the need to treat all votes equally. It had the practical effect of awarding the election to Bush (though subsequent media counts confirmed that Bush won anyway, under any uniform standard). This has led to enduring partisan criticism of the case, some fair and some unfair.
Note the comment I’ve highlighted. Wikipedia has a nice summary of the Florida recounts , and a quick perusal shows that what Paulsen states is the exact opposite of the truth. In the first media consortium recount, under every uniform statewide recount scenario Gore won Florida. The only way to get a Bush win is to have a non-uniform standard by only re-evaluating a limited number of ballots.
The second media review cited by Wikipedia, run by BDO Seidman, held that if you recount the votes by the strictest standard, Gore won. The third media review found that either Bush or Gore won, depending on whether you made an attempt to determine the meaning of apparent overvotes such as those caused by the poor ballot design. (If you did, and used a consistent standard, Gore won.)
So Paulsen’s throwaway comment assuring us that Bush won fair and square is the exact opposite of the truth. If the votes in Florida had all been counted according to a declared uniform standard, Gore would have won. The only reason Bush won is that a statewide uniform recount wasn’t performed. It’s important that we remember that.
(Still, what do you expect from a Murdoch rag?)