With Scalia leading the way, Supreme Court commits a blunder

By Thomas Oliphant, Globe Columnist, 12/11/2000


A LITTLE civil disobedience toward Justice Antonin Scalia is in order in advance of today's US Supreme Court argument on a case he suggests has already been decided in advance.

His flat-out factual misstatements can wait. The first task is to flout his insistence that the country not find out who received the most votes in Florida last month on the hilarious grounds that this might undercut the legitimacy of the court's de facto selection of the candidate for president who probably got fewer votes.

As an authoritarian more than a conservative, Scalia's position warping long-established rules of court procedure is that ''irreparable harm'' would take the form of a ''cloud.''

It's not hard to defy his wishes. No one disputes the fact that 185,000 Florida ballots were found by county officials or tabulating machines not to contain an automatically discernible preference for president. A large majority of them - roughly 120,000 - were so-called overvotes, with more than one candidate getting a clear mark; no one disputes that, either.

The remainder, around 65,000 ballots, represented so-called undervotes, with no candidate getting an immediately discernible vote. Many of these are genuine blanks, representing an ''I ain't votin' for nobody'' sentiment. But many were votes that can be discerned, usually quite easily, by looking at them. This is what the big argument is all about.

As it turns out, The Miami Herald made it simple to thumb one's nose at Scalia eight days ago. With the assistance of its former chief data analyzer and now Arizona State professor, Stephen Doig, the paper applied varying percentages of actual vote assumptions to the results as of Nov. 7 in every one of Florida's 5,885 precincts.

If you go from one extreme assumption about the voters' intent in these 185,000 ballots to the other, it doesn't matter - Al Gore wins. To take the absurd proposition that 90 percent of these ballots were actually meant to be blanks, the vice president still comes out ahead statewide, by 1,443 votes. To take the equally absurd proposition that all of them were intended as a vote for somebody, Gore wins by 23,408 votes.

But take a more reasonable assumption - that one out of four uncounted ballots was a true plague-on-all-houses blank, and Gore still has roughly 17,000 more votes.

This is only the tip of a counting iceberg that awaits the five-justice Titanic that ordered the diligent efforts by Floridians crudely shut down Saturday. The Miami Herald is ready to examine every vote in Miami-Dade County as soon as the ballots are available.

In other words, the ballots are going to be counted, and we are going to know with reasonable confidence what the result was. The only question is whether the ballots will be counted only for history, or whether they will count for real.

The other element of Scalia's tortured concurring view that may or may not reflect the views of his four colleagues in the majority who chose not to sign on to his screed, involves his preposterous assertion that George W. Bush would be ''irreparably harmed'' by a recount on an ''erroneous basis'' now that would prevent an ''accurate'' recount on a ''proper basis'' later.

This monstrosity is exposed simply by reporting it: Scalia says it is ''generally agreed'' that each manual recount causes ''degradation'' of the ballots. It is typical of his judicial intemperance that he assumes as true some of the very facts in contention. His focus on the concept of ''irreparable harm'' stems from its status as one of the two grounds for granting the kind of stay that Bush won. We should respect that one of them was satisfied - namely, the court's view that there is a substantial probability that Bush's case will prevail this week on the merits.

But the other has been crudely warped by the majority. The concept of stay traditionally has been issued for something like loss of life, or a home, or a business, before one's legal case can be heard. In this case, Scalia claims it involves harm to Bush, which in a true stretch he extends to ''the country'' - that knowing the count's results would cast that aforementioned cloud over ''his election,'' thus assuming as true still more facts in dispute.

The issuance of the stay could more accurately be said to cause irreparable harm to Gore. After all, any certification of a recount result favoring him can be stayed pending the court's substantive decision, as the court of appeals in Atlanta wisely ordered before the Supremes blundered in.

The full court could still pull back from its intemperance. Meanwhile, in the guise of playing Big Brother to protect us from the cloud that is truth, Scalia has made that cloud much bigger and blacker.

Thomas Oliphant's e-mail address is oliphant@globe.com.