Pretending that Bush v. Gore Was Constitutional Law: Minnesota edition

Michael Stokes Paulsen, in the fine tradition of Bush v. Gore itself, attempts to argue that the recount that gave the Minnesota Senate election to Al Franken “is an obvious, embarrassing violation of the Constitution.” This argument, as you would expect, consists almost entirely of blatant mischaracterization of the facts:

• Despite Paulsen’s repeated assertions, Bush v. Gore was not a 7-2 decision. No dissenter joined any part of any majority opinion, including its equal protection analysis.
• This isn’t just a pedantic point, because the equal protection rationale (such as it was) used by the majority was fundamentally different than the one advanced by the dissenters (which required an appropriate remedy.) Paulsen claims that under Bush v. Gore “Whatever standards Minnesota uses must be applied uniformly, consistently, and under clear standards not admitting of local variation.” I agree it would be nice if this had been Bush v. Gore‘s holding, but of course the Court said no such thing (“The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.”) Nowhere did the Court claim that complete uniformity was required to comport with “minimal safeguards,” and indeed the Court declined to say anything beyond the specific facts before it. And, of course, the Court’s remedy makes clear that unformity is not a Constitutional requirement, since the recount that gave Bush the office was not remotely uniform. Despite Paulsen’s attempt to skate around this question, you can’t just seperate the remedy from the holding.
• Like most of the Court’s apologists, Paulsen also convieniently ignores the fact that the Florida courts in 2000 did not use a uniform recound standard because the Supreme Court told them not to. Paulsen has to ignore this, of course, because it destroys his claim that Bush v. Gore stands for a requirement for recounts “not admitting local variation.”)
• Paulsen asserts that “subsequent media counts confirmed that Bush won anyway, under any uniform standard.” Sadly, no!
• And, finally, like most “Al Franken stole the election” types, Paulsen never gets around to saying what was wrong with the decisions that favored Franken. The fact that different boards reached different results, of course proves nothing; it doesn’t even prove that they were applying different standards (although the Constitution as currently interpreted clearly allows them to do so anyway.) In particular, he fails to put forward an argument for why improperly excluded absentee ballots shouldn’t be counted, for what I take to be obvious reasons.

Of course, one suspects that Paulsen doesn’t really believe that vote count systems must be uniform (I must have missed his op-eds making such claims when local variations in the vote count came out in Coleman’s favor.) Rather, in a faithful application of Bush v. Gore, we seem to know when a count is sufficiently constitutional at the exact point at which the Republicans win. Fortunately, the Minnesota courts won’t buy it and the Supreme Court isn’t going to revisit its 2000 atrocity.