Here are the numbers:

( http://www.opednews.com/art... ) Note: follow the link for an interesting, if not surprising, description of the demographics of Fox viewers.

 Noteworthy of this result is the very nearly unanimous opinion among Fox viewers. In the social sciences, one rarely finds a phenomenon with that high a percentage. For example, people assume that married people all have sex with each other and on a fairly regular basis. One study found that 15 to 20 percent of couples in the US lead what the researchers called a "sexless marriage" ( http://www.prnewswire.com/c... ). Hence, a 99% rate of true 'believers' among Fox viewers is truly remarkable. In fact, it suggests that there might be a filtering effect going on, viz.,, that people watch Fox News who have a specific set of world views and don't listen to counter opinions or data.

 The Supreme Court decision that this minority opinion (among the electorate) agrees with was based on the following Constitutional principles:

"The Equal Protection Clause of the Fourteenth Amendment, on which the decision in Bush v. Gore was based, states:

No State shall ... deny to any person within its jurisdiction the equal protection of the laws.

Article II, § 1, cl. 2 specifies the number of electors per state, and, most relevant to this case, specifies the manner in which those electors are selected, stipulating that:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

This clause arguably gives power to only one branch of Florida's state government (i.e., the state legislature).

The most important statute in this case was 3 U.S.C. § 5, which regulates the "determination of controversy as to appointment of electors" in Presidential elections. Of particular relevance to this case was the so-called "safe harbor" provision, which allows states to appoint their electors without Congressional interference if done by a specified deadline:

If any State shall have provided ... for its final determination of ... the appointment of all or any of the electors of such State ... at least six days before the time fixed for the meeting of the electors, such determination ... shall be conclusive.

Since the electors were set to meet December 18, the "safe harbor" deadline was December 12, just one day after the Court heard oral arguments in this case.

According to 28 U.S.C. § 1257:

Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States..."

( http://en.wikipedia.org/wik... )

The most memorable part of the decision was that seven of the justices agreed that the various counties in Florida were conducting the recount using different methods; some methods would necessarily be more accurate than others and so the inaccurate ones were, under Florida's authority, violating Bush's rights under the Equal Protection Clause. 

(A recount was ruled impossible because it would force the state to violate the safe harbor deadline December 12 by only five of the justices).

The losing argument, by Gore's lawyers was that 

"...there was indeed a statewide standard, the "intent of the voter" standard, and that this standard was sufficient under the Equal Protection Clause. Furthermore, Gore argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render every state election unconstitutional and that each method has a different rate of error in counting votes. A voter in a "punch-card" county has a greater chance of having his vote undercounted than a voter in an "optical scanner" county. If Bush wins, Gore argued, every state would have to have one statewide method of recording votes in order to be constitutional," (ibid).

As common sensical as that seems, it is important to remember that it was the losingargument. It is also the opinion of most non-Fox viewers in the country. Further,

"…(T)he majority opinion was criticized by Harvard University law professor Alan Dershowitz, who wrote:

[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.

 Some critics of the decision argue that the majority seemed to seek refuge from their own logic in the following sentence in the majority opinion: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." The Court's defenders argued that this was a reasonable precaution against the possibility that the decision might be read over-broadly, arguing that in the short time available it would not be appropriate to attempt to craft language spelling out in greater detail how to apply the holding to other cases. Critics, however, interpreted the sentence as stating that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable," (ibid).

In fact, the decision was likened to the worst decision in the court's history - the infamouse Dred Scott decision which the court had to overturn itself a hundred years later - by President Clinton, Jesse Jackson and others, (ibid).

So. The point of this blog entry is not to argue that old territory over again, but to compare it to the Minnesota Supreme Court's recent ruling in the Coleman v Franken case, which they decided in Franken's favor.

It is an interesting comparison because the Coleman lawyers were arguing against the recount which put Franken ahead (no deadline this time!) on the basis that same had violated... you guessed it.... Coleman's right to equal protection under the Fourteenth Amendment!! 

That's right. Coleman's argument was based on essentially the same grounds that the Supreme Court had decided in Bush's favor in 2000. "The Coleman camp contends the case is about equal protection and due process, particularly in relation to the counting of absentee ballots, while the Franken folks argue that neither constitutional concern is at play here... The Coleman team contends that election judges throughout the state utilized different standards in either rejecting or accepting absentee ballots on election night, and presented evidence to that effect at trial," ( http://www.minnlawyer.com/a... ).

Further, "“[T]he constitutional guarantees of equal protection and due process mandate that a uniform standard be applied to all absentee ballots cast in the election — regardless of when the final determination whether each constitutes a legally cast vote is made,” Coleman wrote.

Coleman compares the case to the 2000 U.S. Supreme Court’s decision in Bush v. Gore, claiming there is “no logical distinction” between the unequal treatment of equivalent chads caused by the Florida Supreme Court’s imprecision (different counties interpreting the court’s holding differently) and the unequal local treatment of absentee ballots caused by imprecision in officials’ understanding and intentional application of the statutory standard set forth in Minn. Stat. sec. 203B.12, subd. 2," (ibid).

Many observers remarked at how detailed the Minnesota Supreme Court's decision was written, "In its 32-page decision, the court picked apart Coleman’s legal claims. The decision rejected two key constitutional claims: that Coleman’s due-process rights were violated and that the varying ways that election workers handled absentee ballots violated the Constitution’s equal-protection clause.." ( http://news.yahoo.com/s/pol... ).

While some folks were guessing that the care exhibited by the Minnesota Supreme Court reflected their desire to get it right, which is undoubtedly true, there is also the possibility, that I'd like to point out, that the court wanted their decision primed for Federal review.

It was well known that the GOP leadership was pushing Coleman to stay in the fight as long as possible, as the Democrat vote that Franken would provide was the famous 60th necessary to overcome a GOP filibuster. ( http://thehill.com/leading-... ). "Several Republicans compare the Coleman case to the Bush v. Gore decision in 2000, in which the standard of differently-counted votes came into play," ( http://thehill.com/leading-... ).

Naturally, with the court deciding with Bush on this issue last time, they were confident about returning there with Coleman.

But in the end, Coleman declined to take it that far. Why?

It could be that the court has a different set of Justices now than it had in 2000; but the new faces are both Bush appointees. They are Alito and Roberts. This is just my opinion, but I believe Alito's vote could probably be counted on for Coleman, as he rarely fails to back a conservative cause. Roberts, on the other hand, is a Constitutionalist. I wonder if he shares the low opinion of Bush v Gore as the majority of the non-Fox news viewing public?

I think it's a safe guess that Roberts doesn't watch Fox, but who knows? Most analysts hold both of them on the conservative side of most issues ( http://www.usatoday.com/new... ).

I think it much more likely that the folks who believe the Supreme Court either would reverse itself or would refuse to hear the case are correct. 

Why? Because the argument that the Gore lawyers made is already taking place. In Ohio, for example, the state was forced to create a statewide method for counting votes, for fear the different methods around the state that were in place could be held  unconstitutional. "The majority, in an opinion by Circuit Judge Boyce F. Martin, Jr., joined by Circuit Judge R. Guy Cole, Jr., concluded that the 2000 decision created a precedent binding on lower courts. “The Supreme Court does not issue non-precedent opinions,” Martin wrote.”Even if the Court was playing fast and loose with the law, we, as an inferior court, are not in a position to disregard Supreme Court precedent because we think they got it wrong….Whatever else Bush v. Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it,"( http://www.scotusblog.com/w... ).

But importantly in this regard is the part of the Court's decision at the time, which seemed to limit the decision to the situation at hand, and withhold judgement on any and all cases that might come up like it in the future. Again, "Critics, however, interpreted the sentence as stating that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable," ( http://en.wikipedia.org/wik... ).

I think it's quite possible that the court at the time was afraid that the Florida counties who were busily recounting their vote would act unethically and put Gore in office against the actual will of the people. Of course, one has to suppose that the people performing the recount were corruptible and that the original count was accurate, despite some evidence to the contrary. This analysis has been floated for some time, however, by David Strauss of the University of Chicago, among others, and it does explain how future litigants might expect that a similar decision wouldn't go their way. ( http://press-pubs.uchicago.... ).

The problem with a court making a decision based on such fears, however, are now clear. 

1. They wrote a decision which is widely viewed as deeply flawed and which they themselves are not expected to back.

2. The evidence about the popular vote that has emerged since then indicates they backed the wrong horse, and thus created the impression that they, and the American government itself, from the very highest levels, were for sale at the worst or highly politicized at the best.

3. They put the worst president in history into office under these questionable circumstances.

The evidence that I am reading this correctly? The fact that Coleman, despite the backing of the GOP, both in terms of money and cheerleading, didn't pursue the case any farther.

That happens only when the outcome is already obvious. 

Norm Coleman knows what that outcome would be. And he thereby lets the world in on the truth about Bush v. Gore - the worst SCOTUS decison in the modern era. 

So, if you don't watch Fox News, consider that the broken watch theory could hold true here. Of course, understanding what really happened takes some effort, but it at least holds the promise of a government that is still secure from purchase by Texas oil men. That, at least, is a silver lining that I can appreciate.