On the June 20 broadcast of PBS' Charlie Rose, host Charlie Rose did not challenge U.S. Supreme Court Justice Antonin Scalia's false assertion that “the press unanimously” found that, in Rose's words, then-Republican presidential nominee George W. Bush “won that election in Florida.” In fact, as Media Matters for America has noted, according to The Washington Post, data from a study conducted by the University of Chicago's National Opinion Research Center (NORC) -- organized by a consortium that included The Washington Post, The New York Times, CNN, the Associated Press, the Tribune Co. (owner of the Chicago Tribune and the Orlando Sentinel), and The Wall Street Journal -- show that under several different criteria for assessing a voter's intent, former Vice President Al Gore would have received more votes than Bush after a statewide recount of all ballots “that were initially rejected by voting machines.”

Discussing the court's decision to stop the recount, which effectively decided the election in favor of Bush, Scalia and Rose had the following exchange:

SCALIA: As it turned out, the decision didn't overturn -- as you know, the press ran a study of what would have happened if the hanging chads, dimpled chads and all that stuff had been counted the way Mr. Gore wanted them counted --

ROSE: Some say we'll never know who won that election in Florida.

SCALIA: Well, the press unanimously -- and there were a number of different organizations involved -- they unanimously came to that conclusion.

In fact, according to the Post -- one of NORC's clients for the study -- the NORC data show that in a statewide recount, Gore would likely have emerged the winner under four criteria for determining a voter's intent. The Post reported that researchers in the study “examined all ballots that were initially rejected by voting machines. This included those that contained no discernible vote for president, known as 'undervotes,' and those that registered votes for more than one candidate, the 'overvotes.' ” The study then applied “different standards for determining voter intent and tallied results based on several scenarios that sought to approximate conditions on the ground in Florida.” The Post reported that the NORC data show:

• When the recount tallied ballots in which “at least one corner of a chad was detached from punch-card ballots,” Gore won Florida by 60 votes.
• "[U]nder the least-restrictive standard for interpreting voter intent, which counted all dimpled chads and any discernible optical mark (which in the case of optical ballots Florida's new election law now requires to be counted as votes)," Gore won Florida by 107 votes.
• Using a “more restrictive interpretation of what constitutes a valid mark on optical scan ballots” -- and in which chads had to be “fully punched” -- Gore won by 115 votes.
• Replicating “the standards established by each of the counties in their recounts” gave Gore 171 more votes than Bush.

Moreover, by stating "[s]even-two" in response to Scalia's claim that the Bush v. Gore decision “was not close,” Rose falsely suggested that the court voted 7-2 against allowing a recount to go forward. In fact, four of the nine justices dissented from the majority decision ending the recount, meaning that the decision was actually 5-4. Scalia responded to Rose's assertion by stating, “It was seven to two on the principal issue of whether there had been a constitutional violation. It wasn't close.” In fact, while two of the dissenting justices -- David Souter and Stephen Breyer -- agreed that the procedures for the recount ordered by the Florida Supreme Court violated the Equal Protection Clause, their position was not that the recount should be halted, but that Florida should be allowed to conduct a recount under different procedures. So, contrary to Scalia and Rose's suggestion, four justices -- not two -- took the position that a recount should go forward.

From the June 20 broadcast of PBS' Charlie Rose:

SCALIA: See, that is the great attraction of the other philosophy. The “living Constitution” judge is a happy fella.

ROSE: Let me just go one more --

SCALIA: You always reach a result you like. And I don't, I truly don't.

ROSE: Now, some would even take that to Gore versus Bush, as you know. And they would say that, “Boy, you never like throwing things back to state courts.” You believe that state courts ought to be respected.

SCALIA: No, I mean, well --

ROSE: What?

SCALIA: This is the notion that those who oppose activist judges oppose judges doing actively what they're supposed to do. That is not my position.

ROSE: Did any of that violate principles of yours, that decision?

SCALIA: No.

ROSE: None at all?

SCALIA: Not at all.

ROSE: Across the board?

SCALIA: Across the board.

ROSE: Really?

SCALIA: I would have preferred to base the decision, because it was my judgment that it was much clearer, on the alternate ground that the chief justice's opinion suggested, but which did not get five votes. It got four.

ROSE: As you know --

SCALIA: The decision was not close. I mean, you know --

ROSE: Seven-two.

SCALIA: It was seven to two on the principal issue of whether there had been a constitutional violation. It wasn't close. And I don't know what would one have expected the court to do?

ROSE: Let the recount continue is what they would have wanted them to do, I guess.

SCALIA: Yeah, but --

ROSE: The court would have said, let's not decide this right now, let them -- even though the -- Gore initiated the process.

SCALIA: What if that -- what if it was unconstitutional to have that recount? You're going to let it continue and come to a conclusion, and then overturn it? Is that better?

ROSE: What would have been the danger of that?

SCALIA: The danger of that is that it -- in appearances, it's even worse for the court.

ROSE: Is it really? Because some would argue you never realize what the decision might have been or what the numbers might have shown you, and therefore, it looked like -- and that's the reason it became so controversial -- you were stopping the voting, as you know.

SCALIA: No, I don't think so. The reason to stop it sooner -- jeez, I really don't want to rehash it.

ROSE: I know you don't. But I just wanted -- but tell me --

SCALIA: The last thing I'm going to say about it. The reason to stop it sooner was not, “Ooh, we're worried that it's going to come out the wrong way.”

ROSE: But are --

SCALIA: The reason to stop it sooner was that the country -- you forget what was going on at the time. We were the laughingstock of the world. The world's greatest democracy that couldn't conduct an election. We didn't know who our next president was going to be. The lengthy transition that has become standard when you change from one president to another could not begin because you didn't know who the new president was going to be. It was becoming a very serious problem.

ROSE: So, therefore --

SCALIA: And to say --

ROSE: -- it was the responsibility of the United States Supreme Court to --

SCALIA: No, but the issue before the United States Supreme Court is having decided the case, having decided this is unconstitutional, should we nonetheless let the election go on, or is it time to, you know, to cut it off and let's get -- let's move on?

ROSE: Now --

SCALIA: As it turned out, the decision didn't overturn -- as you know, the press ran a study of what would have happened if the hanging chads, dimpled chads and all that stuff had been counted the way Mr. Gore wanted them counted --

ROSE: Some say we'll never know who won that election in Florida.

SCALIA: Well, the press unanimously -- and there were a number of different organizations involved -- they unanimously came to that conclusion.