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He quoted Justice Antonin Scalia’s recognition in Scott that courts must “slosh through the fact-bound morass of reasonableness.”

The federal court should have heeded the advice of Justice Antonin Scalia in the 2000 Bush v.

Scalia issued a concurring opinion arguing that stopping the counting until the constitutional issues could be addressed made sense in this context:

Scalia’s statement was controversial, because the presidential election was up against a strict deadline to finalize results for the presidency, and stopping the counting essentially allowed Bush to run out the clock.

Davis, dissented from the majority opinion and signed on to the dissent of former Justice Antonin Scalia, who wrote: “I do not believe that ... there may be some situations in which the courts can order release.”