| A LAYMAN'S GUIDE TO THE SUPREME COURT DECISION IN BUSH V. GORE. |
by
Mark H. Levine, Attorney at Law.
Q: I'm not a lawyer and I don't understand the recent Supreme Court
decision in Bush v.
Gore. Can you explain it to me?
A: Sure. I'm a lawyer. I read it. It says Bush wins, even if Gore got the
most votes.
Q: But wait a second. The US Supreme Court has to give a reason, right?
A: Right.
Q: So Bush wins because hand-counts are illegal?
A: Oh no. Six of the justices (two-thirds majority) believed the
hand-counts were legal
and should be done.
Q: Oh. So the justices did not believe that the hand-counts would find any
legal ballots?
A. Nope. The five conservative justices clearly held (and all nine
justices agreed) "that
punch card balloting machines can produce an unfortunate number of ballots
which are
not punched in a clean, complete way by the voter." So there are legal votes
that should
be counted but can't be.
Q: Oh. Does this have something to do with states' rights? Don't
conservatives love
that?
A: Generally yes. These five justices, in the past few years, have held
that the federal
government has no business telling a sovereign state university it can't
steal trade
secrets just because such stealing is prohibited by law. Nor does the
federal
government have any business telling a state that it should bar guns in
schools. Nor can
the federal government use the equal protection clause to force states to
take
measures to stop violence against women.
Q: Is there an exception in this case?
A: Yes, the Gore exception. States have no rights to have their own state
elections
when it can result in Gore being elected President. This decision is limited
to only this
situation.
Q: C'mon. The Supremes didn't really say that. You're exaggerating.
A: Nope. They held "Our consideration is limited to the present
circumstances, or the
problem of equal protection in election processes generally presents many
complexities."
Q: What complexities?
A: They don't say.
Q: I'll bet I know the reason. I heard Jim Baker say this. The votes can't
be counted
because the Florida Supreme Court "changed the rules of the election after
it was held."
Right?
A. Dead wrong. The US Supreme Court made clear that the Florida Supreme
Court
did not change the rules of the election. But the US Supreme Court found the
failure of
the Florida Court to change the rules was wrong.
Q: Huh?
A: The Legislature declared that the only legal standard for counting
votes is "clear
intent of the voter." The Florida Court was condemned for not adopting a
clearer
standard.
Q: I thought the Florida Court was not allowed to change the Legislature's
law after the
election.
A: Right.
Q: So what's the problem?
A: They should have. The US Supreme Court said the Florida Supreme Court
should
have "adopt[ed] adequate statewide standards for determining what is a legal
vote".
Q: I thought only the Legislature could "adopt" new law.
A: Right.
Q: So if the Court had adopted new standards, I thought it would have been
overturned.
A: Right. You're catching on.
Q: If the Court had adopted new standards, it would have been overturned
for changing
the rules. And if it didn't, it's overturned for not changing the rules.
That means that no
matter what the Florida Supreme Court did, legal votes could never be
counted.
A: Right. Next question.
Q: Wait, wait. I thought the problem was "equal protection," that some
counties
counted votes differently from others. Isn't that a problem?
A: It sure is. Across the nation, we vote in a hodgepodge of systems.
Some, like the
optical-scanners in largely Republican-leaning counties record 99.7% of the
votes.
Some, like the punchcard systems in largely Democratic-leaning counties
record only
97% of the votes. So approximately 3% of Democratic votes are thrown in the
trash
can.
Q: Aha! That's a severe equal-protection problem!!!
A: No it's not. The Supreme Court wasn't worried about the 3% of
Democratic ballots
thrown in the trashcan in Florida. That "complexity" was not a problem.
Q: Was it the butterfly ballots that violated Florida law and tricked more
than 20,000
Democrats to vote for Buchanan or Gore and Buchanan.
A: Nope. The Supreme Court has no problem believing that Buchanan got his
highest,
best support in a precinct consisting of a Jewish old age home with
Holocaust survivors,
who apparently have changed their mind about Hitler.
Q: Yikes. So what was the serious equal protection problem?
A: The problem was neither the butterfly ballot nor the 3% of Democrats
(largely
African-American) disenfranchised. The problem is that somewhat less than
.005% of
the ballots may have been determined under slightly different standards
because judges
sworn to uphold the law and doing their best to accomplish the legislative
mandate of
"clear intent of the voter" may have a slightly different opinion about the
voter's intent.
Q: Hmmm. OK, so if those votes are thrown out, you can still count the
votes where
everyone agrees the voter's intent is clear?
A: Nope.
Q: Why not?
A: No time.
Q: No time to count legal votes where everyone, even Republicans, agree
the intent is
clear? Why not?
A: Because December 12 was yesterday.
Q: Is December 12 a deadline for counting votes?
A: No. January 6 is the deadline. In 1960, Hawaii's votes weren't counted
until January 4.
Q: So why is December 12 important?
A: December 12 is a deadline by which Congress can't challenge the
results.
Q: What does the Congressional role have to do with the Supreme Court?
A: Nothing.
Q: But I thought ---
A: The Florida Supreme Court had earlier held it would like to complete
its work by
December 12 to make things easier for Congress. The United States Supreme
Court is
trying to help the Florida Supreme Court out by forcing the Florida court to
abide by a
deadline that everyone agrees is not binding
.
Q: But I thought the Florida Court was going to just barely have the votes
counted by
December 12.
A: They would have made it, but the five conservative justices stopped the
recount last
Saturday.
Q: Why?
A: Justice Scalia said some of the counts may not be legal.
Q: So why not separate the votes into piles, indentations for Gore,
hanging chads for
Bush, votes that everyone agrees went to one candidate or the other so that
we know
exactly how Florida voted before determining who won? Then, if some ballots
(say,
indentations) have to be thrown out, the American people will know right
away who won
Florida.
A. Great idea! The US Supreme Court rejected it. They held that such
counts would
be likely to produce election results showing Gore won and Gore's winning
would cause
"public acceptance" and that would "cast a cloud" over Bush's "legitimacy"
that would
harm "democratic stability."
Q: In other words, if America knows the truth that Gore won, they won't
accept the US
Supreme Court overturning Gore's victory?
A: Yes.
Q: Is that a legal reason to stop recounts? or a political one?
A: Let's just say in all of American history and all of American law, this
reason has no
basis in law. But that doesn't stop the five conservatives from creating new
law out of
thin air.
Q: Aren't these conservative justices against judicial activism?
A: Yes, when liberal judges are perceived to have done it.
Q: Well, if the December 12 deadline is not binding, why not count the
votes?
A: The US Supreme Court, after admitting the December 12 deadline is not
binding,
set December 12 as a binding deadline at 10 p.m. on December 12.
Q: Didn't the US Supreme Court condemn the Florida Supreme Court for
arbitrarily
setting a deadline?
A: Yes.
Q: But, but --
A: Not to worry. The US Supreme Court does not have to follow laws it sets
for other
courts.
Q: So who caused Florida to miss the December 12 deadline?
A: The Bush lawyers who first went to court to stop the recount, the mob
in Miami that
got paid Florida vacations for intimidating officials, and the US Supreme
Court for
stopping the recount.
Q: So who is punished for this behavior?
A: Gore, of course.
Q: Tell me this: Florida's laws are unconstitutional, right?
A: Yes
Q: And the laws of 50 states that allow votes to be cast or counted
differently are
unconstitutional?
A: Yes. And 33 of those states have the "clear intent of the voter"
standard that the US
Supreme Court found was illegal in Florida.
Q: Then why aren't the results of 33 states thrown out?
A: Um. Because...um... the Supreme Court doesn't say...
Q: But if Florida's certification includes counts expressly declared by
the US Supreme
Court to be unconstitutional, we don't know who really won the election
there, right?
A: Right. Though a careful analysis by the Miami Herald shows Gore won
Florida by
about 20,000 votes (excluding the butterfly ballot errors).
Q: So, what do we do, have a re-vote? Throw out the entire state? Count
all ballots
under a single uniform standard?
A: No. We just don't count the votes that favor Gore.
Q: That's completely bizarre! That sounds like rank political favoritism!
Did the justices
have any financial interest in the case?
A: Scalia's two sons are both lawyers working for Bush. Thomas's wife is
collecting
applications for people who want to work in the Bush administration.
Q: Why didn't they recuse themselves?
A: If either had recused himself, the vote would be 4-4, and the Florida
Supreme Court
decision allowing recounts would have been affirmed.
Q: I can't believe the justices acted in such a blatantly political way.
A: Read the opinions for yourself:
http://frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf
(December 9 stay stopping the recount), and
http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf
(December 12 final opinion)
Q: So what are the consequences of this?
A: The guy who got the most votes in the US and in Florida and under our
Constitution
(Al Gore) will lose to America's second choice who won the all important 5-4
Supreme
Court vote.
Q: I thought in a democracy, the guy with the most votes wins.
A: True, in a democracy. But America is not a democracy. In America, in
the year
2000, the guy with the most US Supreme Court votes wins.
Q: Is there any way to stop the Supreme Court from doing this again?
A: YES. No federal judge can be confirmed without a vote in the Senate.
It takes 60
votes to break a filibuster. If only 41 of the 50 Democratic Senators stand
up to Bush
and his Supremes and say that they will not approve a single judge appointed
by him
until a President can be democratically elected in 2004, the judicial reign
of terror can
end... and one day we can hope to return to the rule of law.
Q: What do I do now?
A: E-mail this to everyone you know, and write or call your senator,
reminding him that
Gore beat Bush by several hundred thousand votes (three times Kennedy's
margin over
Nixon) and that you believe that VOTERS rather than JUDGES should determine
who
wins an election by counting every vote. And to protect our judiciary from
overturning the
will of the people, you want them to confirm NO NEW JUDGES until 2004 when a
President is finally chosen by most of the American people.
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