Don

Subject: Your Supreme Court statement

This analysis, written by a California attorney, is a challenging read, but worth wading through...

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 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 vote 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 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 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 rent-a-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?

A: Yes

Q: And the laws of 50 states that allow votes to be cast or counted differently are unconstitutional?

A: Yes. And 33 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 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: December 12 2000 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 2000, the guy with the most US Supreme Court votes wins.

Q: So what will happen to the Supreme Court when Bush becomes President.

A: He will appoint more justices in the mode of Thomas and Scalia to ensure that the will of the people is less and less respected. Soon lawless justices may constitute 6-3 or even 7-2 on the court.

Q: Is there any way to stop this?

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: Email 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.

Mark H. Levine, Attorney at Law

Steve

It's the last baseball game of the season. The Democrats are a half game ahead of the Republicans in wins. The game is being held in Florida. It's the bottom of the ninth inning and the Democrats are up to bat. The Republicans are ahead by 1 run. The Democrats have one man on base. The count is 3 balls and two strikes. The Democrat batter hit a high ball, down the left field line, higher than the foul line pole. The Republicans start to march, declaring that the Democrats are "sore losers" and that the Republicans won because the ball was out of bounds. The Democrats call the ball in and a home run. The Republicans protest the game, calling a time out. One judge calls the ball fair. Another judge calls the ball foul. It starts to rain. The owner of the ball park, who is a Republican fan turns out the lights because it looks like rain. The judges meet and say the season is over and that the Republicans won because they had the most points when the lights were turned off.

Mark

Try this scenario instead: The Democrats and Republicans are playing the baseball game in Florida. The Republicans win, albeit barely. Since so many runs were scored, and the game was so close, the umpires review videotapes of the game to determine whether or not each run should count. As in prior baseball games, some players neglected to touch all the bases, so their runs didn't count. After their review, the umpires determine that the Republicans were indeed the winners among the valid runs.

The Democrats then contest the game, asking that runs be counted because the players "intended" to touch the bases, even though they didn't. Of course, they only want to review the runs in the 3rd, 5th, and 7th innings, and only during their own at-bats. Even after selectively determining that certain non-counted runs should count, by looking at dimpled bags, they realize that they are still behind in the score. The Republicans appeal to the commissioner of baseball to stop the run recount. The Democrats complain that the owner of the stadium is the brother of the Republican manager. The Republicans complain that the umpires are Democrats. For six weeks, the country has no idea who won or lost the game. Many fans don't care which team won. Finally, the commissioner of MLB steps in and says that there was no uniform standard followed for recounting the runs. So, as has always been the case, the only runs that count are those runs where the players touched all the bases. Game over. Next season, the Democrats should sign up more intelligent players.

Doug at 11:18 AM 12/9/2000 , Mark someone wrote:

Since I knew the election would be close, I was ready to accept a President Gore if he had won the vote. He didn't. He lost the machine vote. He lost the first recount. He lost the second recount.

The only one he lost was the machine vote. The other recounts were never completed. Now, if he is elected President after all this legal maneuvering, I will never accept his administration as legitimate. Neither will a vast majority of Americans.

"vast majority"?? -- when he had 50+% of the popular vote? other countries, his actions are grounds for a violent revolution. Perhaps that won't happen here, but be prepared for some serious civil disobedience.

Quite the opposite of what you thought. Here is the quote from my friend Luis KW of Lisboa:

People around here (Europe) is amazed with the lack of independence of your Judges and Courts (Supreme, and Florida's). How can a Judge say (without laughing) that there's no use on recounting 10,000 or 11,000 doubtful votes, arguing it wouldn't change anything to the final result, when the difference among the candidates is under 400 votes???? I have seen the amazing printed ballots of Palm Beach. No wonder 19,000 voters made the same mistakes and double voted... it is too obvious that the ballot was mis-printed or so many people would not have made such a silly mistake. And what about the hundreds of Negroes that were unable to vote thanks to the State Militia? I think that if ALL the votes are not recounted, people all over the world will think that the new president was elected in cheated election. And the US will look like any other American banana's republic.

Steve

Great, Doug. Republicans keep claim about the "rules being changed". The rules at the start were that every registered voter has the opportunity to vote and their vote is to be counted. No, I don't think that it is right that "pregnant chads" be counted as votes. If somebody is so incompetent to not be able to push the tab at least half way (not 1/4 way) out then they should be voting through the mail, ahead of time.

Republicans, led by Rush Limbaugh, talk all about those pregnant chads but ignore all the votes that were rejected by the machines that had two or three chads removed. According to the law in most states, including Florida and Texas, hand counts are to be used in the case of close votes. In testimony before the courts, a Bush expert even admitted that machine counts aren't best. Then Republicans call Democrats as not being democratic because of their using the courts to fight for the following the rules, as laid out before the vote started, counting all votes.

Now the Republicans try to run out the clock so not all votes are counted. They call that democratic? They also protest the US Supreme Court, unless it's in their favor. If they don't like true democracy (or as close as we can get) and they aren't supportive of our system of checks and balances, they should find another country.

Mark

And that's where I think you are wrong, Steve. The rules at the start were that every registered voter has the opportunity to vote. But where is it a rule that every vote is to be counted? You yourself said that pregnant chads shouldn't be counted. So, are you already violating your rule? Undervotes and overvotes were counted--they were counted as no vote for president.

Speaking of running out the clock, you know that if Florida misses the Dec. 12th deadline for certifying electoral college electors, Gore will win (since he has a majority of the remaining electors). So who has the motive to delay things through litigation? Not Bush. No one argues that people should not be allowed to vote. What we disagree upon is what should count as a vote. If the President vote is blank, but all other officers are chosen from a single party, does that mean the voter "meant" to vote for the presidential candidate of that same party? If there is a dimpled chad for president, but not on any other choices, does that count? If the chad is hanging by one, two, or three corners, should that count? (I think so). Herein lies the problem. What standards are we using to discern the intent of the unknown voter? We don't have any!

Finally, why are we not concerned with any other state? There were thousands of ballots thrown out nationwide for exactly the same reasons. If you truly want every vote to count, let us hand count every vote in every state. We may get an accurate count in a year or so. Meanwhile, let's leave the presidency vacant. After all, I didn't notice any difference when the federal government shut down a few years ago, did you? :)

P.S. Doug, how can you say that Gore has only lost once? The machine count had Bush the winner. Because the vote was so close, Florida law demanded a hand recount. Fine. But the parties argued over the deadline, the standards, and the locations of the hand recount. When the legal deadline for the recount passed, Bush was still in the lead. The Florida Supreme Court then extended the deadline. Some counties couldn't make it in time, but when the extended deadline passed, the election was certified. Bush had won again. That's three.

Jeannie

Dad, You seem to think Gore is some smart guy. What is his IQ? I seem to remember he didn't get high grades in college. Just because he got a degree doesn't mean he is smart. I know a lot of people who didn't do well in school but are very smart. Most of them are artists who march to a different beat. I see Gore as that kind of guy.

Lionel

Jeannie: Smart compared with Bush. Actually, grades don't equate with smarts. Some students are just lazy. "Knowledgeable" and "experienced" would be better adjectives than "smart," actually. He was an excellent member of Congress before he became vice-president. Have you seen Bush's resume? Dad

Bill

To me, "smart" means "a good comprehension of one's environment/surroundings." Add to that, "the ability to communicate that comprehension." Using those criteria, I see Gore way ahead of Bush. But then you add qualities such as honesty and integrity into the equation, and both candidates fail miserably, as do most politicians (and almost anyone in any kind of position of power). In other words, I don't think either one will be a president whom I, or most anyone else, can rally behind. It's too bad we can't require some sort of "intelligence, honesty and integrity" test of all prospective political candidates. But then, of course, we'd have a country without politicians! Wouldn't that be great!?

But seriously, the only way to settle this vote tally problem to everyone's satisfaction is to do a manual recount of every disputed ballot. I can't believe that the Florida Supreme Court had the common sense to order exactly that (as I understand their ruling). Equally unbelievably, we then have the fairly obviously prejudiced U.S. Supreme Court coming in and contradicting Florida's decision, voting mostly along party lines, and throwing the whole thing back into confusion.

I think Doug's Portuguese friend is right: the rest of the world probably won't respect our next president, whoever he is.

Lionel

Steve is absolutely right. Gore won the popular vote nationwide, and doubtless would have won the Florida popular vote if the Republicans hadn't schemed to prevent so many Blacks from voting. (He also would have won, of course, if Nader hadn't siphoned off 30,000 votes.) Excluding Florida, Gore is also ahead in the electoral votes, and would surely capture the Florida electoral vote if all the votes were counted. It's obvious to any objective observer that the Bush team has sought to delay that count until the deadline is past, thereby assuring Bush's victory. Mark has suggested that there will be demonstrations in the street if Gore wins. There should be demonstrations if Bush wins, for obviously he and his team have sought to steal the election (or, more properly, "robbed," since it was done openly.) Oh well, if Bush eventually is declared the winner, as I suspect he will be (albeit illegally), his presidency will provide rich fodder for the late-night comedians. Why do you suppose Bush has been kept hidden on his ranch out of view of the reporters, other than the fear that, like Reagan, being unable to say "good morning" without a cue card, he'd make an ass of himself every time he opened his mouth to speak without a teleprompter. If I sound bitter, I am. I don't want America to be the laughingstock of the world.

Mark

Come on, Lionel! Do you really think that America will be the laughingstock of the world because it elected a guy who might not be playing with a full deck? Looking at the past presidents, a lot of them strike me as average intellects. The smarter ones seem to be the ones who get us into more trouble (Wilson and the League of Nations, for example). And, in any case, aren't we already the laughingstock of the world for Clinton getting oral sex in the Oval Office from Monica Lewinsky, telling us he didn't inhale, eating Big Macs, or discussing his choice of underwear on MTV? Bush may not be the sharpest tool in the shed, but I don't think he'll demean the office like Clinton did. Cheer up! At least the Bee will go back to its role as government watchdog with a Republican in the White House--a role it seems to have abandoned during the past 8 years while China was stealing our secrets.

Lionel

Laughing stock already? Not at all. Most countries don't care about the private lives of their leaders; they're more concerned that they have the ability to lead, and Clinton certainly has that. I don't recall Republicans being concerned when Republican Eisenhower was having an affair with his chauffeur, nor should they have been. Lionel

George Bush Sr. was known to be having an affair the whole time he was in the White House, but the woman would not come forward, so there was no story. Reagan AND Nancy were having affairs. Clinton AND Hillary, ditto (Hillary's more female-oriented anyway). People who are having affairs are sleaze bags, that is well accepted as fact. The question is: can we afford to have a leader who's NOT a sleaze bag in a world full of sleaze bags? I think we should elect the sleaziest person possible. We have done that every time, except for Carter, and look what a mistake he was! Clinton is the sleaziest person ever to sit in the oval office, and look how we've prospered! Bush Jr. was brought up in a family of sleaze bags. Even though he is too dumb to be really innovative in that regard, I think we will be pleasantly surprised by a Bush presidency! Sure, he may not get into massive cocaine smuggling the way Reagan did, or rent out the US military to a small dictatorship in the middle east the way his dad did, but he is sure to come up with SOMETHING that will keep our economy perking along. Don't worry, be happy! Just hold your nose and smile! It's easy!

Mark

I don't know you [Luis], but I appreciate hearing your point of view. Let me respond to a few things, however. First of all, I don't think African Americans would appreciate being called Negroes. It isn't politically correct. And what evidence are you referring to? Just because Jesse Jackson gets on television to complain doesn't mean that there was "abuse of the Negroes' votes." You said that you were sure that most of the counters were Republicans. Wrong! In fact, most of the canvassing boards that began the recounts were Democrats. Only lately have there been representatives from both parties. And, in case you don't understand, if Florida fails to certify its electors, Gore wins the election with the majority of the rest of the electoral college. So who has the most to gain by recounting as slowly as possible? You also mentioned the prejudice of having Bush's brother as the governor of Florida. But you fail to mention the prejudice of having "Democratic" canvassing boards, and a "Democratic" Florida Supreme Court. Or do you not see that as equally prejudicial? If Republicans aren't to be trusted and are biased in favor of Bush, then why are Democrats similarly not to be trusted since they are biased for Gore? Finally, I don't have a problem with a foreigner talking about American elections. It is always good to get another perspective. But I also keep in mind the bias that foreigners may have. If Bush or Buchanan became President and decided to stop subsidizing European and other foreign countries, providing them with aid and military defense, I can see why some foreigners would prefer that Gore wins. So I take the comments of foreigners with a grain of salt.

Luis

You write with a great deal of good arguments. You should be on politics! :-) Sorry for my bad use of the English-American language. Here in Europe we don't have that usage of speaking P.C. We call the things by their names. And the Portuguese word "Negro" sounds nicer than the other one ("preto") meaning "black". That's why I used that word. What I was referring to was what people described while in line: black persons (is this more p.c.?) being pulled out of line and state militia demanding an impossible number of proofs of identification from the blacks. Those that tried to produce cards of ID were still told to "GO HOME" and get more proof of their identify (this was about 4 p.m). Then, about 5 p.m., these Florida militia police began stopping all cars on the highway that contained black persons on their way to the polls. These cars were held so long that the polls had closed before they could vote. In addition, several blacks were told they were "not registered" and their votes simply thrown in the garbage. I don't known if it is true or not, but it isn't a nice story to tell, is it? And the terrible thing is that it sounds pretty true... I didn't understand why counters stopped the recount long before the legal delay, when GWB was winning, arguing they would never have the time of recounting all the votes... unless they were willing GWB to win. Some hours later, GWB was declared winner in the State of Florida. I can't believe that the Florida Supreme Court is that "Democratic". Last Dec. 5 the Supreme Court in Florida has ruled against Gore, remember? And the clever last decision (recounting Every vote) was taken by the shortest majority of one vote (4 -- 3). The terrible thing is that your Justice is completely biased by politics. At least our Judges seem to be independent from Political Parties.

Now, about foreign politics. That's exactly what we (the foreigners) are afraid of: the narrow-minded isolationists who think that World economy could develop closing the American borders. Subsidizing poor countries always had a counterpart, Mark. It could be a permission to introduce Coca-Cola and McDonalds in China, or making IBM's in Malaysia... America paid Portugal for the use of the Air base in Azores. The other side of the medal is that we suffered much more with the oil embargo (from Arab countries) than any other eastern country, because the Base was used to help the Israeli Army during the war (in the 60's). When it comes to American interests in the outside world, you acted like a falcon... why do you think we are all willing to have your Marines and submarines around? What we really want is to keep the borders open to trade and the minds open to world development. And please, don't think that every body is pro-Gore. It is just a question of fairness. He already got more than 50% of the ballots, and it seems that he should have won in Florida. I hope that your next President -- who ever he is -- wins the election fairly (counting the votes)... and not just in Court.

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