- 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 againstjudicial
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:
-
- http://frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf
(December 9 stay stopping the recount)
-
- http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf
(December 12 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 ustices 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 MarkLevineEsq@aol.com
-
-
- Comment
-
- From Jay
12-17-00
-
- The Supreme Court analysis posted to Rense's sight is
sheer rubbish. The State Supreme Court played politics and got thier ears
boxed by the Supremes. "Clear intent of the voter" does not include
dimpled, pregnant or marked chads. Under that premise, you basically have
a contrived vote hunt controlled by Democrats. Each voter received clear
instructions on how to vote and what to do if for ANY reason they felt
their vote was not registered correctly. Stop making excuses for people
who were either too lazy or too dumb to check what they did. I know democrats
prefer their voters be docile and easily lead, but I am surprised you went
for the bait. BTW, the amount of "non votes" for Florida was
extremely close to the average nation wide.
-
- PS: I am an Independent who voted for Gore. I checked
my vote before I left the booth. Most of those old farts in Florida were
probably looking for Jefferson on the ballot.
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