The
Gore Exception:
How an Illogical, Inconsistent Supreme Court Opinion of Five
Justices
Anointed Bush as President of the United States
by Mark Levine, Esq.
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: 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 control 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, as the
problem of equal protection in election processes generally presents many
complexities.?
Q: What complexities?
A: They didn'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. 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 the "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 adopted 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 if they would end up with a possible Gore victory.
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 punch card 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 (100 to 300 votes) 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, even though
a single judge was overseeing the entire process to resolve any
disputes.
Q: Hmmm. Well, at least if those .005% of 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: I thought
the Supreme Court said that the Constitution was more important than
speed.
A: It did. It said, "The press of time does not diminish the
constitutional concern. A desire for speed is not a general excuse for ignoring
equal protection guarantees."
Q: Well that makes sense. So there's time
to count the votes when the intent is clear and everyone is treated equally
then. Right?
A: No. The Supreme Court won't allow it.
Q: But they
just said that the constitution is more important than time!
A: You
forget. There is the "Gore exception."
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, 2001 is the deadline. In the Election
of 1960, Hawaii's votes weren't counted until January 4, 1961.
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! An
intelligent, rational solution to a difficult problem! The US Supreme Court
rejected it. (The Gore exception) 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 didn'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 afterward?
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, are Florida's
election laws unconstitutional?
A: Yes, according to the Supreme
Court.
Q: And the laws of 50 states that allow votes to be cast or
counted differently are unconstitutional?
A: Yes, according to the logic
of the Supreme Court opinion. And 33 states have the same "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. But 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 (Bush) who won the all important 5-4
Supreme Court vote, which trumps America's choice.
Q: I thought in a
democracy, the guy with the most votes wins.
A: True, in a democracy. But
America in 2000 is no longer 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 and the
will of the people.
Q: What do I do now?
A: Email this to everyone
you know, and write or call your Senator, reminding him or her 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 APPOINTED BY A
NON-DEMOCRATICALLY ELECTED PRESIDENT until 2004 when a president is finally
chosen by the American people, instead of Antonin Scalia.
Mark H.
Levine
Attorney at Law
MarkLevineEsq@aol.com
P.S.
Q: Isn't
anyone on the US Supreme Court a rational follower of the rule of law?
A:
Yes. Read the four dissents. Excerpts below:
Justice John Paul Stevens
(Republican appointed by Ford):
"Although we may never know with
complete certainty the identity of the winner of this year's
Presidential
election, the identity of the loser is perfectly clear. It is the Nation's
confidence in
the judge as an impartial guardian of the rule of
law."
Justice David Souter (Republican appointed by
Bush):
"Before this Court stayed the effort to [manually recount the
ballots] the courts of Florida were
ready to do their best to get that job
done. There is no justification for denying the State the
opportunity to try
to count all the disputed ballots now.
Justice Ruth Bader Ginsburg
(Democrat appointed by Clinton):
Chief Justice Rehnquist would
"disrupt" Florida's "republican regime." [In other
words,
democracy in Florida is imperiled.] The court should not let its
"untested prophecy" that counting
votes is "impractical"
"decide the presidency of the United States."
Justice Steven Breyer
(Democrat appointed by Clinton):
"There is no justification for the
majority's remedy . . . " We "risk a self-inflicted wound -- a
wound that may
harm not just the court, but the nation."
(end of article by Mark Levine, Esq.)