comment: The making of a President is little different than the
making of sausage.
Read the below carefully; and remember it the next time someone mentions
that the U.S.A. is a democracy.
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?
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
Q: Oh. So the justices did not believe that the hand-counts would find
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.
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
A: The Legislature declared that the only legal standard for counting a
vote 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.
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.
Q: So if the Court had adopted new standards, I thought it would have
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 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
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 rather than Gore?
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?
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
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
Q: What does the Congressional
role have to do with the Supreme Court?
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.
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 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?
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
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?
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?
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,
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
Q: Why didn't they excuse
A: If either had excused 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
(December 9 stay stopping the recount), and
(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
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.
Ittakes 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.
"My deeds must be my life.
When I am dead
my actions must speak for
- Stephen Girard
Courtesy of: Larry Parker