Dear All:
A tad long and bit partisan (I don’t agree with
his suggested solution), but the best analysis I have
seen. Mr. Levine appears to have read all the
opinions (in sharp distinction to most of the idiots
who have commented on TV) and know something about
constitutional law.
-- Chris Peeples --
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 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 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 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: (December 9 stay
stopping the recount), and (December 12 final opinion)
[Somehow the urls did not come through. Both can
be found through the CNN.com site - HECP.]
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
. -- MarkLevineEsq@aol.com |
