I first saw this "letter" in mid December. I thought silly then and still do. I remember seeing response posts like “powerful” , “compelling” etc. Well anybody who believes the original “conversation” is a complete moron.
Never the less I have been asked 3 times to respond to it. So I will. I will demonstrate the complete lack honesty indeed prove outright lies of the author. And as a bonus, I will expose some of the trickery the author attempts to employ.
Warning: Long post follows .......
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.
The ruling says that the Florida Supreme court violated the constitutions equal protection clause with their recount procedure. Additionally it says that if the recount were to continue it would violate the intent of Florida Legislature’s intent to complete the election by Safe Harbor day (3USC).
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Q: So Bush wins because hand-counts are illegal?
A: Oh no. Six of the nine justices believed that hand-counts were legal and should count. Indeed, all nine found "Florida's basic command for the count of legally cast votes is to consider 'theintent of the voter.'" "This is unobjectionable as an abstract proposition." In fact, "uniform rules to determine intent" are not only "practicable" but "necessary."
Lie number 1.
This is deliberate and selective editing of the ruling. It leaves out the sentence in between, which changes the entire meaning. Here is what it really says regarding intent of the voter:
“This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary. (emphasis added)
news.findlaw.com (US Supreme Court decision p. 7)
It is the lack of these uniform rules that cause the problem. This answer demonstrates the author’s dishonesty with perfect clarity.
More over the issue is not if hand counts are legal or not.
The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate. (per curiam)
The majority found that the Florida Supreme Court did not. Additionally in the dissent of Justice Souter (Breyer joining), also found the recount procedures to be unconstitutional.
Where the number six comes from is anybody’s guess.
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Q: So that's a complicated way of saying "divining the intent of the
voter" is perfectly legal?
A: Yes.
No. Divining the intent, was the problem. No assurance of fundamental fairness was made in the remedy crafted by the Florida Supreme Court. They were derelict in their duty in that regard.
The search for intent can be confined by specific rules designed to ensure uniform treatment. The want of those rules here has led to unequal evaluation of ballots in various respects. (per curiam)
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Q: Well, if hand counts are fine, why were they stopped? Have the re-counts have already tabulated all the legal ballots?
A: No. 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 will never be.
The hand counts were stopped, because there was not enough time to complete them, with judicial review, within the safe harbor time frame set by US Code (3USC), which was the intent of the Florida legislature. Additionally, they said that votes that are not read by the machine can be read by hand, but you should examine both under and over votes, and that you should examine them with uniform standards.
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Q: 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.
The states rights issue is not the primary concern in this case. The individual voters rights, is what the Supreme Court was primarily concerned with. With respect to states rights, I agree with the another respondent to this “opinion” “The US Supreme Court was deferential to state law, which was passed by the Florida Legislature. It was not deferential to the Florida State Supreme Court.”
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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."
There was no ruling in this case as to states rights. The question was “did the Florida Supreme Court violate the constitution. Yes. Also, the “Gore exception” is a myth. “Present circumstances” does not mean only this case. It is silly to suggest that this case does not set precedent. That is pure demolib spin.
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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 this failure of the Florida Court to change the rules after the election was wrong.
Q: Huh?
A: The is " Legislature declared that the only legal standard for counting vote clear intent of the voter." The Florida Court was condemned for not adopting a clearer standard after the election.
No such declaration was ever made by the legislature. Here is what Florida law states:
“Section 101.5614(5), Florida Statutes (2000), provides that "[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.” Section 101.5614(6) provides, conversely, that any vote in which the board cannot discern the intent of the voter must be discarded.
news.findlaw.com (p. 23).
That’s lie number 2.
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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 Florida Court had adopted new standards, I thought it would have been overturned.
A: Right. You're catching on.
Wrong, the Florida Supreme court failed to provide reasonable safeguards to ensure all votes are treated equally. They could have done many things, to further define the standard, within the ‘intent of the voter’. This would not have changed state law.
The search for intent can be confined by specific rules designed to
ensure uniform treatment.
The want of those rules here has led to unequal evaluation of
ballots in various respects.
news.findlaw.com (US Supreme Court decision p. 7)
Anything within the intent of the voter would have been OK. As proof I note the "Palm Beach" standard.
This standard was litigated. Judge Terry Lewis ruled that the ‘Palm Beach’ Standard was valid and fell within the bounds of intent of the voter. The Gore team appealed this ruling all the way to the Florida Supreme court, who refused to hear that case.
This is an important point. It means that the Florida courts had before them a standard, which was then and can now be used as legal precedent.
Given that the Palm Beach standard was litigated, one is forced to wonder why the Florida Supreme Court did not incorporate that into a remedy. Clearly, if you read Judge Well’s dissent in the case, the court is aware that there is a constitutional question arising.
But notice what the author is doing here. They establish a lie as truth and then build on that to further an argument, hoping you don’t notice the baseline lie.
Q: Wait. If the Florida Court had adopted new standards, it would have been overturned for changing the rules. And since it didn't do it, it's being overturned for not changing the rules? That makes no sense. 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.
Wrong. Had the Florida Supreme Court, taken measures to ensure a fair recount, and not delayed the original deadline, the U.S. Supreme court would definitely have not heard the case. In this case, there is un-refuted testimony, that ballots, with the same characteristics, were treated differently. The Florida Supreme Court allowed these votes to stand without review and provided no assurance that additional manual recounts would not do the same.
A lot of what if’s here though. Courts deal with what is in the courtroom, not what might have been.
Building on a lie here, that the author attempted to establish before hand.
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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-leaning votes are thrown in the trash can.
Absolutley wrong. The different machines did not create the problem. The unequal procedures for the manual recount, is what violated the equal protection clause. The assertion that different machines create a constitutional problem is false because ballots properly marked by the voter and properly read by the machines are treated equally, regardless of what machine is used. It is only in ballots not read by the machine that cause a problem and what is at issue.
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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-leaning ballots (about 170,000) thrown in the trashcan in Florida. That "complexity" was not a problem.
First off, the court was worried about all the ballots. In fact, one of the problems it had with the Florida Supreme Court decision was that, it only remedied the 60,000 under votes and ignored the 110,000 over votes.
Second, This issue was never brought before the Court. However the Justices clearly considered it:
The question before the Court is not whether local enti-ties,
in the exercise of their expertise, may develop differ-ent
systems for implementing elections. Instead, we are
presented with a situation where a state court with the
power to assure uniformity has ordered a statewide re-count
with minimal procedural safeguards. When a court
orders a statewide remedy, there must be at least some
assurance that the rudimentary requirements of equal
treatment and fundamental fairness are satisfied.
Justice Souter addressed it most directly:
“It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters'intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads.”
news.findlaw.com (US Supreme Court decision per curiam, p. 11, Souter dissent p. 6)
And third, (repeat) The assertion that different machines create a constitutional problem is false because ballots properly marked by the voter and properly read by the machines are treated equally, regardless of what machine is used.
The only issue, is what do you do with the ballots not recorded by the machine.
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Q: Was it the butterfly ballots that violated Florida law and fooled more than 10,000 Democrats into voting for Buchanan or both Gore and Buchanan?
A: Nope. The courts have 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.
This was not before the US Supreme Court. It was the Florida Supreme Court who ruled that the butterfly ballot was legal.
The answer here demonstrates the complete lack of honesty, and deliberate deception that is this ‘conversation’ is employing.
Additionally it assumes a pattern in the overvotes. The pattern of the overvotes has only been speculated upon.
The name calling just demonstrates the weakness of their argument.
Lies 3 & 4.
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Q: Yikes. So what was the serious equal protection problem?
A: The problem was neither the butterfly ballot nor the 170,000 or 3% of Democratic-leaning voters (largely African-Americans) disenfranchised. The problem is that somewhat less than 0.01% of the ballots (less than 600 votes) may have been determined under ever-so- slightly different standards by judges and county officials recording votes under strict public scrutiny, as Americans have done for more than 200 years. The single judge overseeing the entire process might miss a vote or two.
First, it does not matter if it is 1, 1000, or a 100,000 ballots. The constitution protects the individual.
Second, ‘ever-so-slightly ‘ characterization is way off base. This case has un-controverted testimony, that ballots of similar characteristics were treated differently. This is not a question of degree, when a ballot goes completely to one candidate or the other. It is ones and zeros.
Third, the problem with equal protection is not only that the Florida Supreme Court allowed ballots that were evaluated unequally to be accepted into the totals, but that the additional votes being counted, would have the same problem. In other words, the Florida Supreme Court failed to meet it’s obligation of providing fundamental fairness.
Also note the race baiting that the author is employing. 15 yard penalty on that one. Again, the argument is weak, so other measures are needed.
Q: A single judge? I thought the standards were different. I thought that was the whole point of the Supreme Court opinion.
A: Judge Terry Lewis, who received the case upon remand from the Florida Supreme Court, had already ordered each of the counties to fax him their standards so he could be sure they were uniform. Republican activists repeatedly sent junk faxes to Lewis in order to prevent counties from submitting the standards to Lewis in a way that could justify the vote counting. That succeeded in stalling the process until Justice Scalia could stop the count.
The answer is a complete lie. Judge Lewis never ordered that. What he did ask the counties to do, was to fax the procedures (Protocol) that the counties would use, when counting the ballots. This was ordered, because when Miami-Dade separated the undervotes from the rest of the ballots, the total votes for the candidates changed, thus creating the situation where some ballots were included in the vote total twice. Judge Lewis in his order specifically did address the standard to be used, which was that which the Florida Supreme Court ordered originally, “intent of the voter”. Which we know is too vague to ensure ballots are treated equally.
video.c-span.org:8080/ramgen/idrive/c2k120800_process1.rm (This is a RealPlayer video of Judge Lewis’s order)
Furthermore, the process was never stalled at all, counties began counting the next day. Judge Lewis’s court ended around midnight, counties began counting at 8:00 am the next day.
Additionally, I have never seen any report that implicated one party or another for flooding Judge Lewis fax line. He (foolishly) gave his fax number during the broadcast of the hearing, while 20 million people where watching. Given the dishonesty this “lawyer” has displayed so far, it is a safe bet he/she made it up.
Lies 5,6 &7
Q: Hmmm. Well, even if those less than 600 difficult-to-tell votes are thrown out, you can still count the other 170,000 votes (or just the 60,000 of them that were never counted) where everyone, even Republicans, agrees the voter's intent is clear, right?
A: Nope.
Q: Why not?
A: No time.
Q: I thought the Supreme Court said 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."
This is exemplifies the dishonesty of the author again. The quote about the time constraints, is taken out of context, in such a what that it is the exact opposite of the intent. That particular passage, is a criticism of the Florida Supreme Court, who put time constraints over constitutional concerns. Here is what was really said:
That brings the analysis to yet a further equal protec-tion
problem. The votes certified by the court included a
partial total from one county, Miami-Dade. The Florida
Supreme Court’ s decision thus gives no assurance that the
recounts included in a final certification must be complete.
Indeed, it is respondent’ s submission that it would be
consistent with the rules of the recount procedures to
include whatever partial counts are done by the time of
final certification, and we interpret the Florida Supreme
Court’ s decision to permit this. See ____ So. 2d, at ____,
n. 21 (slip op., at 37, n. 21) (noting “practical difficulties”
may control outcome of election, but certifying partial
Miami-Dade total nonetheless). This accommodation no
doubt results from the truncated contest period estab-lished
by the Florida Supreme Court in Bush I, at re-spondents’
own urging. The press of time does not dimin-ish
the constitutional concern. A desire for speed is not a
general excuse for ignoring equal protection guarantees.
news.findlaw.com (US Supreme Court Decision per curiam p. 10)
Lie number 8.
continued ...
Message 15257146 |
