TLC asked me to take a look at this argument - and here is my response:
TLC - a quick response to the "Gore Exception" piece you linked to me yesterday:
~~~~~~~~
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.
TLC - this is the real thrust of the argument - that Gore won the popular vote - but this is irrelevant because Bush won more votes in the Electoral College.
~~~~~~~~
Q: So Bush wins because hand-counts are illegal?
A: Oh no. Six of the nine justices believed that hand-counts werelegal 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."
Slick - the real point of the opinion is stated but glossed over in the hope that the reader will miss it - "uniform rules to determine intent" are not only "practicable" but "necessary."
~~~~~~~~
Q: So that's a complicated way of saying "divining the intent of the
voter" is perfectly legal?
A: Yes.
Bullshit, pure and simple. Divining the intent of the voter is EXACTLY what is not legal.
~~~~~~~~
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.
Bullshit again. A vote which is improperly case isn't a LEGAL vote. The voter has to comply with the rules and the rules are clearly stated. Punch the chad all the way through. So simple a child can comprehend it, but apparently not a Democrat.
~~~~~~~~
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.
Silly argument. 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. Which body of the government writes the laws? The legislature? Bingo.
~~~~~~~~
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."
Just silliness. Of course the case has precedential value - but every case presents new facts and has to be determined on its own merits.
~~~~~~~~
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 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 after the election.
This is a mis-statement of fact and law. The term "clear intent of the voter" is not a term used by the Florida Legislature. That's a term the Florida Supreme Court used. The Florida Supreme Court never defined what that means - and we all saw what happened in Broward County, where dimpled chads were counted as votes. This has never been the standard in Florida - it was adopted solely by Democrats in THIS ELECTION for the very first time in Florida history, at the demand of Gore, in order to give more votes to Gore.
The US Supreme Court held this was unconstitutional because there were no objective standards - the standards applied varied from individual to individual.
~~~~~~~~
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.
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.
We will never know what the United States Supreme Court would have done if the Florida recount was conducted with adequate statewide standards for determining what is a legal vote. I surmise that the US Supreme Court would have upheld this. Too bad for Gore that he didn't try this - he probably wishes that he did, now.
~~~~~~~~
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.
The fact that different voting machines are used in different counties was never an issue in this case. The difference from county to county in the type of voting machine used was never challenged by Gore or by any Florida voter.
~~~~~~~~
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.
This issue was never brought before the Court. The party who should have raised the issue is Gore or a Florida voter. Courts don't rule on matters that the parties don't litigate.
~~~~~~~~
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.
Cute. It was the FLORIDA Supreme Court who ruled that the butterfly ballot was constitutional, but this was never an issue in Bush v. Gore, it was in another case, not brought by Gore.
~~~~~~~~
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.
This part is really funny. The difference in the votes for Bush and Gore in Florida was less than 600 votes - so 600 votes were enough to change the vote in Florida and thereby the nation. The writer acts like 600 votes were trivial, when in fact they were crucial. And the standards were NOT "ever so slightly different" - that's exactly wrong - the difference was between counting dimpled chads and not counting dimpled chads.
~~~~~~~~
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.
Justice Scalia stopped the vote? Four Supreme Court justices voted for the injunction, five voted to stop the count for good.
Junk faxes? What does that have to do with Judge Lewis not directing standards? Anyone who was watching CNN knows that the counties started counting WITHOUT standards from Judge Lewis - that's why the US Supreme Court granted the injunction.
~~~~~~~~
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."
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 speed!
A: You forget. There is the "Gore exception."
Q: Hold on. No time to count legal votes where everyone, even Republicans, agrees the intent is clear? Why not?
A: Because they issued the opinion at 10 p.m. on December 12.
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. In fact, as of December 13, 2000, some 20 states still hadn't turned in their results.
Q: But I thought ---
A: The Florida Supreme Court had said earlier 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 reversing it and forcing the Florida court to abide by a deadline that everyone agrees is not binding.
The statutory deadline, set by Congress, for the Electoral College to vote in the 2000 Presidential Election was December 18, 2000. The statutory deadline, set by Congress, for the Florida Electors to be certified was December 12, 2000. As of December 12, 2000, Florida had certified the Republican Electors. If the recount procedure was completed before December 18, 2000, and Gore had more votes, then there would have been TWO panels of Electors, one Republican, one Democrat, because the matter would not have been final - either party would have had the legal right to challenge the results again, in another case of Bush v. Gore. The only way around the December 12, 2000 deadline would be for BOTH the Republican Electors and the Democrat Electors to vote and let Congress decide the election, when the new Congress convened on January 6, 2001. After being sworn in this would have been their first order of business, and according to the Constitution, they couldn't do anything else until this was finally decided.
If that had happened, the House would have voted for the Republicans, but the evenly split Senate would have voted 50-50 for Bush and Gore, and had Gore act as the tie-breaker, so he would have voted for himself. The two bodies of the legislature would have remained split, and there would not have been a President on January 20, 2000, when Gore left office. After Gore left office, the Senate would still have been split 50-50. In theory, we might not have had a President until 2005.
Does anyone think the Republicans would have compromised on Gore? Or that the Democrats would have compromised on Bush?
~~~~~~~~
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.
Wrong. The recount could not go forward without standards - it was unconstitutional.
~~~~~~~~
Q: Why?
A: Justice Scalia said some of the votes may not be legally counted.
Q: So why not separate the votes into piles -- hanging chads for Gore, indentations for Bush, votes that everyone agrees were intended for Gore or Bush -- 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? Make sense?
A: Great idea! An intelligent, rational solution to a difficult problem! The US Supreme Court rejected it. They held in stopping the count on December 9 that such counts would be likely to produce election results showing Gore won and that Gore's winning the count would cause "public acceptance" that would "cast[] a cloud" over Bush's "legitimacy" and thereby harm "democratic stability."
Who knows what would have happened if this was the way things were done? But it wasn't.
~~~~~~~~
Q: In other words, if America knows the truth that Gore won, they won't accept the US Supreme Court making Bush President?
A: Yes.
Would Gore have won in the recount? The results are in from Miami-Dade in a recount by the Miami-Herald, and Bush won by six votes! So if the recount as requested by Gore had continued, Bush would have still won.
~~~~~~~~
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 is the first time a court has ever refused to count votes in order to protect one candidate's "legitimacy" over another's.
Let's just say that in all of American history and all of American law, this is the first time a Presidential candidate has ever demanded a selective recount of dimpled chads in only Democrat counties.
~~~~~~~~
Q: Aren't these conservative justices against judicial activism?
A: Yes, when liberal judges are perceived to have done it.
Adhering to the rule of law isn't judicial activism. Making new rules in the middle of the game, e.g., counting dimpled chads for the first time in Florida history, is judicial activism.
~~~~~~~~
Q: Well, if the December 12 deadline is not binding, why not count the votes afterward?
A: The US Supreme Court, after conceding the December 12 deadline is not binding, set December 12 as a binding deadline at 10 p.m. on December 12.
Is there anyone who really believes that if Gore had lost the recount he would have stopped there? Would the recount ever have been over unless Gore won? When the Congress had to decide, as it would have if the Electors were not certified by December 12, 2000, would Gore's supporters in the Senate have ever agreed to a Bush presidency? And if not, what then?
~~~~~~~~
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.
The deadline set by the Florida Supreme Court was CONTRARY to Florida law. The deadline adhered to by the US Supreme Court was set by Congress, pursuant to the Constitution.
~~~~~~~~
Q: So who caused Florida to miss the December 12 deadline?
A: The Bush lawyers who, before Gore filed a single lawsuit, went to court to stop the recount. The rent-a-mob in Miami that got free Florida vacations for intimidating officials. The constant request for delay by Bush lawyers in Florida courts. And, primarily, the US Supreme Court, which refused to consider Bush's equal protection claim on November 22, 2000, then stopped the recount entirely on December 9, and then, on December 12 at 10 p.m., suddenly accepted the equal protection claim they had rejected three weeks earlier, but complained there was no time left to count the votes in the two hours left before midnight that evening.
In fact, Gore shot himself in the foot by demanding a selective recount, and demanding that dimpled chads be counted. If Gore had asked for a statewide recount using an objective standard in the beginning, there would have been plenty of time to complete the task.
~~~~~~~~
Q: So who is punished for this behavior?
A: Gore. And the 50 million plus Americans that voted for him, some 540,000 more than voted for Bush.
Again with the popular vote argument.
~~~~~~~~
Q: You're telling me Florida election laws and precedents existing for a hundred years are now suddenly unconstitutional?
A: Yes. According to the Supreme Court, the Legislature drafted the law in such a messy way that the Florida votes can never be fairly counted. Since Secretary of State Katherine Harris never got around to setting more definitive standards for a counting votes, Gore loses the election.
Hee hee. So why didn't Gore ask Secretary Harris to set more definitive standards for counting votes way back in November? I think we all know the answer to this one.
~~~~~~~~
Q: Does this mean the election laws of any of the other 49 states are unconstitutional as well?
A: Yes, if one logically applies the Supreme Court opinion. The voters of all 50 states use different systems and standards to voteand count votes, and 33 states have the same "clear intent of the voter" standard that the US Supreme Court found illegal in Florida.
Oh, really? Where are the lawsuits alleging this? Could it be that . . . . there aren't any?
~~~~~~~~
Q: Then why aren't the results of these 33 states thrown out?
A: A: Um. Because... um... the Supreme Court doesn't say...
How about because nobody raised this issue so it isn't before any court, anywhere, anytime?
~~~~~~~~
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.
Oh, hogwash. The only unconstitutional votes are the ones that the Florida Supreme Court added AFTER Sec. Harris and Jeb Bush certified the election - and they aren't enough to change the election.
~~~~~~~~
But then what makes Bush President?
A: Good question. A careful statistical analysis by the Miami Herald extrapolates from the 170,000 uncounted votes in Florida to show Gore clearly won the state and may have done so by as much as 23,000 votes (excluding the butterfly ballot errors). See herald.com. 04268.htm
First, newspapers don't decide elections. Second, elections aren't decided by statistics. Third, when the Miami Herald finally looked at the Miami Dade votes, Bush got six more votes than Gore did, which demonstrates the flaw in using statistics to bolster arguments.
miamiherald.com
~~~~~~~~
Q: So, answer my question: what makes Bush President?
A: Since there was no time left for a re-count based on the non- binding "deadline," the Supreme Court decided not to count the votes that favor Gore. Instead, by a vote of 5 to 4, they picked Bush the winner, based on the flawed count they'd just determined to be unconstitutional.
Actually the US Supreme Court reversed the Florida Supreme Court's order of a statewide recount without any objective standards, and halted the recount, which meant that the Electors which were certified by Sec. Harris and Jeb Bush were the legal Electors.
~~~~~~~~
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 at law firms working for Bush. Thomas's wife is collecting applications for people who want to work in the Bush administration.
Q: Why didn't they remove themselves from the case?
A: If either had recused himself, the vote would have been 4-4, the Florida Supreme Court decision allowing recounts would have been affirmed, and Scalia said he feared that would mean Gore winning the election. Justices Rehnquist and O'Connor had both said before the election that they wanted to retire but would only do so if a Republican were elected, and when O'Connor heard from early (and, we now know, accurate) exit polls that Gore had won Florida, she responded that was "terrible."
Q: I can't believe the justices acted in such a blatantly political way.
A: Read the opinions for yourself:
supremecourtus.gov (December 9 stay stopping the recount)
frwebgate.access.gpo.gov (December 12 opinion)
People who lose in court always think the judges are biased. Gore's lawyers had the opportunity to ask the Justices to recuse themselves, but didn't. The employment of Scalia's son and Thomas' wife were well-known in the Washington political community and the Washington legal community before the argument - so why wasn't the issue raised before the argument? Probably because Gore's lawyers didn't think that Scalia would change his vote to help his son - he was going to rule against Gore no matter what - same thing for Thomas - he wasn't going to change his vote to help his wife. Do Justices vote according to their political ideology? Yes - they are political appointees - their political views shape their world views, and affect their votes.
Everyone who practices before the Supreme Court knows that the justices have different ways of looking at the law. If Gore's lawyers had their wits about them, they would have crafted their arguments so as to win before the US Supreme Court, rather than the Florida Supreme Court - but didn't. The blunders were colossal.
~~~~~~~~
Q: So what are the consequences of this?
A: The guy who got the most votes in the US, in Florida, and under our Constitution (Al Gore) will lose to America's second choice (George W. Bush), since Bush has won the all-important 5-4 Supreme Court vote, which trumps America's choice.
Again with the popular vote argument. And again with the argument that Gore "really" got more votes in Florida. It may well be true that Gore got more dimpled chads - but Bush voters know how to vote, and it appears that Gore voters don't.
~~~~~~~~
Q: I thought in a democracy, the guy with the most votes wins. At least in the Electoral College, shouldn't the guy with the most votes in Florida win?
A: Yes. But America in 2000 is no longer a democracy, or even a republic. In America in 2000, the guy with the most US Supreme Court votes wins. That's why we don't need to count the People's votes in Florida.
Which "people's votes" weren't counted in Florida? The people who couldn't, or didn't, punch through an IBM punch card using a stylus that requires an almost infinitesimal amount of force to punch the card. Every legal vote was counted, and recounted.
~~~~~~~~
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, thus ensuring 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 Supreme Court 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 may end, and one day we can hope to return to the rule of law and the will of the People.
Judicial reign of terror? LOL!
~~~~~~~~
Q: Why can't we impeach the justices?
A: That takes a majority of the House and 2/3 of the Senate and is far more controversial. Don't worry. A 4-year judicial filibuster will definitely get the Court's attention. Indeed, it is probably the only legal and practical way to get the Court's attention.
Q: What can I do to help?
A: Email this article to everyone you know, and write or call your Senator, reminding him or her that Gore beat Bush by more than 540,000 (almost five times Kennedy's margin over Nixon) and that you believe that elections should be determined by counting the People's votes, not the Supreme Court's. Therefore, to stop our unelected federal judiciary from ever again overturning the will of the people, you ask your Senators to confirm NO NEW FEDERAL JUDGES APPOINTED BY A NON-DEMOCRATICALLY ELECTED PRESIDENT until 2004
when a president can be finally chosen by the American people, instead of Antonin Scalia.
Again with the popular vote argument. Or, as President Reagan said, "There you go again."
~~~~~~~~ |
