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Obviously a lot has been said, and will continue to be said, about the presidential "election" of 2000.
What follows is an analysis of the endgame, provided through the Red Rock Eaters newservice.
This commentary was originally written by Mark Levine, an attorney living in Southern California.
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. 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. . . . Q: Doesn't anyone on the US Supreme Court follow 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." |
Date: Tue, 19 Dec 2000 09:24:18 -0800
From: Phil Agre <pagre@alpha.oac.ucla.edu>
To: "Red Rock Eater News Service" <rre@lists.gseis.ucla.edu>
Subject: [RRE]Supreme Court decision
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Date: Tue, 19 Dec 2000 06:35:46 EST
From: MarkLevineEsq@AOL.COM
To: undisclosed-recipients: ;
Subject: Fwd: Q&A on Bush v. Gore
Dear all,
Thanks for writing me. I apologize for responding in a bulk email,
but I have gotten over 3000 emails since I first wrote "The Gore
Exception" from all 50 states and a number of foreign countries.
Although I used to respond to every email individually, I can no
longer do so.
You see, I have a law practice to attend to. (Yes, I exist. Yes,
I'm a practicing lawyer in Los Angeles. I graduated Yale Law School
in 1992, and I am a member of the Calfornia Bar. My practice consists
entirely of litigation, with a strong appellate practice.)
As AOL allows me to send out only 50 names or so at a time, I have
only responded to those of you who question my existence or have asked
for a clean, ungarbled copy of the "Layman's Guide" which I provide
below.
All of the facts in my Q&A are well-documented, either in the US
Supreme Court opinion, Federal Law (3 USC Sec. 5), former Supreme
Court case-law, the Florida Supreme Court and the Florida courts
below, or, occasionally, press accounts.
To those of you who wonder why what you are about to read (again) is
not exactly what Michael Moore has put on his website, the answer is
simple. I revised it. Moore received my first draft, written on the
morning of December 13, that I sent to about 15-20 family and friends.
I never dreamed of the massive response this little Q&A has gotten.
Indeed, I never sent it to Moore. He got it, liked it, and put it on
his website.
The problem with the original draft, like all first drafts, is that it
had a few typos in it. I trust you find this updated version (which
is not that different from the first, though I added some quotes from
the dissents) to be complete and typo-free with just a few more Qs and
As added or language modified to be as clear and accurate as possible.
If you are to forward or post a version, please use THIS version and
discard the old one.
Some of you have asked me questions or raised techincal ponts about
the old version. Virtually all your questions are answered in this
updated version.
Many of you have asked what you can do. You can call your Democratic
Senators, as I advise in the Q&A. If you live in a state with two
Republican Senators or in the disenfranchised District of Columbia,
I suggest calling Minority Leader Tom Daschle, Judicary Chair Patrick
Leahy [actually Ranking (Democrat) Member], Ted Kennedy, and Paul
Wellstone.
While there are humorous aspects to the Q&A, it is indeed serious.
The illogical opinion of the Supreme Court, one of the worst and
ill-reasoned opinions in US history is, unfortunately, no joke.
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THE "GORE EXCEPTION":
A Layman's Guide to
the Supreme Court Decision
in Bush v. Gore
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 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 'the
intent of the voter.'" "This is unobjectionable as an abstract
proposition." In fact, "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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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 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."
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.
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.
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 conceding 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, 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.
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.
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.
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 vote
and count votes, and 33 states have the same "clear intent of the
voter" standard that the US Supreme Court found illegal in Florida.
Q: Then why aren't the results of these 33 states thrown out?
A: 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.
Q: 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
http://www.herald.com/thispage.htm?content/archive/news/elect2000/decision/104268.htm
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.
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:
http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf
(December 9 stay stopping the recount)
http://frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf
(December 12 opinion)
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.
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.
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.
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.
Q: Doesn't anyone on the US Supreme Court follow 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."
Mark H. Levine
Attorney at Law
MarkLevineEsq@aol.com
TO REACH YOUR SENATORS:
GO TO http://www.senate.gov OR CALL 202-224-3121.
If you live in a state with two Republican Senators (or the
disenfranchised District of Columbia with no Senators), I suggest
you call these four Democrats: Minority Leader Tom Daschle, Judiciary
Chair Patrick Leahy, Senator Ted Kennedy, and Senator Paul Wellstone.
Postscript
Q: So two last Questions. How did this Q&A get passed around so much?
A: It certainly surprised me. I originally sent it to 15 or 20
people. I think it struck a chord among Americans who saw the
media celebrate while their right to vote was swept under the rug,
Americans who were concerned the Supreme Court had acted in an
overtly political manner but weren't sure because the decision was
couched in legalese, and Americans who wanted to fight back but
didn't know how.
Q: And who the heck are you anyway?
A: I'm a practicing lawyer in Los Angeles and a graduate of Yale Law
School. On Elections Day, I helped voters who were turned away at
the polls go back and legally vote.
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