COUP WATCH: Supreme Court Stay 7 Steps Outside Normal -- Red Rock Eater News Service COUP WATCH: Supreme Court Stay 7 Steps Outside Normal -- Red Rock Eater News Service

By Phil Agre

Mon Dec 11 06:37:24 2000

Reading the candidates' briefs makes clear just how astonishingly spurious the Supreme Court's stay of the Florida election contest was. It is, by my count, seven giant steps outside of the normal legal standards for such a thing.

Here's the situation in 600 words. The Constitution says that the Florida legislature determines the manner of picking the electors. The manner that the legislature specified includes provisions for an automatic recount and a protest and contest phase. The contest phase is to be run by the courts, who are given very wide latitude.

During the protest phase, Bush argued repeatedly and at length that the proper time for Gore's arguments was the contest phase; when Gore filed his context, the Bush people went berserk. In fact the Florida Supreme Court gave Bush most of what he wanted: they dropped Gore's Nassau and Palm Beach claims and gave Bush a statewide rather than a "selective" recount. Still the Bush people went berserk.

Having been given most of what they asked for, Bush's appeal to the Supreme Court rests on a very narrow foundation: whether telling the counties to judge the ballots based on the intent of the voter is unconstitutional. But that standard -- intent of the voter -- is precisely the standard that the Florida legislature had specified.

So get your mind around this: the Bush people are howling about the Florida court supposedly changing the rules after the election, but in fact what the Bush people are asking the Supreme Court to do is to overturn the Florida legislature's vote-counting standard -- the very one that, by the Constitution, is the Florida legislature's job to set. It is the *Bush* people who are trying to change the rules after the election, and in a way that is the most extreme violation of federalism that could possibly be imagined. (This is on top of the Republican Florida legislature's own attempt to change the rules.) What is more, the standard that they are now trying to overturn -- local control over the precise method of determining voter intent -- is not only normal practice in many states, but has been for hundreds of years. In order for the Supreme Court to give Bush what he wants, they would have to invalidate numerous elections.

And that's just the start. By granting Bush the stay he asked for, the Supreme Court not only explicitly asserted that Bush was likely to prevail in these arguments, but that Bush would suffer irreparable harm from the mere counting of votes, mere hours before the vote- counting would have ended, and furthermore that the harm to Bush -- which is speculative at best and probably nil unless you count the harm that would come from losing the election -- is greater than that to Gore -- which given the constraints of the calendar is absolute.

On top of all that, the Supreme Court has now taken custody of the disputed ballots that had previously been held by the Florida court, and if it really believes in the argument that it provided for granting Bush his stay then it follows that it intends to keep those ballots secret forever, so that the true outcome will never be known.

In fact it's actually much worse than even that -- I've hardly gotten into the issues raised by Justice Stevens' dissent -- but that is plenty enough to make clear what's really going on here: the Supreme Court is overthrowing the government of the United States. And the pundits, in their usual style, are blaming *Gore* for wrecking the country.

Some asides:

1. No matter how weird it gets, don't forget that the Florida Supreme Court can still settle the whole matter and save us a lot of trouble by overturning one or both of the circuit courts that found for the defendants in the Seminole and Martin absentee ballot cases. Granted this is a little less certain after Tuesday, but we'd have to see.

2. For weeks now the Bush and Gore legal teams have been producing large numbers of lengthy and complex legal documents literally overnight, most of them involving uncertain areas of law. There's a book to be written about how they are doing this. Part of the answer involves networked teams of law students organized by constitutional law professors, all of whom are living in hog heaven.

3. Lots of people have been writing to me to say, why don't you write these things for national publications or go on television to say them? I appreciate the sentiment, but I have two answers. One is that I'm not very good at those things. The other is, why don't you? If you like my arguments then you're welcome to use them. After all, 90% of echo-chamber punditry is finding a more hysterical way to say what other pundits have said. The least you can do for your country is get out there and echo something that you think makes sense. A letter to the editor takes a few minutes. Make one point, keep it to 150 words, and it has a decent chance of getting published. An op-ed column takes a couple of hours. Start with a news hook of the day, work toward a bigger point, rewrite all the needless words out of it, and fax it to your regional newspaper's opinion editor with a brief cover letter.

I've broken the enclosed URL's into groups, only the first two of which relate to the election controversy. Thanks to everyone who contributed.

Supreme Court documents

Bush Supreme Court brief
      http://news.findlaw.com/cnn/docs/election2000/uscbushbrf1210.pdf

Gore Supreme Court brief
      http://news.findlaw.com/cnn/docs/election2000/uscgorebrief1210.pdf

Supreme Court order stopping recount
      http://www.cspan.org/campaign2000/Florida/00-949x.pdf

Bush Emergency Application for Stay
      http://frwebgate.access.gpo.gov/supremecourt/emappforstaybushvvore.fdf       http://frwebgate.access.gpo.gov/supremecourt/supp00-a504.fdf

Opposition of Respondent Gore to Stay Application
      http://frwebgate.access.gpo.gov/supremecourt/response00a-504.fdf

other election stuff

Collision with Politics Risks Court's Legal Legitimacy
      http://www.nytimes.com/2000/12/11/politics/11ASSE.html

Undervotes Aren't Only Pending Dispute
      http://www.herald.com/content/today/news/florida/digdocs/092651.htm

Finally, Someone Challenges the Dubya Standard
      http://www.boston.com/dailyglobe2/345/oped/Finally_someone_challenges_the_Dubya_standard+.shtml

The Lynching of the Black Vote
      http://www.boston.com/dailyglobe2/345/oped/The_lynching_of_the_black_vote+.shtml

Black Voters Angered by Hurdles
      http://www.gopbi.com/partners/pbpost/epaper/editions/today/news_2.html

In Order To Preserve Democracy, It Was Necessary To Destroy It
      http://la.indymedia.org/display.php3?article_id=4820

Ghosts in Florida
      http://washingtonpost.com/wp-dyn/articles/A46308-2000Dec8.html

The Day Democracy Was Defeated
      http://www.msnbc.com/news/501078.asp

Famous Racists: Strom Thurmond and William Rehnquist
      http://flag.blackened.net/daver/misc/thurmond.html

Let the Recounts Resume
      http://www.salon.com/politics/feature/2000/12/09/deadline/

No Finality Without Fairness
      http://www.thenation.com/doc.mhtml?i=special&s=shapiro20001209