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Sunday, Feb. 04, 2001 at 11:48 AM
Published originally in the Orlando Weekly during the week of Christmas. Please distribute widely.
THE "GORE EXCEPTION":
A Layman's Guide to the United States 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?
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?
Q: Well, if hand counts are fine, why were they stopped? Have the re-counts 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.
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.
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.
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 percent of the votes. Some, like the punch card systems in largely Democratic-leaning counties, record only 97 percent of the votes. So approximately 3 percent 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 Buchanan's view that Hitler was not all that bad.
Q: Yikes. So what was the serious equal protection problem?
A: The problem was neither the butterfly ballot nor the 170,000 or 3 percent of Democratic-leaning voters (largely African-Americans) disenfranchised. The problem is that somewhat less than 0.01 percent 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?
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.
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?
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?
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: 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?
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 to choose itself who will be President and has picked Bush to win by a vote of 5 to 4, based on the flawed count it 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:
(December 9 stay stopping the recount)
(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 to ensure 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 will end
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