COUP WATCH: Supreme Court Stay 7 Steps Outside Normal -- Red Rock Eater News Service\r\n \r\n\r\n\r\n\r\nCOUP WATCH: Supreme Court Stay 7 Steps Outside Normal -- Red Rock Eater News Service<\/b><\/p>
\r\n\r\n\r\nBy Phil Agre<\/b><\/p>
\r\n\r\nMon Dec 11 06:37:24 2000<\/p>
\r\n\r\nReading the candidates' briefs makes clear just how astonishingly\r\nspurious the Supreme Court's stay of the Florida election contest\r\nwas. It is, by my count, seven giant steps outside of the normal\r\nlegal standards for such a thing.<\/p>
\r\n\r\nHere's the situation in 600 words. The Constitution says that the\r\nFlorida legislature determines the manner of picking the electors.\r\nThe manner that the legislature specified includes provisions for\r\nan automatic recount and a protest and contest phase. The contest\r\nphase is to be run by the courts, who are given very wide latitude.<\/p>
\r\n\r\nDuring the protest phase, Bush argued repeatedly and at length that\r\nthe proper time for Gore's arguments was the contest phase; when\r\nGore filed his context, the Bush people went berserk. In fact the\r\nFlorida Supreme Court gave Bush most of what he wanted: they dropped\r\nGore's Nassau and Palm Beach claims and gave Bush a statewide rather\r\nthan a \"selective\" recount. Still the Bush people went berserk.<\/p>
\r\n\r\nHaving been given most of what they asked for, Bush's appeal to the\r\nSupreme Court rests on a very narrow foundation: whether telling\r\nthe counties to judge the ballots based on the intent of the voter\r\nis unconstitutional. But that standard -- intent of the voter --\r\nis precisely the standard that the Florida legislature had specified.<\/p>
\r\n\r\nSo get your mind around this: the Bush people are howling about the\r\nFlorida court supposedly changing the rules after the election, but\r\nin fact what the Bush people are asking the Supreme Court to do is\r\nto overturn the Florida legislature's vote-counting standard -- the\r\nvery one that, by the Constitution, is the Florida legislature's\r\njob to set. It is the *Bush* people who are trying to change the\r\nrules after the election, and in a way that is the most extreme\r\nviolation of federalism that could possibly be imagined. (This is\r\non top of the Republican Florida legislature's own attempt to change\r\nthe rules.) What is more, the standard that they are now trying\r\nto overturn -- local control over the precise method of determining\r\nvoter intent -- is not only normal practice in many states, but has\r\nbeen for hundreds of years. In order for the Supreme Court to give\r\nBush what he wants, they would have to invalidate numerous elections.<\/p>
\r\n\r\nAnd that's just the start. By granting Bush the stay he asked for,\r\nthe Supreme Court not only explicitly asserted that Bush was likely\r\nto prevail in these arguments, but that Bush would suffer irreparable\r\nharm from the mere counting of votes, mere hours before the vote-\r\ncounting would have ended, and furthermore that the harm to Bush --\r\nwhich is speculative at best and probably nil unless you count the\r\nharm that would come from losing the election -- is greater than that\r\nto Gore -- which given the constraints of the calendar is absolute.<\/p>
\r\n\r\nOn top of all that, the Supreme Court has now taken custody of the\r\ndisputed ballots that had previously been held by the Florida court,\r\nand if it really believes in the argument that it provided for granting\r\nBush his stay then it follows that it intends to keep those ballots\r\nsecret forever, so that the true outcome will never be known.<\/p>
\r\n\r\nIn fact it's actually much worse than even that -- I've hardly gotten\r\ninto the issues raised by Justice Stevens' dissent -- but that is plenty\r\nenough to make clear what's really going on here: the Supreme Court\r\nis overthrowing the government of the United States. And the pundits,\r\nin their usual style, are blaming *Gore* for wrecking the country.<\/p>
\r\n\r\nSome asides:<\/p>
\r\n\r\n1. No matter how weird it gets, don't forget that the Florida Supreme\r\nCourt can still settle the whole matter and save us a lot of trouble\r\nby overturning one or both of the circuit courts that found for the\r\ndefendants in the Seminole and Martin absentee ballot cases. Granted\r\nthis is a little less certain after Tuesday, but we'd have to see.<\/p>
\r\n\r\n2. For weeks now the Bush and Gore legal teams have been producing large\r\nnumbers of lengthy and complex legal documents literally overnight, most\r\nof them involving uncertain areas of law. There's a book to be written\r\nabout how they are doing this. Part of the answer involves networked\r\nteams of law students organized by constitutional law professors, all of\r\nwhom are living in hog heaven.<\/p>
\r\n\r\n3. Lots of people have been writing to me to say, why don't you write\r\nthese things for national publications or go on television to say them?\r\nI appreciate the sentiment, but I have two answers. One is that I'm not\r\nvery good at those things. The other is, why don't you? If you like my\r\narguments then you're welcome to use them. After all, 90% of echo-chamber\r\npunditry is finding a more hysterical way to say what other pundits have\r\nsaid. The least you can do for your country is get out there and echo\r\nsomething that you think makes sense. A letter to the editor takes a\r\nfew minutes. Make one point, keep it to 150 words, and it has a decent\r\nchance of getting published. An op-ed column takes a couple of hours.\r\nStart with a news hook of the day, work toward a bigger point, rewrite\r\nall the needless words out of it, and fax it to your regional newspaper's\r\nopinion editor with a brief cover letter.<\/p>
\r\n\r\n\r\nI've broken the enclosed URL's into groups, only the first two of which\r\nrelate to the election controversy. Thanks to everyone who contributed.<\/p>
\r\n\r\nSupreme Court documents<\/p>
\r\n\r\nBush Supreme Court brief
\r\n http:\/\/news.findlaw.com\/cnn\/docs\/election2000\/uscbushbrf1210.pdf<\/p>
\r\n\r\nGore Supreme Court brief
\r\n http:\/\/news.findlaw.com\/cnn\/docs\/election2000\/uscgorebrief1210.pdf<\/p>
\r\n\r\nSupreme Court order stopping recount
\r\n http:\/\/www.cspan.org\/campaign2000\/Florida\/00-949x.pdf<\/p>
\r\n\r\nBush Emergency Application for Stay
\r\n http:\/\/frwebgate.access.gpo.gov\/supremecourt\/emappforstaybushvvore.fdf \r\n http:\/\/frwebgate.access.gpo.gov\/supremecourt\/supp00-a504.fdf<\/p>
\r\n\r\nOpposition of Respondent Gore to Stay Application
\r\n http:\/\/frwebgate.access.gpo.gov\/supremecourt\/response00a-504.fdf<\/p>
\r\n\r\n\r\nother election stuff<\/p>
\r\n\r\nCollision with Politics Risks Court's Legal Legitimacy
\r\n http:\/\/www.nytimes.com\/2000\/12\/11\/politics\/11ASSE.html<\/p>
\r\n\r\nUndervotes Aren't Only Pending Dispute
\r\n http:\/\/www.herald.com\/content\/today\/news\/florida\/digdocs\/092651.htm<\/p>
\r\n\r\nFinally, Someone Challenges the Dubya Standard
\r\n http:\/\/www.boston.com\/dailyglobe2\/345\/oped\/Finally_someone_challenges_the_Dubya_standard+.shtml<\/p>
\r\n\r\nThe Lynching of the Black Vote
\r\n http:\/\/www.boston.com\/dailyglobe2\/345\/oped\/The_lynching_of_the_black_vote+.shtml<\/p>
\r\n\r\nBlack Voters Angered by Hurdles
\r\n http:\/\/www.gopbi.com\/partners\/pbpost\/epaper\/editions\/today\/news_2.html<\/p>
\r\n\r\nIn Order To Preserve Democracy, It Was Necessary To Destroy It
\r\n http:\/\/la.indymedia.org\/display.php3?article_id=4820<\/p>
\r\n\r\nGhosts in Florida
\r\n http:\/\/washingtonpost.com\/wp-dyn\/articles\/A46308-2000Dec8.html<\/p>
\r\n\r\nThe Day Democracy Was Defeated
\r\n http:\/\/www.msnbc.com\/news\/501078.asp<\/p>
\r\n\r\nFamous Racists: Strom Thurmond and William Rehnquist
\r\n http:\/\/flag.blackened.net\/daver\/misc\/thurmond.html<\/p>
\r\n\r\nLet the Recounts Resume
\r\n http:\/\/www.salon.com\/politics\/feature\/2000\/12\/09\/deadline\/<\/p>
\r\n\r\nNo Finality Without Fairness
\r\n http:\/\/www.thenation.com\/doc.mhtml?i=special&s=shapiro20001209<\/p>
\r\n\r\n\r\n\r\n\r\n\r\n<\/p>\n","contact":"","link":"","address":"","phone":"","parent_id":0,"mime_type":"text\/html","summary":"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.","numcomment":0,"fileurl":"\/uploads\/2000\/12\/rre_fl22.htm","filesize":"9.2 kibibytes","article_url":"\/news\/2000\/12\/4850.php"},"attachments":[],"comments":[]}