The Jake
03-12-2003, 07:21 AM
This is a very funny but sadly accurate portrayal of how Bush won the election. It's broken down into layman's terms but considering I'll eventually be an American citizen this freaks me out. Sad part is the Aussie prime minister pretty much did something very similar using a publicity stunt to win the last election, making him no better than Bush (funny how he's brown nosing Bush, the two have more in common than you'd think)....
NOTE: This is very long. But funny. :)
http://www.bushstillblows.com/goodies2.html
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/elect200
0/decisi on/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_
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.
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 California 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 technical points_
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.
NOTE: This is very long. But funny. :)
http://www.bushstillblows.com/goodies2.html
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/elect200
0/decisi on/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_
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.
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 California 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 technical points_
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.