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December 2000

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The "Gore Exception"

How an Illogical, Inconsistent Supreme Court Opinion of Five Justices Anointed Bush as President of the United States

Mark Levine

 

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 justices (two-thirds majority) believed the hand-counts were legal and should be done.

 

Q: Oh. So the justices did not believe that the hand-counts would find any legal ballots?

A. Nope. 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 can't be.

 

Q: Oh. 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 the failure of the Florida Court to change the rules 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.

 

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 Court had adopted new standards, I thought it would have been overturned.

A: Right. You're catching on.

 

Q: If the Court had adopted new standards, it would have been overturned for changing the rules. And if it didn't, it's overturned for not changing the rules. 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 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 ballots thrown in the trashcan in Florida. That "complexity" was not a problem.

 

Q: Was it the butterfly ballots that violated Florida law and tricked more than 20,000 Democrats to vote for Buchanan or Gore and Buchanan?

A: Nope. The Supreme Court has 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 3% of Democrats (largely African-American) disenfranchised. The problem is that somewhat less than .005% of the ballots (100 to 300 votes) may have been determined under slightly different standards because judges sworn to uphold the law and doing their best to accomplish the legislative mandate of "clear intent of the voter" may have a slightly opinion about the voter's intent, even though a single judge was overseeing the entire process to resolve any disputes.

 

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 when the US Supreme Court stopped him from counting the uncounted votes (favoring Gore). Republican activists did their best to send junk faxes to Lewis in order to prevent him from standardizing the process in a way that could justify the vote counting. They succeeded.

 

Q: Hmmm. Well, even if those .005% of difficult-to-tell votes are thrown out, you can still count the votes where everyone agrees the voter's intent is clear, right?

A: Nope.

 

Q: Why not?

A: No time.

 

Q: I thought the Supreme Court said that 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 time!

A: You forget. There is the "Gore exception."

 

Q: No time to count legal votes where everyone, even Republicans, agree the intent is clear? Why not?

A: Because December 12 was yesterday.

 

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.

 

Q: But I thought ---

A: The Florida Supreme Court had earlier held 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 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 counts may not be legal.

 

Q: So why not separate the votes into piles -- indentations for Gore, hanging chads for Bush, votes that everyone agrees went to one candidate or the other -- 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?

A. Great idea! An intelligent, rational solution to a difficult problem! The US Supreme Court rejected it. (Gore exception) They held that such counts would likely to produce election results showing Gore won and Gore's winning would cause "public acceptance" and that would "cast[] a cloud" over Bush's "legitimacy" that would harm "democratic stability."

 

Q: In other words, if America knows the truth that Gore won, they won't accept the US Supreme Court overturning Gore's victory?

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 reason has no basis in law. But that didn't stop the five conservatives from creating new law out of thin air.

 

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 admitting 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 first went to court to stop the recount, the rent-a-mob in Miami that got paid Florida vacations for intimidating officials, and the US Supreme Court for stopping the recount.

 

Q: So who is punished for this behavior?

A: Gore, of course.

 

Q: Tell me this, are Florida's election laws unconstitutional?

A: Yes, according to the Supreme Court.

 

Q: And the laws of 50 states that allow votes to be cast or counted differently are unconstitutional?

A: Yes, according to the logic of the Supreme Court opinion. And 33 states have the same "clear intent of the voter" standard that the US Supreme Court found was illegal in Florida

 

Q: Then why aren't the results of 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?

A: Right. But a careful analysis by the Miami Herald shows Gore won Florida by about 20,000 votes (excluding the butterfly ballot errors).

 

Q: So, what do we do, have a re-vote? Throw out the entire state? Count under a single uniform standard?

A: No. We just don't count the votes that favor Gore.

 

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 working for Bush. Thomas's wife is collecting applications for people who want to work in the Bush administration.

 

Q: Why didn't they recuse themselves?

A: If either had recused himself, the vote would be 4-4, and the Florida Supreme Court decision allowing recounts would have been affirmed.

 

Q: I can't believe the justices acted in such a blatantly political way.

A: Read the opinions for yourself:

http://frwebgate.access.gpo.gov/supremecourt/00-949 dec12.fdf

(December 9 stay stopping the recount)

http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf

(December 12 opinion)

 

Q: So what are the consequences of this?

A: The guy who got the most votes in the US and in Florida and under our Constitution (Al Gore) will lose to America's second choice (Bush) who 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.

A: True, in a democracy. But America in 2000 is no longer a democracy. In America in 2000, the guy with the most US Supreme Court votes wins.

 

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 Supremes 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 can end.and one day we can hope to return to the rule of law and the will of the people.

 

Q: What do I do now?

A: Email this to everyone you know, and write or call your Senator, reminding him or her that Gore beat Bush by several hundred thousand votes (three times Kennedy's margin over Nixon) and that you believe that VOTERS rather than JUDGES should determine who wins an election by counting every vote. And to protect our judiciary from overturning the will of the people, you want them to confirm NO NEW JUDGES APPOINTED BY A NON-DEMOCRATICALLY ELECTED PRESIDENT until 2004 when a president is finally chosen by the American people, instead of Antonin Scalia.

Mark H. Levine

Attorney at Law

MarkLevineEsq@aol.com

 

P.S.

 

Q: Isn't anyone on the US Supreme Court a rational follower of 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."

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