On December 12, 2000, the US Supreme Court hijacked the Presidential election of 2000 from the people of the United States by rendering an illegal and unconstitutional decision in the landmark case of Bush v. Gore.
This has grave implications not only for the nation as a whole, but particularly those concerned about the ADA and other civil rights statutes. It is expected that the next "President" will appoint 3- 4 justices to the Supreme Court. Any justices appointed by Bush would greatly endanger our personal liberties, as the balance of conservatives and liberals would shift from 5 - 4 to 6 - 3 or even 7 - 2.
The following is an "FAQ style" explanation of why this decision is unconstitutional, written by Mark Levine, Esq. As an attorney myself, I strongly agree with his legal analysis and reasoning.
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? Q: But wait a second. The US Supreme Court has to give a reason, right? Q: So Bush wins because hand-counts are illegal? Q: Oh. So the justices did not believe that the hand-counts would find any
legal ballots? Q: Oh. Does this have something to do with states' rights? Don't
conservatives love that? Q: Is there an exception in this case? Q: C'mon. The Supremes didn't really say that. You're exaggerating. Q: What complexities? 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? Q: Huh? Q: I thought the Florida Court was not allowed to change the Legislature's
law after the election. Q: So what's the problem? Q: I thought only the Legislature could "adopt" new law. Q: So if the Court had adopted new standards, I thought it would have been
overturned. 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. Q: Wait, wait. I thought the problem was "equal protection," that some
counties counted votes differently from others. Isn't that a problem? Q: Aha! That's a severe equal-protection problem!!! Q: Was it the butterfly ballots that violated Florida law and tricked more
than 20,000 Democrats to vote for Buchanan or both Gore and Buchanan? Q: Yikes. So what was the serious equal protection problem? Q: A single judge? I thought the standards were different. I thought that
was the whole point of the Supreme Court opinion. Q: Hmmm. Well, even if those .005% of difficult-to-tell votes are thrown
out, you can still count the votes where everyone, even Republicans, agrees
the voter's intent is clear, right? Q: Why not? Q: I thought the Supreme Court said that the Constitution was more important
than speed. 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? Q: But they just said that the constitution is more important than time! Q: No time to count legal votes where everyone, even Republicans, agree the
intent is clear? Why not? Q: Is December 12 a deadline for counting votes? Q: So why is December 12 important? Q: What does the Congressional role have to do with the Supreme Court? Q: But I thought --- Q: But I thought the Florida Court was going to just barely have the votes
counted by December 12. Q: Why? 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? Q: In other words, if America knows the truth that Gore won, they won't
accept the US Supreme Court overturning Gore's victory? Q: Is that a legal reason to stop recounts? or a political one? Q: Aren't these conservative justices against judicial activism? Q: Well, if the December 12 deadline is not binding, why not count the votes
afterward? Q: Didn't the US Supreme Court condemn the Florida Supreme Court for
arbitrarily setting a deadline? Q: But, but -- Q: So who caused Florida to miss the December 12 deadline? Q: So who is punished for this behavior? Q: Tell me this, are Florida's election laws unconstitutional? Q: And the laws of 50 states that allow votes to be cast or counted
differently are unconstitutional? Q: Then why aren't the results of 33 states thrown out? 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: So, what do we do, have a re-vote? throw out the entire state? count
under a single uniform standard? Q: That's completely bizarre! That sounds like rank political favoritism!
Did the justices have any financial interest in the case? Q: Why didn't they recuse themselves? Q: I can't believe the justices acted in such a blatantly political way. Q: So what are the consequences of this? 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? Q: So what will happen to the Supreme Court when Bush becomes President? Q: Is there any way to stop this? Q: What do I do now?
Mark H. Levine
Attorney at Law
MarkLevineEsq@aol.com
Postscript
Q: Isn't anyone on the US Supreme Court a rational follower of the rule of
law? Justice David Souter (Republican appointed by Bush): Justice Ruth Bader Ginsburg (Democrat appointed by Clinton): Justice Steven Breyer (Democrat appointed by Clinton):
THE "GORE EXCEPTION":
A Layman's Guide
to the Supreme Court Decision
in Bush v. Gore
A: Sure. I'm a lawyer. I read it. It says Bush wins, even if Gore got the
most votes.
A: Right.
A: Oh no. Six of the justices (two-thirds majority) believed the
hand-counts were legal and should be done.
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.
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.
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.
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."
A: They didn't say.
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.
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.
A: Right.
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".
A: Right.
A: Right. You're catching on.
A: Right. Next question.
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.
A: No it's not. The Supreme Court wasn't worried about the 3% of
Democratic-leaning ballots thrown in the trashcan in Florida. That
"complexity" was not a problem.
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.
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 different opinion about the voter's intent,
even though a single judge was overseeing the entire process to resolve any
disputes.
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.
A: Nope.
A: No time.
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."
A: No. The Supreme Court won't allow it.
A: You forget. There is the "Gore exception."
A: Because December 12 was yesterday.
A: No. January 6, 2001 is the deadline. In the Election of 1960, Hawaii's
votes weren't counted until January 4, 1961.
A: December 12 is a deadline by which Congress can't challenge the results.
A: Nothing. In fact, some 20 states still (as of December 13, 2000) haven't
turned in their results.
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.
A: They would have made it, but the five conservative justices stopped the
recount last Saturday.
A: Justice Scalia said some of the counts may not be legal.
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 be 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."
A: Yes.
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.
A: Yes, when liberal judges are perceived to have done it.
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.
A: Yes.
A: Not to worry. The US Supreme Court does not have to follow laws it sets
for other courts.
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 paid Florida vacations
for intimidating officials; the constant request for delay by Bush lawyers in
Florida courts; and, primarily, the US Supreme Court, which both refused to
consider Bush's equal protection argument on November 22, 2000 (when the
Florida Supreme Court still had time to rectify the count with a uniform
standard), then stopped the recount entirely on December 9 (which would have
been completed by December 12), and then complained there was no time on
December 12 at 10 p.m. to count the votes before midnight.
A: Gore, of course.
A: Yes, according to the Supreme Court.
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.
A: Um. Because‚...um‚...the Supreme Court doesn't say.
A: Right. But a careful analysis by the Miami Herald shows Gore won Florida
by about 23,000 votes (excluding the butterfly ballot errors). See
http://www.herald.com/thispage.htm?content/archive/news/elect2000/decision/104
268.htm
A: No. We just don't count the votes that favor Gore.
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.
A: If either had recused himself, the vote would have been 4-4, and the
Florida Supreme Court decision allowing recounts would have been affirmed.
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)
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 (George W. Bush)
who won the all important 5-4 Supreme Court vote, which trumps America's
choice.
A: That's 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. That's why we don't need to count the People's votes in Florida.
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.
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.
A: Email this to everyone you know, and write or call your Senator (URL:
http://www.senate.gov for contact information or call 202.224.3121),
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.
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."
"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. "
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."
"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."