Scalia's on First, Bush is on Second, ...
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From: Peter Langston <psl>
Date: Thu, 14 Dec 100 13:06:00 -0800
Subject: Scalia's on First, Bush is on Second, ...
X-Lib-of-Cong-ISSN: 1098-7649 -=[ Fun_People ]=-
[A final, almost humorous, postmortem on this very strange election...
Forwarded-by: Joe Buhler <firstname.lastname@example.org>
Forwarded-by: Silvio Levy <email@example.com>
Here's a marvelous, easy-to-read analysis of the Supreme Court decision
from California attorney Mark H. 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?
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: Generally 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 have 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, or the problem of equal protection in election processes
generally presents many complexities."
Q: What complexities?
A: They don'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. Dead 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
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.
Q: So what's the problem?
A: They didn't change the Legislature's law after the election. 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 Court had adopted new standards, I thought it would have been
A: Right. You're catching on.
Q: If the Court had adopted new standards, it would have been overturned
for changing the rules. And when it didn't, it was overturned for not
changing the rules. That means that no matter what the Florida Supreme
Court did, legal votes could never be counted.
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 rich, largely Republican-leaning
counties record 99.7% of the votes. Some, like the punchcard systems
in poor, largely Democratic-leaning counties record only 97% of the
votes. So approximately 3% of Democratic votes are thrown in the trash
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
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 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
Q: Hmmm. OK, so if those votes are thrown out, you can still count the
votes where everyone agrees the voter's intent is clear?
Q: Why not?
A: No time.
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 is the deadline. In 1960, Hawaii's votes weren't counted
until January 4.
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?
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.
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! But the US Supreme Court rejected it. 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
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, very good; you're catching on.
Q: Is that a legal reason to stop recounts? or a political one?
A: Let's just say that, in all of American history and all of American
law, this reason has no basis in law. But that doesn'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
A: The US Supreme Court, after admitting that the December 12 deadline is
not binding, set December 12 as a binding deadline at 10 p.m. on
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 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 laws are unconstitutional?
Q: And the laws of 50 states that allow votes to be cast or counted
differently are unconstitutional?
A: Yes. And 33 states have the "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. Though 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!
But why? 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
Q: Why didn't they recuse themselves?
A: If either had recused himself, the vote would have been 4-4, and the
Florida Supreme Court decision allowing recounts would have been
Q: I can't believe the justices acted in such a blatantly political way.
A: No? 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 and in Florida and under our
Constitution (Al Gore) will lose to America's second choice who won
the all important 5-4 Supreme Court vote.
Q: I thought in a democracy, the guy with the most votes wins.
A: True, in a democracy. But America is not 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 insure
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=8A.and one day we can hope to return to the rule of law.
Q: What do I do now?
A: Write or call your senator, reminding him 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 until 2004 when a president is finally chosen by most of
the American people.
Mark H. Levine
Attorney at Law
© 2000 Peter Langston