THE GORE EXCEPTION
A LAYMAN'S GUIDE TO
THE SUPREME COURT DECISION IN
BUSH V. GORE
by Mark H. Levine, Attorney at Law
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 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?
Q: Well, if hand counts are fine, why were they stopped? Have the re-counts 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 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, as 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. 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.
A: The Legislature declared that the only legal standard for counting a 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.
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.
Q: So if the Court had adopted new standards, I thought it would have been overturned.
A: Right. You're catching on.
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-leaningballots (about 170,000) thrown in the trashcan in Florida. That "complexity" was not a problem.
Q: Was it the butterfly ballot that violated Florida law and fooled more than 15,000 Democrats into voting for Buchanan or both 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 170,000 or 3% of
Democratic-leaningvoters (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?
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.
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?
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?
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 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: 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?
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/elect2000/decision /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:
(December 9 stay stopping the recount) - PDF format
(December 12 opinion) - PDF format
[ Andrys' alternative for the Dec. 12 opinion, including Dissents ] http://supct.law.cornell.edu/supct/html/00-949.ZPC.html
(December 12 opinion and dissents) - HTML browser and PDF formats
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-important5-4 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 by 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
Mark Levine's Postscript TO REACH YOUR SENATORS:
GO TO http://www.senate.gov OR CALL 202-224-3121.If you live in a state with two Republican Senators (or the disenfranchised District of Columbia with no Senators), I suggest you call these four Democrats: Minority Leader Tom Daschle, Judiciary Chair Patrick Leahy, Senator Ted Kennedy, and Senator Paul Wellstone.
PostscriptQ: A few more Questions. How did this Q&A get passed around so much?A: It certainly surprised me. I originally sent it on December 13, 2000 (the morning after the Supreme Court decision) to 15 or 20 people. I think it struck a chord among 1) Americans who saw the media celebrate while their right to vote was swept under the rug, 2) 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 3) Americans who wanted to fight back but didn't know how. Michael Moore got my first draft (typos and all), put it on his website and accelerated the movement around the globe. I have no connection, however, to Michael Moore and did NOT support Ralph Nader in 2000. Hey Mike! Use the update! Please! (He's not listening.)Q: Can you document all this?A: Every bit of it. Email does not allow for footnotes. But everything I say is well documented from a variety of sources: the two US Supreme Court opinions (obviously), Federal Law (3 USC Sec. 5), former Supreme Court case-law, the opinions of the Florida Supreme Court and the Florida courts below, Florida statutes, and, occasionally, press accounts.Q: Are you drowning in emails?A: Yes! After I made the courageous (or foolhardy, take your pick) decision to put my email address in the Q&A, I have received more than 3000 emails in 5 days from all 50 states and more than a dozen foreign countries. If I'm just getting 1 in a 100 back, this little Q&A has been read by several hundred thousand Americans. But I do have a law practice to attend to. So please don't email me back unless you doubt my existence, want to publish it or give me an interview, or "really" have an important question or comment. 90%+ of the comments thus far have been positive. I used to respond to each email individually (back when I was only receiving 10-20 a day rather than 100 an hour thanks to the geometric progression of the Internet), but I rarely do so now, except to pass out this updated version to those of you who ask for it or doubt my existence.Q: Have the Bushies come up with any response?A: Only weak ones. They falsely claim, like the 5 justices in the majority claimed, that 7 justices support their views. That's clearly not the case. None of the four dissenters joined any portion of the 5-person "per curiam" decision, and these 4 dissenters have some pretty strong views on the matter as you can see above. Indeed, in addition to the 4 dissenters who wanted to immediately count the votes (2 under the Florida Supreme Court standard and 2 on a new uniform standard), an additional 2 in the majority (O'Connor and Kennedy) say they wanted to count the votes...but oh golly gee, time's up for democracy (although on November 22, when they had the time, all nine rejected a hearing on the same Bush equal protection claim they eventually decided at the last minute).Q: How about your strongest argument? That the Florida Court was in a Catch-22 situation, damned if they changed the rules and adopted a new uniform standard? and damned if they stuck with the general standard chosen by the Florida Legislature?A: The Bushies can't touch that one.Q: What about the fact that December 12 isn't really a deadline?A: A few of the Bushies claim the Florida Legislature really really really wanted the December 12 deadline as a "safe harbor", but not one of them (including one of them that represented Bush before the US Supreme Court) has yet been able to show me a law passed by the Legislature before the Election setting December 12 as a drop-dead deadline. There they go again, just as with the Florida legislative "special sessions," trying to change the rules after the game to anoint Bush the victor without counting votes.Q: What about the argument that voters who didn't remove their hanging chad should lose their right to vote?A: I think that's pretty harsh, don't you? Particularly when, at least in Palm Beach County, voters were given only FIVE MINUTES to vote on about 30 candidates and propositions. The five-minute limit was printed in bright red, very large bold all-capital letters, just below the much smaller instructions cited by Scalia, Rehnquist, and Thomas in their concurrence that I am certain few voters had time to read. In any event, the law in Florida has always been "clear intent of the voter," and the idea that not punching the chad all the way through disenfranchises a voter has always been solidly rejected by the Florida Courts. Perhaps, for this reason, Kennedy and O'Connor couldn't stomach this argument. Only the concurring opinion of Scalia, Rehnquist, and Thomas -- the three strongest conservative state-rights advocates! -- would overturn Florida's opinion on century-old Florida state-law without any federal basis for doing so.Q: Whatever happened with Seminole and Martin counties?A: As you know, Republicans in those counties corrected thousands of absentee ballot applications that were going to be thrown away due to improper completion. The supervisors of elections in those counties allowed Republican ballot applications to be corrected but not Democratic ones. The Florida Supreme Court -- consistent with its opinion that every vote counts and acting according to law rather than partisan dictates -- condemned the supervisors but decided not to throw away any votes. I've never met a Republican able to square the view that clear-intent Democratic-leaning votes with the "voter error" of failing to completely remove a chad should be thrown away while the Republicans who erred in completing their absentee ballot applications should still have their votes counted.Q: So is this election over? Has the fat lady sung?A: Her mouth is open and she's on her final note, but she has yet to finish it. According to Federal Law (3 USC Section 5), Congress cannot challenge any slate of electors when it's determined by December 12 OR when"such determination [is] made pursuant to such law so existing on" Election Day. In this case, however, the US Supreme Court did exactly what it warned Florida not to do: it changed Florida law after the election. If Florida had applied the Legislative "clear intent of the voter" standard as the Florida Supreme Court had ordered, that would not have been a change in the law and no challenge would have been possible. However, the US Supreme Court, by insisting Florida adopt a more specific standard, has changed the law, and the results may therefore be challenged by Congress.Q: How would the results be challenged?A: On January 6, 2001, it only takes only ONE Congressman/woman and ONE Senator to object to Florida's electoral votes. Then both houses votes on the challenge.Q: What are the chances of us actually stopping Florida electoral votes from counting and electing Gore?A: A snowball's chance in West Palm Beach. Even if all 50 Democratic Senators were to vote for Gore (with Gore providing the deciding vote as Vice President), the House would vote for Bush, and it requires both Senate and House to reject an electoral slate. But, even though the challenge would fail, wouldn't it be fun to try? If only, to show that we the People are unwilling to accept the Supreme Court's refusal to count our votes? Call Robert Wexler.Q: Will the votes ever be counted?A: Under Florida's Sunshine Laws, various media and Republican organizations have requested to count the votes. And they should be able to legally do so, unless the votecount is stopped by Republicans like Washington Congresswoman Jennifer Dunn, who advocates the ballots be "sealed." The most recent count has already brought Bush's margin down to 24 (That's right. Twenty-four.) See[You must place the entire URL on one line for it to work, from "http" to "headlines" and remove all spaces and linebreaks]Q: Do you think the disenfranchisement of Democrats in Florida and across the nation -- African-Americans in particular -- is intentional?A: It's certainly systematic. The machines do not act randomly. They do discriminate against Democrats far more than Republicans. The reason for this is that the worst-technology voting systems tend to be located in poorer areas, where voters tend to lean Democratic. These counties apparently just can't afford up-to-date new systems. I would strongly support a nationwide uniform ballot and a nationwide ban on punch card ballot systems. I would expect the Republican will try to block such voting reforms on two grounds: the machines are "good enough" (Hey! 97% accuracy!) and, get this, states' rights! They'll claim that the states should be left alone to control their own elections and dictate their own methods of tabulating votes (except when Gore is running).Q: But you didn't answer my question. Are African-Americans intentionally being kept from the polls?A: On Elections Day, I helped voters who were turned away at the polls go back and legally vote. I took responsibility for voters in three Congressional districts. 90% of the complaints came from one largely-African-American Congressional district, including not just voters turned away at the polls, but a polling place that opened three hours late. As for Florida, I didn't really believe the claims of intentional discrimination, until I read this newspaper article from England:Be careful. This will make you angry. It appears Ms. Harris may have "accidentally" disenfranchised thousands of African-American voters, enough to illegally change the results of the election.Q: Why is this Q&A so darn long?A: Because you folks who email me keep asking me questions!!!Q: And who the heck are you anyway?A: I'm a practicing lawyer in Los Angeles and a graduate of Yale Law School. My practice consists entirely of litigation, with a strong appellate practice.Q: Thank you.A: No, thank YOU. For reading this to the end and for caring about democracy in America.
- Mark H. Levine
The Gore Exception
Last updated on Dec. 22, 2000
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