Mark H. Levine, Attorney at Law

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?

Sure.?I'm a lawyer. I read it.
It says Bush wins, even if Gore got the most votes.

But wait a second. The US Supreme Court has to give a reason, right??

So Bush wins because hand-counts are illegal?
Oh no. Six of the justices (two-thirds majority) believed the hand-counts were legal and should be done.

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

Oh. Does this have something to do with states' rights?
Don't conservatives love that??

Generally yes. These five justices, in the past few years, 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.

Is there an exception in this case??
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.

C'mon. The Supremes didn't really say that. You're exaggerating.?
Nope. They held "Our consideration is limited to the present circumstances, or the problem of equal protection in election processes generally presents many complexities."

What complexities??
They don't say.

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??
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 wrong.

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.

I thought the Florida Court was not allowed to change the Legislature's law after the election.?

So what's the problem??
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"

I thought only the Legislature could "adopt" new law.

So if the Court had adopted new standards, I thought it would have been overturned.?
Right. You're catching on.

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.?
Right.?Next question.

Wait, wait. I thought the problem was "equal protection," that some counties counted votes differently from others.
Isn't that a problem??

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.

Aha!?That's a severe equal-protection problem !!!?
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.

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

Yikes.?So what was the serious equal protection problem?
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 voter's intent.

Hmmm.?OK, so if those votes are thrown out, you can still count the votes where everyone agrees the voter's intent is clear?

Why not?
No time.

No time to count legal votes where everyone, even Republicans, agree the intent is clear? Why not?
Because December 12 was yesterday.

Is December 12 a deadline for counting votes?
No. January 6 is the deadline. In 1960, Hawaii's votes weren't counted until January 4.

So why is December 12 important?
December 12 is a deadline by which Congress can't challenge the results.

What does the Congressional role have to do with the Supreme Court?

But I thought ...
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.

But I thought the Florida Court was going to just barely have the votes counted by December 12.
They would have made it, but the five conservative justices stopped the recount last Saturday.

Justice Scalia said some of the counts may not be legal.

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.
Great idea!?The US Supreme Court rejected it.?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."

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

Is that a legal reason to stop recounts? or a political one?
Let's just say 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.

Aren't these conservative justices against judicial activism?
Yes, when liberal judges are perceived to have done it.

Well, if the December 12 deadline is not binding, why not count the votes?
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.

Didn't the US Supreme Court condemn the Florida Supreme Court for arbitrarily setting a deadline?

But, but ...
Not to worry.?The US Supreme Court does not have to follow laws it sets for other courts.

So who caused Florida to miss the December 12 deadline?
The Bush lawyers who first went to court to stop the recount, the mob in Miami that got paid Florida vacations for intimidating officials, and the US Supreme Court for stopping the recount.

So who is punished for this behavior?
Gore, of course.

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

And the laws of 50 states that allow votes to be cast or counted differently are unconstitutional?
Yes. And 33 of those states have the "clear intent of the voter" standard that the US Supreme Court found was illegal in Florida.

Then why aren't the results of 33 states thrown out?
Um. Because ... um ... the Supreme Court doesn't say ...

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

So, what do we do, have a re-vote??Throw out the entire state? Count all ballots under a single uniform standard?
No. We just don't count the votes that favor Gore.

That's completely bizarre!?That sounds like rank political favoritism! Did the justices have any financial interest in the case?
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.

Why didn't they recuse themselves?
If either had recused himself, the vote would be 4-4, and the Florida Supreme Court decision allowing recounts would have been affirmed.

I can't believe the justices acted in such a blatantly political way.
Read the opinions for yourself : 9 stay stopping the recount), and  (December 12 final opinion)

So what are the consequences of this?
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.

I thought in a democracy, the guy with the most votes wins.
True, in a democracy.?But America is not a democracy.?In America, in the year 2000, the guy with the most US Supreme Court votes wins.

Is there any way to stop the Supreme Court from doing this again?
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.

What do I do now?
E-mail this to everyone you know, and 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.

Betty Bowers interviews Antonin Scalia

Gore Won

None Dare Call It Treason

Equal Protection Runs Amok

Supreme Injustice

Irreparable Harm

Election Irregularities in Florida

Quotes about George W. Bush

Meet the Justices


November 30, 2000

The men and women on the United States Supreme Court may hold the fate of the 2000 election in their gavels.

Here, a who's who of the nine who must decide the Election 2000.

Supreme Court Justices are, by their very nature, notoriously hard to read ?a fact which makes taking the pulse of this mysterious group especially challenging.

Nevertheless, legal experts have managed to come up with a few dependable generalizations about this Court : They support states rights, favor a limited judiciary role and often refer controversial cases back to the state legislature.

Will the Justices play to type? Or will they, perhaps, surprise us?

Chief Justice William Rehnquist Appointed by Richard Nixon in 1972, Rehnquist replaced Warren Burger as Chief Justice in 1986. Rehnquist is a strict constructionist (he interprets the Constitution in very narrow terms) who leans conservative. Very much in favor of states' rights. Often speaks in terms of leaving issues up to the "people's branch in government," i.e., the legislature. Widely considered a skilled consensus-builder.

Steven Breyer The most junior member of the Court, Breyer was appointed by Bill Clinton in 1994, replacing Harry Blackmun. Breyer is seen as a pragmatist who often takes issue with Justices Scalia and Thomas's narrow view of constitutional rights, preferring to consider the impact of law on the lives of everyday people. Rose to prominence and gained respect of congressional Republicans after deconstructing extremely complex deregulation guidelines for the airline industry. Often sides with the liberal wing of the Court : Justices Souter, Ginsburg and Stevens.

Ruth Bader Ginsburg Named to the Court in 1993 by Bill Clinton, Ginsburg replaced Byron White. Ginsburg is well known for her commitment to striking down laws that treat men and women differently; Clinton called her "the Thurgood Marshall of gender equity law." She shares Justice Breyer's conviction that law should serve the individual. Most likely to side with Justices Souter, Stevens and Breyer.

Anthony Kennedy Following on the tail of a bitter congressional battle over unsuccessful Reagan nominees Robert Bork and Douglas Ginsburg, Anthony Kennedy was confirmed easily in 1988. A moderate who often helps Rehnquist build necessary compromises, Kennedy tends to examine each case on an individual basis, and seems uninterested in making larger political statements.

Sandra Day O'Connor The first woman appointed to the U.S. Supreme Court, O'Connor was nominated by Ronald Reagan and took her seat in 1981. O'Connor is a fan of federalism and shies from personally interpreting the Constitution. She tends to side with the more liberal Justices on many of the most controversial cases, including those involving abortion rights and the separation of church and state, but writes narrow concurring opinions that often become law because they also appease the dissenting conservative sentiment.

Antonin Scalia Since his Reagan-sponsored appointment in 1986, Scalia has become a favorite son of the conservative movement. He does not believe the courts should play a significant role in the work of the executive and legislative branches, believes checks and balances between the three branches of government are necessary and critical, and often argues that the law's primary role is to protect "the liberties of the people" from the unchecked powers of any of the three branches. Scalia favors a very strict reading of the Constitution and has attempted repeatedly to strike down Roe v. Wade, saying that abortion is a political issue that should not be decided by the court. Scalia is often seconded by Clarence Thomas.

David H. Souter Nominated by George Bush in 1990, Souter replaced William Brennan. In the decade since he joined the bench, Souter has emerged as the Court's most influential moderate, often working with Sandra Day O'Connor to establish a centrist opinion. Souter has a strong respect for precedent and tends to be cautious in his opinions. A quirky traditionalist, Souter has very few possessions and calls himself a Luddite. When asked in 1996 whether cameras would be allowed in the SCOTUS courtroom, he famously replied, "When they roll them over my dead body."

Senior Associate Justice John Paul Stevens Stevens took to the bench in 1975 after being nominated by Gerald Ford to replace William Douglas. A true independent, Stevens can be unpredictable in his opinions, but he always considers the effects of a ruling on society. Tends to defer to Congress as a decision-making body, and downplays the authority of the courts. Often sides with Justices Breyer, Ginsburg and Souter, but also writes more lone dissents than any other Justice.

Clarence Thomas Appointed by George Bush in 1991, Thomas replaced Thurgood Marshall in the closest confirmation vote in over a century (52-48). Since then, Thomas has earned a reputation as a conservative, in part for his very narrow reading of individual rights under the Constitution. He opposes affirmative action and Roe v. Wade, supports limited power for the Supreme Court and opposes the view that the Constitution is designed "to address all of the ills in our society." Thomas sides most often with Justice Scalia, concurring with the more senior judge almost 90 percent of the time.

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