Supreme Court Decision Explained
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
A: Oh no. Six of the justices (two-thirds
majority) believed the hand-counts were legal and should be
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
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
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 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.
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
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.
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.
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
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 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
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
A: Because December 12 was yesterday.
Q: Is December 12 a deadline for counting
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
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
A. 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."
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?
A: 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.
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?
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?
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 Florida's laws are
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
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! 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:
(December 9 stay stopping the recount)
(December 12 opinion)
Q: So what are the consequences of
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 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.
Q: What do I do now?
A: Email 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