Lawyer Q&A/Gore Exception Updated

kelley oudeis at earthlink.net
Fri Dec 22 09:18:05 PST 2000


Date: Tue, 19 Dec 2000 06:35:46 EST From: MarkLevineEsq at AOL.COM To: undisclosed-recipients: ; Subject: Fwd: Q&A on Bush v. Gore

Dear all,

Thanks for writing me. I apologize for responding in a bulk email, but I have gotten over 3000 emails since I first wrote "The Gore Exception" from all 50 states and a number of foreign countries. Although I used to respond to every email individually, I can no longer do so.

You see, I have a law practice to attend to. (Yes, I exist. Yes, I'm a practicing lawyer in Los Angeles. I graduated Yale Law School in 1992, and I am a member of the Calfornia Bar. My practice consists entirely of litigation, with a strong appellate practice.)

As AOL allows me to send out only 50 names or so at a time, I have only responded to those of you who question my existence or have asked for a clean, ungarbled copy of the "Layman's Guide" which I provide below.

All of the facts in my Q&A are well-documented, either in the US Supreme Court opinion, Federal Law (3 USC Sec. 5), former Supreme Court case-law, the Florida Supreme Court and the Florida courts below, or, occasionally, press accounts.

To those of you who wonder why what you are about to read (again) is not exactly what Michael Moore has put on his website, the answer is simple. I revised it. Moore received my first draft, written on the morning of December 13, that I sent to about 15-20 family and friends. I never dreamed of the massive response this little Q&A has gotten. Indeed, I never sent it to Moore. He got it, liked it, and put it on his website.

The problem with the original draft, like all first drafts, is that it had a few typos in it. I trust you find this updated version (which is not that different from the first, though I added some quotes from the dissents) to be complete and typo-free with just a few more Qs and As added or language modified to be as clear and accurate as possible. If you are to forward or post a version, please use THIS version and discard the old one.

Some of you have asked me questions or raised techincal ponts about the old version. Virtually all your questions are answered in this updated version.

Many of you have asked what you can do. You can call your Democratic Senators, as I advise in the Q&A. If you live in a state with two Republican Senators or in the disenfranchised District of Columbia, I suggest calling Minority Leader Tom Daschle, Judicary Chair Patrick Leahy [actually Ranking (Democrat) Member], Ted Kennedy, and Paul Wellstone.

While there are humorous aspects to the Q&A, it is indeed serious. The illogical opinion of the Supreme Court, one of the worst and ill-reasoned opinions in US history is, unfortunately, no joke.

-------------====------------- -------------====-------------

THE "GORE EXCEPTION":

A Layman's Guide to

the Supreme Court Decision

in Bush v. Gore

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?

A: 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?

A: Yes.

Q: Well, if hand counts are fine, why were they stopped? Have the

re-counts have 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 control

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 didn'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.

Q: Huh?

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 after the election.

Q: I thought the Florida Court was not allowed to change the

Legislature's law after the election.

A: Right.

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.

A: Right.

Q: So if the Florida Court had adopted new standards, I thought it

would have been overturned.

A: Right. You're catching on.

Q: Wait. 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-leaning ballots (about 170,000) thrown in the trashcan in

Florida. That "complexity" was not a problem.

Q: Was it the butterfly ballots that violated Florida law and fooled

more than 10,000 Democrats into voting for Buchanan or both Gore and

Buchanan?

A: Nope. The courts have 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-leaning voters (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?

A: Nope.

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.

Q: Why?

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?

A: Yes.

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?

A: Yes.

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 a 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: 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.

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:

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)

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-important 5-4 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 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 MarkLevineEsq at aol.com

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.

Postscript

Q: So two last Questions. How did this Q&A get passed around so much?

A: It certainly surprised me. I originally sent it to 15 or 20

people. I think it struck a chord among Americans who saw the

media celebrate while their right to vote was swept under the rug,

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 Americans who wanted to fight back but

didn't know how.

Q: And who the heck are you anyway?

A: I'm a practicing lawyer in Los Angeles and a graduate of Yale Law

School. On Elections Day, I helped voters who were turned away at

the polls go back and legally vote.

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