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?

A: 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, 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.

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 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.

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 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 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 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 different opinion about the voter's intent.

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?

A: Nope.

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?

A: Nothing.

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.

Q: Why?

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! 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?

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 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?

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 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.

Q: So who is punished for this behavior?

A: Gore, of course.

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

A: Yes

Q: And the laws of 50 states that allow votes to be cast or counted differently are unconstitutional?

A: Yes. And 33 of those 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 all ballots 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: http://frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf (December 9 stay stopping the recount), and http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf (December 12 final 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.

-- MarchForJustice (get@real.now), December 15, 2000

Answers

This does a pretty good job of pointing out how lame and chaotic the US Supreme Court decision was, plus it has the benefit of including a link to the actual text, so I thought I'd bump it into Recent Answers.

What the Supreme Court did may look to Bush supporters as "saving the nation from a crisis by stepping in and halting this madness of more recounts" and therefore by definition the decision was a good one. My perusal of their decision shows that they simply had no idea what legal grounds they were basing their actions on. Apparently, they could only agree on what they wanted to do, but no five justices agreed on the basis in law for their decision!

But, read the text and make up your own mind. Don't take my word on it.

-- Brian McLaughlin (brianm@ims.com), December 15, 2000.

Internal War Breaks Out in the US Supreme Court (long)

http://www.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=004DY3

-- (another@recent.thread), December 15, 2000.

[Q: So what are the consequences of this?

A: The guy who got the most votes in the US]

except for the absentee ballots, never counted

[and in Florida]

except for every count we ever had, ALL of which had Bush ahead

[and under our Constitution]

meaning what? Bush got more electoral votes as per our Constitution.

[(Al Gore) will lose to America's second choice]

But only by ignoring the actual Florida counts, and trashing the existing electoral college system.

[who won the all important 5-4 Supreme Court vote.]

Which said Gore's selective recount tactic was unconstitutional.

This isn't a layman's guide, this is a loser's lament, and it's hard not to laugh at the extreme spin being applied at every opportunity. Any argument that stems from the fundamental assumption that Gore won Florida despite EVERY count we had, is simply sour grapes. This verbal bile is at the same level as, for instance, wondering if this Mark Levine is one of those limp-wristed Jews who couldn't punch a chad out of a ballot competently. It sure *sounds* like he's looking for someone to blame here.

-- Flint (flintc@mindspring.com), December 15, 2000.

Flint,

Get help someplace, you are unraveling.

-- Doc Paulie (fannybubbles@usa.net), December 16, 2000.

Flint

I asked this a few days ago but did not get your response.

Do you believe there are any ballots that the machines did not read- UNdervote or overvote, that may be legal votes?

Are you REALLY comfortable with a machine recount that changed the winning margin, before absentee ballots, by 75%? Do you think that any of these machines could have missed ballots that had clearly marked holes, but for whatever reason the light did not perceive them? Are you really comfortable in an election where the margin of victory is less than the margin of error of the machines?

We are not talking about hanging chads here-error rates are set for these machines based on ballots PROPERLY MARKED BUT NOT READ BY THE MACHINES.

We are not talking about the folks who the majority of the supremes felt should be fucked for not following direction. We are talking about folks who punched the chads clear through and the machines did not pick them up.

I am amazed, truly amazed, especially hearing today that at least 5 counties did not run the ballots through the machines for the mandatory recount, that you are just fine with the corruption that went down.

-- SydBarrett (dark@side.moon), December 16, 2000.

-- I'm Here, I'm There, (I'm Everywhere,@So.Beware), December 16, 2000.

Ever wonder where the PalmReader meme was born? ht tp://election.dos.state.fl.us/opinions/de2000/de00_11.html

This opinion from Mister Mysterious "L. Clayton Roberts Director, Division of Elections", parrot for Republican K.Harris, is where the Meme was bore. Once this was set into play, the Memes fed on it. Keyword is "properly marked punchcard".

Thus it is ASSUMED if the MA-chine did not count it, it was improperly marked. Problems arise from the items Syd mentioned. Thus the intent of this "opinion" is to deflect anything but what THEY (K.Harris and the Returds)deemed "properly marked". Anything not read by the MA-chine was thus not a real vote, how could it be using these made-up definitions? the MA-chine thus tossed-em. They set the ground rules, defined the terms, and set the procedures. And still they claimed foul? Geesh and they call Al Gore a whining baby?

FSC overruled these jerkweeds TWICE, duh.

BTW, here is the list of systems used in Florida by counties...http://elect ion.dos.state.fl.us/votemeth/cvs.shtml.

-- Doc Paulie (fannybubbles@usa.net), December 16, 2000.

Syd:

I am most comfortable with the first count, because when that one was done, nobody knew how close things were and there was no target to shoot at. I was less comfortable with the machine recount, especially after reading about the clouds of chad being chuffed out of these machines as they rescanned these ballots. I considered it pretty obvious that these ballots are just a bit too delicate to be handled, stacked, shuffled, and fed back through machines. This technology stinks. You yourself point out the change (about 1400 votes net) between machine counts. If you extrapolate this, I think you must agree that repeated machine counts of the same ballots would produce different numbers each time, and different winners at random.

But considering how very close it was, considering that one only needed to "reinterpret" a couple hundred votes out of 6 million, I was, and remain, *absolutely* convinced that whoever counts these ballots selects the winner of the election. And I am NOT comfortable with that, no matter who might end up winning. In my mind, any recount by hand, by any standards, cannot help boiling down to deciding whose mother judges the beauty contest.

I'll gladly agree that Gore had AT LEAST as good a chance as Bush to win any given recount just at random. The standards that were being applied were very much in Gore's favor, NOT because Gore "really got" more votes and we were just "finding legal votes" in the nonvote pile, but because of who was counting and which votes were being counted. When you combine statistical probabilities with unavoidable counter bias, the "winner" and the real (but unguessable) voters' intentions lose any connection with one another.

All I can say is, I believe if Gore had won both the original count and the recount, Bush would have conceded gracefully. I sincerely doubt Bush would have tried to cherry-pick a few Republican- controlled pro-Bush counties and started claiming that unless he got to "reinterpret" those votes according to his own rules, he was being robbed because the votes "were never counted". Integrity matters to me.

-- Flint (flintc@mindspring.com), December 16, 2000.

By the way, I agree with David Corn's theory, that if optical methods had been used statewide, Gore would have won, albeit narrowly. However, I prefer to believe in that case, Bush would have conceded gracefully, rather than un-conceding and trying to cherry-pick a few selected pro-Bush counties controlled by Republicans, to perform a customized vote interpretation in the hopes of convincing the public that anything else would be "unfair" because the votes "were never counted."

-- Flint (flintc@mindspring.com), December 15, 2000.

http://www.greenspun.com/bboard/q-and-a-fetch- msg.tcl?msg_id=004F9W

-- What (Flint@really.thinks), December 16, 2000.

Thanks. Flint.

-- SydBarrett (dark@side.moon), December 16, 2000.

What:

I don't think ballots the machines screwed up for any reason can be reliably deciphered. I don't like seeing people, especially party workers, presuming to divine the "intent of the voter" on such ballots by a laying on of the hands.

However, I think we can demonstrate that the *rate* of machine errors was not uniform statewide. Specifically, it was lowest where optical methods were used, and highest were punchcards were used. Further, punchcards were used in predominantly poor counties, which (with the exception of Cuban communities) tended to vote more for Gore. Clearly, if you are going to discard a percentage of random votes, you will reduce the nominal vote total for the candidate more popular where such discarding takes place.

Given the relative error rates, this will only make a difference in an extremely close election. The claim that more total voters *intended* to vote for Gore might very well be true. But probabilities don't give anyone the ability to "find" Gore votes "hidden" in invalid ballots. The machineries of Florida voting currently work against the Democrats in statewide elections. I'd like to see this fixed before the next election. I do NOT want to see it "compensated for" AFTER an election. That's cheating.

-- Flint (flintc@mindspring.com), December 16, 2000.

I don't think ballots the machines screwed up for any reason can be reliably deciphered. I don't like seeing people, especially party workers, presuming to divine the "intent of the voter" on such ballots by a laying on of the hands.

Are you saying, Flint, that Texas and Florida should make manual counts illegal?

§ 127.130. Manual Counting

(a) Electronic system ballots that are not to be counted automatically and the write-in votes not counted at the polling places shall be counted manually at the central counting station.

(b) If the automatic counting of electronic system ballots becomes impracticable for any reason, the manager may direct that the ballots be counted manually at the central counting station.

(c) The procedure for manual counting is the same as that for regular paper ballots to the extent practicable. The manager is responsible for the manual counting of ballots at the central counting station.

(d) Subject to Subsection (e), in any manual count conducted under this code, a vote on a ballot on which a voter indicates a vote by punching a hole in the ballot may not be counted unless:

(1) at least two corners of the chad are detached;

(2) light is visible through the hole;

(3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote; or

(4) the chad reflects by other means a clearly ascertainable intent of the voter to vote.

(e) Subsection (d) does not supersede any clearly ascertainable intent of the voter.

Acts 1985, 69th Leg., ch. 211, § 1, eff. Jan. 1, 1986.

Amended by Acts 1993, 73rd Leg., ch. 728, § 52, eff. Sept. 1, 1993.

-- (Tex@s.law), December 16, 2000.

http://www.capitol.state.tx.us/statutes/el/el012700.html

-- (Tex@s.law), December 16, 2000.

Texas:

Using hindsight, I find this legal language confusing. What do the framers mean by "impracticable"? Does this mean the machines broke, or what?

The rest of this list seemes to degenerate into meaninglessness. They start out by clearly saying that a vote will NOT count unless at least two chad corners are broken.

BUT, if they aren't and we can see light, then the vote also counts.

BUT, if there are no broken corners and no light, an indentation counts provided the voter made that indentation (and how do we tell?)

BUT, failing all that, if there is some OTHER indication of what the voter might have intended in that chad, we can still count the vote.

BUT, if the ballot fails to meet ANY of the above (increasingly hazy) requirements, we can STILL count the vote if the "intent of the voter" can be "clearly ascertained", whatever that means.

Now, I personally believe this is asking for trouble. What is to prevent the manager of the counting station from declaring a machine recount "impracticable" and then determining votes using Subsection (e), which basically says you *don't even need to consider the condition of the chad* to divine the voter's intent!

So OK, let's say one candidate's wife is the counting station manager. Let's say she "counts" votes using Subsection (e) as per this law, "finding" clearly ascertainable voter intent liberally enough so her husband wins. Does the loser have legal recourse under this law? If so, on what grounds?

I don't like this law.

-- Flint (flintc@mindspring.com), December 16, 2000.