<nettime> 'The Gore Exception' - updated version

[Jonathan Prince <jonathan@killyourtv.com>]

Pass this along to friends...

jp

---

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

Date: Tue, 19 Dec 2000 06:35:46 EST
From: MarkLevineEsq@AOL.COM
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@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.

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

..
Jonathan Prince          : The More Evil
jonathan@killyourtv.com  : Of Two Lessers...
http://KillYourTV.com    : http://www.GWBushSucks.com
........................................................
'When I was coming up, it was a dangerous world, and you
knew exactly who they were. It was us versus them, and
it was clear who them was. Today, we are not so sure who
the they are, but we know they're there.' - GW Bush

#  distributed via <nettime>: no commercial use without permission
#  <nettime> is a moderated mailing list for net criticism,
#  collaborative text filtering and cultural politics of the nets
#  more info: majordomo@bbs.thing.net and "info nettime-l" in the msg body
#  archive: http://www.nettime.org contact: nettime@bbs.thing.net