"WE HOLD THESE TRUTHS"

A List of States and their Electoral College Votes for President - All determined by the majority of votes cast for a candidate BY THE PEOPLE VOTING IN THAT STATE WITH ONE EXCEPTION ***.

Total: 538; Majority Needed to Elect: 270

"Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing however is certain. Although we may never know the winner with complete certainty, 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."
            -- from dissent of Justice Stevens, joined by Justices Breyer and Ginsburg

"Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election."
            -- from dissent of Justice Breyer, joined in part by Justices Stevens, Ginsburg and Souter

"This decision will leave in place a vote tally that, by the court's own logic, is constitutionally flawed," said Sen. Patrick J. Leahy, Vermont Democrat. "It will leave the final counting to journalists and scholars rather than election officials. A full and accurate count now would have been far better for the nation than to learn later that the wrong candidate has been certified."

The Rev. Jesse Jackson, who threatened to take his fight "into the streets" and trigger "a civil rights explosion" if the high court cleared the way for Mr. Bush's election, said yesterday that he would have the disputed Florida ballots counted to prove that Mr. Gore was the real winner of its 25 electoral votes and thus should be president. "No matter who the Supreme Court crowns, we will know before January the 20th that Gore got most of the votes," Mr. Jackson said yesterday. [Washington Post 12/14/00]

Equal protection applies ONLY to standards used for hand counting ballots, but not to greatly differing quality and accuracy of voting machines, butterfly ballots or tampering with ballot application forms.

JUSTICE SCALIA: "This court is riddled with conflicts of interest. Clarence's wife, Ginny, is over at the Heritage Foundation gathering conservatives' résumés for possible appointments in the new administration. My son is a partner at Ted Olson's law firm. Another son just got hired by another law firm working for Bush. But if I had recused myself, there would have been a tie. And then those radicals on the Florida Supreme Court could have been affirmed. And President Gore might have made Ruthie the chief."
            -- from Maureen Dowd's piece, "The Bloom Is Off the Robe" [NYTimes 12/13/00]

twanda@gendergappers.org       

2000-051

Copyright 2000 Renee T. Louise and Ruth M. Sprague, Ph.D. These articles may be republished for noncommercial use only, provided that they are copied intact, and that this copyright notice is attached. Address all queries to: twanda@gendergappers.org.

G e n d e r G a p p e r s   ^{T M}   

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

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/10428.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.

RETURN TO TEXT