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Supremes explained


Is this what they call 'case law"?
> >
> >
> >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
> >or 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.
> >
> >  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 the year 2000, the guy with the most US Supreme Court votes wins.
> >
> >  Q:  Is there any way to stop the Supreme Court from doing this
again?
> >
> >  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
> >ne day we can hope to return to the rule of law.
> >
> >  Q:  What do I do now?
> >
> >  A:  E-mail 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 American people.
> >
> >         --  MarkLevineEsq@aol.com

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