to Oral Argument w/text & pictures: Dec. 11, 2000.
The U.S. Supreme Court, in a 5-4 decision, ordered an end to
Florida recount, holding that any such recount will not meet "minimal
Stopping the recount: The opinion left George
W. Bush the victor in Florida, and therefore the winner of the 271
electoral votes nationwide needed to become President of the United
States. The nine justices issued a total of six opinions; an unsigned
per curiam opinion, a concurrence and four dissents. The controlling
unsigned opinion - reflecting the opinion of five justices, Chief
Justice William Rehnquist and Justices Antonin Scalia, Clarence
Thomas, Anthony Kennedy and Sandra Day O' Connor - relied upon the
equal protection and due process clauses of the Constitution, in
that those provisions could not be met by a recount procedure by
December 12, the date the opinion said the Florida legislature had
set as the state's deadline.
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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
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,
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
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,
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
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
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.
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.
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
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%
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
more than 20,000 Democrats to vote for Buchanan or Gore and
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?
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
Q: What does the Congressional role have to do with the Supreme
Q: But I thought ---
A: The Florida Supreme Court had earlier held it would like to
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
votes counted by December 12.
A: They would have made it, but the five conservative justices
the recount last Saturday.
A: Justice Scalia said some of the counts may not be legal.
Q: So why not separate the votes into piles, indentations for
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 reduce "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?
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
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
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?
Q: But, but --
A: Not to worry. The US Supreme Court does not have to follow
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?
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
standard that the US Supreme Court found was illegal in Florida.
Q: Then why aren't the results of 33 states thrown out?
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
won Florida by about 20,000 votes (excluding the butterfly ballot
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
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
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
Q: I can't believe the justices acted in such a blatantly political
A: Read the opinions for yourself:
(December 9 stay stopping the recount), and
(December 12 final opinion)
Presidential Election 2000, Oral Argument Coverage: listen to
the oral argument before the
U.S Supreme Court w/text and pictures; find continually updated coverage of
the cases pending
before the United States Supreme Court.
Go to: http://www.callyourlawyers.com/hpol.html
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
Q: Is there any way to stop the Supreme Court from doing 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 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 one 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. Well, W won in 2004.