I will go through the decision and answer each seperately. In short this lawyer/writer is partially correct, but according to my reading is not fully accurate...and does mislead a bit.

Levine's Q&A is in red, my responses in black.

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.

Actually no this is not the case. The opinion is not addressing who wins and who gets the most votes. One could surmise such a conclusion and that may be an accurate assumption. But the opinion says nothing of the sort. It addresses one major question, namely the issue of due process and the standards involved in recounts.

 

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.

Very misleading statement. If you take the previous c comment on its face it implies that the justices held that this particular recount was legal and should be done. That is absolutely not the case. The majority said specifically that they were not addressing the constitutionality of recounts at all, but did imply that recounts generally are very reasonable. But they clearly wanted to differentiate their ruling from that question, and instead wanted to focus on, I say again, standards of recounts. In my humble opinion, the supremes were actually identifying the real problem as pointed out by republicans, namely that recounts in each county could not ensure uniformity under the law as the current case law (the Florida supreme court) had dictated. This was why 7 of 9 saw serious due process issues. The other 2 were of the opinion that the interpretation of Florida's legislature was reasonable and within the confines of state judicial power. The 5 -4 split arises when the remedy is decided, namely that the current attempts to recount should or should not be allowed to continue. The majority held that the deadline as dictated by federal law (a debatable issue whether that was not flexible) was a clear and decisive deadline, one that was not subject to movement or amendment under this situation.

 

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.

This is partially true. The court held that the evidence at trial did present (and they seemed to affirm the Florida courts' ruling) that the machines are not accurate beyond fault and are subject to serious flaws. This lays the groundwork for future cases in which recounts are requested. This dicta (not a holding but a serious instruction by the court) will ensure that future recounts will be more possible.

However the court did not hold that there were legal votes that should not be counted....at least the majority did not hold that. They avoided the topic entirely, and stayed on course for an opinion rooted in standards and the Florida supreme courts' ruling regarding such. To hold that there was as a matter of fact that there were indeed votes not being counted would be to rule in favor of the plaintiffs (gore) without examination of the evidence (the ballots), something the court would simply not do. They implied that it may be the case that the plaintiff's position was accurate, but could not hold that gore's argument that there were legal uncounted ballots was the case as a matter of fact.

 

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.

I can neither confirm or deny the breadth of these previous editorial comments. It may be the case, but that is not what is at issue here. One thing is certain, this court usually upholds state sovereignty, but in this case chose not to. It could be argued that this is inconsistent, however it could also be argued that the due process issue was at issue and needed to be addressed. I am of the opinion that it is a stretch to say that the "intent of the voter" standard was not subject to serious constitutional flaws. The remedy would have been, again - in my opinion, to do what the minority requested, which was to remand and have the Florida supreme court set that exact standard and allow the count to continue.

It should be noted that one distinction that the majority made was that overvotes and undervotes were being handled differently as well. In the overvote case (where a voter had voted for what seemed to look like 2 candidates simultaneously) were not to be included in the recount according to the Florida supreme court - whereas the undervotes where. The majority saw this as unequal in that in both overvotes and undervotes - a clear intent may be decipherable, and yet they were not being treated the same way. As much as I do not like the overall holding of the majority, this is a strong argument for due process violations.

 

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.

Again - misleading. This sort of speak lays the groundwork for conspiracy theorists, and before that starts spinning out of control, let's examine what the court did and did not say. This case could be very exclusive, but there is no "gore exception"....nor did the court imply this in any form. It did address the standardization issue (I am not including overall analysis of Rehnquist, Thomas and Scalia - who went the furthest in finding fault with the recount procedures)...and this process was in the eyes of 7 justices unconstitutional. That much is pretty certain. This case will serve as a beacon for all electoral reform so that we do not revisit this issue. I agree with the court that standards need to be consistent. I simply disagree that the remedy was to hold that the dec.12 deadline was not adjustable under extreme circumstances when accuracy of voting was at stake. That was a decision that 5 justices made, and is the basis for the controversy. Reader beware, don't believe the hype to the contrary. This lawyer who authored these q & a had an agenda and that seems to not be accuracy.

 

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.

That is also not true. The majority held that the Florida supreme court never did nor should have "changed the rules"....whatever that is supposed to mean. The court held - and I'll repeat this again so that it is understood, that the recount did not have constitutionally - guaranteed protections against arbitrary enforcement - meaning that if the counties counted differently in any way that devalued other voters - thus was an equal protection violation under the constitution. Pretty simple analysis really.

 

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.

The most accurate thing this writer has said so far.

 

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"

I guess what this writer is trying to say is that the court held that the Florida supreme court should have clarified what their interpretation of the "intent of the voter" language from the statute meant exactly. That is not changing the rules in any way. The role of the judiciary is to interpret the laws set out by congress. If the law is vague, the court must interpret. The sup. Court (us) held that the Florida court's interpretation did not pass constitutional must for lack of specificity.

 

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.

These last three q & a (obviously staged by the writer for effect) are ridiculous and misleading. He is trying very hard to confuse the reader, so that clarity is impossible. Look - here is the deal. If the Florida legislature had said "the intent of the voter is determined by doing 'a' and 'b'"...etc and so on, then the supreme court could not or perhaps would have had a harder time dismantling the Florida sup. Court's ruling. However, due to a lack of clarity, they tore it apart. This writer is stating that the votes could not have been counted no matter what is not true. The only hurdle would have been time - assuming the standard had been set. Also the Florida supreme court would have been smart to include overvotes and undervotes to also avoid the due process violation. They didn't and therefore here we are.

 

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.

You know- I am a lefty type - left of democrat, so excuse me if I take on another pro-democrat or lefty type...but this writer is ridiculous. The supreme court was not asked to address overall ballot issues throughout the nation and the mechanical standards. I am beginning to wonder if this writer is a lawyer, or perhaps he didn't read the opinion....I am starting to suspect that he or she is making up this analysis as he or she goes along. It does not jive with the written opinion in almost every way.

 

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.

I am not trying to defend the supreme court....but again this is false. Again, the court handles one big issue at a time, and the standards question is what they tackled. The case before them contained no evidence, not a shred of evidence regarding butterfly ballots, or anything else of that nature. If it had, the quality and weight of such evidence would be included in the opinion. However it was not. False, false, false.

 

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.

This is editorial on the part of the writer. He or she may be correct, but it is a matter of perspective. However to state unequivocally that the problem wasn't this or was that is very misleading. He or she is couching the answer in entirely the wrong language. Again - I am becoming increasingly concerned that the writer is not what he claims to be - or at least is not attempting to educate the reader. Instead it seems that the writer is simply interested in biased preaching. No problem with that, but don't give a sermon and call it an objective lecture. Don't kick me and tell me you tripped. Be honest.

Respondent's note: At this point i have concluded that the writer is not attempting to analyze with any clarity the opinion of the supreme court, majority or minority.

Therefore, stay tuned to Raptorial for I will submit a more clear, concise analysis, based on legal arguments, not hype.

Peace.

Paul Slusher