Lesser known clause

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Posted by Ted ( on December 19, 2000 at 20:02:57:

In Reply to: Little known Constitutional clause posted by Todd on December 19, 2000 at 19:51:46:

The US Supreme Court elects the president through ability to discard any states' votes.

Read on:

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,
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
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
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
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
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
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
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
forcing the Florida court to abide by a deadline that everyone agrees is not
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
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
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 first went to court to stop the recount, the
mob in Miami that got paid Florida vacations for intimidating officials,
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
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
A: Read the opinions for yourself:
(December 9 stay stopping the recount), and
(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.

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