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supreme court decision and 'the law'

by franka

18 December 2000 20:34 UTC






    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

                 ANDRE  GUNDER  FRANK

         1601 SW  83rd Avenue, Miami, FL.  33155 USA
      Tel: 1-305-266  0311   Fax:  1-305  266 0799
                E-Mail :  franka@fiu.edu
   Web/Home Page:  http://csf.colorado.edu/archive/agfrank
    



---------- Forwarded message ----------
Date: Sun, 17 Dec 2000 14:19:51 -0600
From: Marianne Brun <manni@snafu.de>
To: stefan brun <brun_stefan@hotmail.com>, michael brun <mjbrun@ilstu.edu>,
     michael brun <brun@prairienet.org>, mark sullivan <sullivan@pilot.msu.edu>,
     marina preussner <MAPP39@aol.com>, Maria Pease <mlpease@ci.atlanta.ga.us>,
     AG Frank <franka@fiu.edu>, mark freeman <FAD99@aol.com>,
     rachel rubin <rrubin@tigger.cc.uic.edu>, politics@redshift.com,
     arun chandra <arunc@evergreen.edu>, david friedman <david@friedart.com>,
     paul musial <pmusial@ccc.edu>, lisa fay <lfay@prairienet.org>,
     srwisema@uiuc.edu, penny hanna <hannape@knight.cmi.k12.il.us>,
     Deborah Langerman <Djlejrebr@aol.com>,
     Reri Thomson <100334.2765@CompuServe.com>, Ulf Thomson <Uetho@cs.com>
Subject: supreme court decision (last fwd on subject)

Dear Friends - this is long, yet such a lovely. logical explanation that it
is worth  
reading at least some of it.............Manni
 

>Subject: Explanation of Supreme Court decision
> 
> 
>>Here's a quick and easy-to-read synopsis of yesterday's ruling.
>>  Thanks Mark Levine for preparing this Q and A.
>> 
>> 
>>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 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 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 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
>>rent-a-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?
>> 
>>A:  Yes 
>> 
>>Q:  And the laws of 50 states that allow votes to be cast or counted
>>differently are unconstitutional?
>> 
>>A:  Yes.  And 33 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
>>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)
>>http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf          (December
>12 
>>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
>>2000, the guy with the most US Supreme Court votes wins.
>> 
>>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 to
>ensure 
>>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 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:  Email 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.
>> 
>> 
>>Mark H. Levine 
>>Attorney at Law 
>> 
> 
> 
> 
> 
> 
> 
> 
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