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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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