Post by jillboston on Dec 12, 2015 23:27:59 GMT -5
We're closing in on the 15th anniversary of Gore's concession on 12/13. I remember this making the email rounds at my firm back then, printed it out, misplaced it for years and came upon it again recently. Despite Scalia's admonition to "Get over it" I haven't. It was an awful time and as bad as I thought George W. Bush's presidency might be it was much much worse.
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 U.S. 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 nine justices believed the hand counts were legal and should be done. Indeed, all nine found "Florida's basic command for the count of legally cast votes is to consider the ‘intent of the voter.'" "This is unobjectionable as an abstract proposition." In fact, "uniform rules to determine intent" are not only "practicable" but "necessary."
Q: So that's a complicated way of saying that "divining the intent of the voter" is perfectly legal?
A: Yes.
Q: Well, if hand counts are fine, why were they stopped? Did the recounts already tabulate all the legal ballots?
A: Nope. The five conservative justices clearly held (and all nine 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 never will be.
Q: Oh. Does this have something to do with states' rights? Don't conservatives love that?
A: 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 control their own state elections when it can result in Gore being elected president. This decision is limited to only this situation.
Q: C'mon. They didn't really say that. You're exaggerating.
A: Nope. The Supremes held, "Our consideration is limited to the present circumstances, as the problem of equal protection in election processes generally presents many complexities."
Q: What complexities?
A: They didn'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: Wrong. The U.S. Supreme Court made clear that the Florida Supreme Court did not change the rules of the election. But the U.S. Supreme Court found this failure of the Florida Court to change the rules was wrong.
Q: Huh?
A: The Florida Legislature declared that the only legal standard for counting a 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 U.S. 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 Florida Court had adopted new standards, I thought it would have been overturned.
A: Right. You're catching on.
Q: Wait. If the Florida Court had adopted new standards, it would have been overturned for changing the rules. And since it didn't, it's being overturned for not changing the rules? That means that no matter what the Florida court did, legal votes could never be counted if they would end up with a possible Gore victory.
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 percent of the votes. Some, like the punch-card systems in largely Democratic-leaning counties, record only 97 percent of the votes. So about 3 percent of Democratic-leaning 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 percent of Democratic-leaning ballots (about 170,000) thrown in the trash can in Florida. That "complexity" was not a problem.
Q: Was it the butterfly ballots that tricked more than 10,000 Democrats to vote for Buchanan or both Gore and Buchanan?
A: Nope. The courts have no problem believing that Buchanan got his highest, best support in a precinct consisting of Jewish old-age homes with Holocaust survivors, who apparently have changed their minds about Hitler.
Q: Yikes. So what was the serious equal-protection problem?
A: The problem was that somewhat less than 0.01 percent of the votes (fewer than 600) may have been determined under ever-so-slightly different standards by judges and county officials recording votes under strict public scrutiny, as Americans have done for more than 200 years. The single judge overseeing the process might miss a vote or two.
Q: A single judge? I thought the standards were different. I thought that was the whole point of the Supreme Court opinion.
A: Judge Terry Lewis, who received the case upon remand from the Florida Supreme Court, had already ordered each county to fax him their standards so he could be sure they were uniform. Republican activists repeatedly sent junk faxes to Lewis to prevent counties from submitting those standards in a way that could justify the vote counting. That succeeded in stalling the process until Justice Scalia could stop the count.
Q: Hmmm. Well, even if those less than 600 difficult-to-tell votes are thrown out, you can still count the other 170,000 votes (or just the 60,000 of them that were never counted) where everyone, even Republicans, agrees the voter's intent is clear, right?
A: Nope.
Q: Why not?
A: No time.
Q: I thought the Supreme Court said that the Constitution was more important than speed.
A: It did. It said, "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."
Q: That makes sense. So there's time to count the votes when the intent is clear, and everyone is treated equally then. Right?
A: No. The Supreme Court won't allow it.
Q: But they just said that the Constitution is more important than speed!
A: You forget. There is the "Gore exception."
Q: Hold on. No time to count legal votes where everyone, even Republicans, agrees the intent is clear? Why not?
A: Because they issued the opinion at 10 p.m. on Dec. 12.
Q: Is Dec. 12 a deadline for counting votes?
A: No. Jan. 6, 2001, is the deadline. In the presidential election of 1960, Hawaii's votes weren't counted until Jan. 4, 1961.
Q: So why is Dec. 12 important?
A: After Dec. 12, Congress can't challenge the results.
Q: What does the congressional role have to do with the Supreme Court?
A: Nothing. In fact, as of Dec. 13, some 20 states still hadn't turned in their results.
Q: But I thought --
A: The Florida Supreme Court had said earlier that it would like to complete its work by Dec. 12 to make things easier for Congress. The U.S. Supreme Court is trying to "help" the Florida Supreme Court 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 Dec. 12.
A: They would have made it, but the five conservative U.S. Supreme Court justices stopped the recount on Dec. 9.
Q: Why?
A: Justice Scalia said some of the votes may not be legally counted.
Q: So why not separate the votes into piles -- indentations for Gore, hanging chads for Bush, votes that everyone agrees went to one 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! An intelligent, rational solution! The U.S. Supreme Court rejected it. In stopping the count on Dec. 9, they held that such counts would likely produce results showing Gore won, which would cause "public acceptance," and that would "cast a cloud" over Bush's "legitimacy" and thereby harm "democratic stability."
Q: In other words, if America knows the truth that Gore won, they won't accept the U.S. Supreme Court making Bush president?
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 is the first time a court has ever refused to count votes in order to protect one candidate's "legitimacy" over another's.
Q: Aren't these conservative justices against judicial activism?
A: Yes, when liberal judges are perceived to have done it.
Q: Well, if the Dec. 12 deadline is not binding, why not count the votes afterward?
A: The U.S. Supreme Court, after conceding the Dec. 12 deadline is not binding, set Dec. 12 as a binding deadline at 10 p.m. on Dec. 12.
Q: Didn't the U.S. Supreme Court condemn the Florida Supreme Court for arbitrarily setting a deadline?
A: Yes.
Q: But, but --
A: Not to worry. The U.S. Supreme Court does not have to follow laws it sets for other courts.
Q: Who caused Florida to miss the deadline?
A: The Bush lawyers who, before Gore filed a single lawsuit, went to court to stop the recount. The rent-a-mob in Miami that received free Florida vacations for intimidating officials. The constant request for delay by Bush lawyers in Florida courts. And, primarily, the U.S. Supreme Court, which refused to consider Bush's equal-protection argument on Nov. 22, then stopped the recount entirely on Dec. 9, and then, at 10 p.m. on Dec. 12, suddenly accepted the equal-protection claim they had rejected three weeks earlier, but complained there was no time left to count the votes before midnight that evening.
Q: So who is punished for this behavior?
A: Gore. And the 50 million-plus Americans who voted for him, some 540,000 more than voted for Bush.
Q: You're telling me that Florida election laws and precedents existing for 100 years are now suddenly unconstitutional?
A: Yes. According to the Supreme Court, the Florida Legislature drafted the law in such a messy way that the votes can never be fairly counted. Since Secretary of State Katherine Harris never got around to setting more definitive standards for counting votes, Gore loses.
Q: Does this mean the election laws of any of the other 49 states are unconstitutional as well?
A: Yes, if one logically applies the Supreme Court opinion. Thirty-three states have the same "clear intent of the voter" standard that the U.S. Supreme Court found was illegal in Florida
Q: Then why aren't the results of 33 states thrown out?
A: Um. Because. ... um. ... they don't say. ....
Q: But if Florida's certification includes counts expressly declared by the U.S. Supreme Court to be unconstitutional, we don't know who really won the election in the state, right?
A: Right. But an analysis by the Miami Herald extrapolates from the 170,000 uncounted votes to show that Gore won the state, maybe by as much as 23,000 votes.
Q: So what makes Bush president?
A: Since there was no time left for a recount, the U.S. Supreme Court decided to choose itself who will be president and picked Bush to win by a vote of 5 to 4, based on the flawed count it just determined to be unconstitutional.
Q: That sounds like rank favoritism! Did the justices have any financial interest in the case?
A: Scalia's two sons are both lawyers at law firms working for Bush. Thomas' wife is collecting applications for the Bush administration.
Q: Why didn't they recuse themselves?
A: If either had recused himself, the vote would have been 4-4, the Florida decision allowing recounts would have been affirmed, and Scalia said he feared that would mean a Gore win. Rehnquist and O'Connor had both said that they wanted to retire but would only do so if a Republican were elected; when O'Connor heard from early exit polls that Gore had won Florida, she responded that the news was "terrible."
Q: I can't believe the justices acted in such a blatantly political way.
A: Read the opinions for yourself. The Dec. 9 stay stopping the recount. Here's the Dec. 12 opinion.
; ;
Q: Isn't anyone on the U.S. Supreme Court a rational follower of the rule of law?
A: Yes. Read the four dissents. Excerpts: Justice John Paul Stevens (Republican appointed by Ford): "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
Justice David Souter (Republican appointed by Bush): "Before this Court stayed the effort to [manually recount the ballots] the courts of Florida were ready to do their best to get that job done. There is no justification for denying the state the opportunity to try to count all the disputed ballots now."
Justice Ruth Bader Ginsburg (Democrat appointed by Clinton): Chief Justice Rehnquist would "disrupt" Florida's "republican regime." [In other words, democracy in Florida is imperiled.] The court should not let its "untested prophecy" that counting votes is "impractical" "decide the presidency of the United States."
Justice Steven Breyer (Democrat appointed by Clinton): "There is no justification for the majority's remedy. ..." We "risk a self-inflicted wound -- a wound that may harm not just the court, but the nation."
Q: So what are the consequences?
A: The guy who got the most votes in the U.S., in Florida and under our Constitution (Gore) will lose to America's second choice (Bush).
Q: I thought the guy with the most votes wins.
A: That's true, in a democracy. But in America in 2000, the guy with the most U.S. Supreme Court votes wins. That's why we don't need to count the people's votes in Florida.
Attorney Mark H. Levine is a member of the California Bar, a graduate of Harvard College and Yale Law School.
During the first week of November that year, my father was dying (literally, I was at his deathbed, turning off life support) so I had larger concerns. And then in the immediate aftermath through Nov and Dec, I was in a total haze and also busy screwing up my first marriage, lol. So I have no memory of the election travesty at all and was incapable of caring at the time. I actually supported Bush anyway, so I had no energy to expend caring about the drama that I only knew of faintly in the news.
In the years since, as I pieced it together, I mustered up a fair amount of dismay that the election process was tampered with. But seeing it all laid out like this is ragevomit-inducing. Reading Scalia's words, and the clearly biased and unjust reasoning that shaped a nation for a decade and set the stage for the war on women or the unholy marriage of the GOP to the Religious Right, is utterly maddening. Like, I feel metaphysical despair reading the opinion and seeing the... flippant? or maybe arbitrary? attitude toward a massive change to the democratic traditions and origins of our country.
PS: Scalia will be there deciding a major abortion case and a major Native American tribal rights vs. a company's rights case this SCOTUS season.
Thank you for this link. The portion of it about Jeb Bush's role in stealing the right to vote from thousands of minorities through his "felon" voter purges and fucked up reinstatement procedures has me in a rage this morning.
Fuck you Jeb! I can't wait for the day that your polling numbers drop to 0 and you drop out of the race.
I was in Nashville and waited forever at the acceptance speech. But of course gore was massively delayed, and I had an early morning exam.
It was already fucked up to be among party insiders and supporters and they cheered and then were just wtf.
It wasn't until a few years later, after I'd already had friends shipped off to war that I really grasped what the sc had done. I'm just as angry remembering it today as I was then. Maybe more as I've witnessed more lives and families destroyed.
I remember running around that election day on my college campus, doing get out the vote efforts. I remember seeing them call Florida for Gore when I stopped in somewhere with a TV for a moment. I remember matter seeing they'd taken than back. I remember telling people, before Bush was appointed, that if he won I was afraid we would have another war in Iraq and another recession (my dad lost his job during the first Bush's recession). It sickens me to think of how different things could be had the democratic process been allowed to proceed and the SCOTUS not chosen to disenfranchise more than one hundred thousand voters. I've joked that I lost my virginity soon after that election because I figured the world was going to hell so I might as well join it. But mostly, I remember the despair and helplessness I felt about all of this.
I was in Germany visiting a friend and doing some traveling on my own on the week of the election. I don't speak German and Internet news was barely a thing. I'd have to wait for her to listen, translate, and then I'd have to explain things back to her, like what the electoral college was. The entire week, because the news was so fucking bizarre, I couldn't shake the feeling that there was something getting lost in translation, that I was missing out on some critical piece of information that would make it all make sense and tell me who the president was. When I got to the airport five days later, I picked up a whole bunch of English papers and magazines, thinking that finally, I would know who the president was. I was quite disappointed to find out that nobody had been holding out on me, and Florida was truly an epic clusterfuck.
I was in Germany visiting a friend and doing some traveling on my own on the week of the election. I don't speak German and Internet news was barely a thing. I'd have to wait for her to listen, translate, and then I'd have to explain things back to her, like what the electoral college was. The entire week, because the news was so fucking bizarre, I couldn't shake the feeling that there was something getting lost in translation, that I was missing out on some critical piece of information that would make it all make sense and tell me who the president was. When I got to the airport five days later, I picked up a whole bunch of English papers and magazines, thinking that finally, I would know who the president was. I was quite disappointed to find out that nobody had been holding out on me, and Florida was truly an epic clusterfuck.
I can just picture you like "what?!? No, that can't be right. Where's my German to English dictionary? Is there an app for that?"
Post by Velar Fricative on Dec 13, 2015 13:29:03 GMT -5
I voted for Gote too, and it was my first election of any kind since I turned 18 earlier that year. As confused as I was (and still am) by that election, at the time I wasn't some super hardcore D so I was mostly meh and figured Bush would be fine. Politics just didn't seem as polarizing as they are now 15 short years ago. I was more staunchly D in 2004 after Iraq.
And man, I'm not saying we would definitely be in a wonderful place right now if Gore were President, but it would be interesting to see where we would be. Would Obama have still become President? Would the Tea Party have been a thing? Would we have had the Great Recession? Would things be less shitty in general right now re: race relations, gerrymandering, civil liberties, reproductive rights, climate change, etc.? I don't know the answers.
Post by CallingAllAngels on Dec 13, 2015 17:55:21 GMT -5
There was a bar we always went to in grad schools on Tuesdays for $3 pizza. I remember sitting there and watching them call it for Gore. Then I went home and spent all night watching Tom Brokaw and Tim Russert try to explain what was going on. It is a night I will never ever forget.
My in-laws were in Volusia county and as Bush supporters they weren't part of the disenfranchised. As a Gore supporter, I saw and heard a lot of screwed up crap going on down there that they just shrugged off. As Gore supporters, we followed what was going on very closely and were appalled (and felt very wronged) at the decision. At the fact that the Court even took the case in the first place, actually.
Because of what happened in 2000 (and the fact that he was a union attorney at the time) my DH and I were very involved in the Ohio Bush/Kerry campaign in 2004 (to the point where my 16 year old son dressed as a campaign billboard...by his own choice. lol.) What we saw going on in Ohio in '04 (and what my mother dealt with in Nevada as well - even though she was also a Bush supporter.) was so reminiscent of Florida in 2000 that to this day I swear that Bush has stolen not one but TWO Presidential campaigns and that he was not honestly voted in either the first time or as an incumbent. The "Obummers" have *nothing* on Bush's and the Republicans electoral antics during that time under Bush II.
Post by tacosforlife on Dec 13, 2015 20:28:09 GMT -5
I find reading all this stuff really fascinating. I voted for the first time (for Gore) in 2000, and I remember my friends being upset. But I was kind of disengaged from the whole thing - I had a huge project due the day after the election, so I spent the night consumed with that. Plus I lived in a single and didn't pay for cable, so I was kind of clueless.
Then I got seriously ill a few days later. I spent the next several weeks in bed, sleeping and doing homework that my friends brought me home from class. Still with no TV. The icing on the cake was the naïveté that I (and a lot of others) had that there wasn't that much difference between the Bush and Gore.
I am not sure I really began to understand the significance of the results until March of 2003.
I'll one up your first time vote. It was mine, too, but for a county that was ordered to stop the recount. They also lost some ballots.
We used the county's voting machines for student council elections. They're the infamous butterfly ballot. It wasn't that hard to vote correctly, in the punch sense, but it was probably quite easy to misalign.
I'm damn sure my absentee was never counted. When it's that close they should be.
My in-laws were in Volusia county and as Bush supporters they weren't part of the disenfranchised. As a Gore supporter, I saw and heard a lot of screwed up crap going on down there that they just shrugged off. As Gore supporters, we followed what was going on very closely and were appalled (and felt very wronged) at the decision. At the fact that the Court even took the case in the first place, actually.
Because of what happened in 2000 (and the fact that he was a union attorney at the time) my DH and I were very involved in the Ohio Bush/Kerry campaign in 2004 (to the point where my 16 year old son dressed as a campaign billboard...by his own choice. lol.) What we saw going on in Ohio in '04 (and what my mother dealt with in Nevada as well - even though she was also a Bush supporter.) was so reminiscent of Florida in 2000 that to this day I swear that Bush has stolen not one but TWO Presidential campaigns and that he was not honestly voted in either the first time or as an incumbent. The "Obummers" have *nothing* on Bush's and the Republicans electoral antics during that time under Bush II.
I'm in volusia county. Not a good first voting experience.
My in-laws were in Volusia county and as Bush supporters they weren't part of the disenfranchised. As a Gore supporter, I saw and heard a lot of screwed up crap going on down there that they just shrugged off. As Gore supporters, we followed what was going on very closely and were appalled (and felt very wronged) at the decision. At the fact that the Court even took the case in the first place, actually.
Because of what happened in 2000 (and the fact that he was a union attorney at the time) my DH and I were very involved in the Ohio Bush/Kerry campaign in 2004 (to the point where my 16 year old son dressed as a campaign billboard...by his own choice. lol.) What we saw going on in Ohio in '04 (and what my mother dealt with in Nevada as well - even though she was also a Bush supporter.) was so reminiscent of Florida in 2000 that to this day I swear that Bush has stolen not one but TWO Presidential campaigns and that he was not honestly voted in either the first time or as an incumbent. The "Obummers" have *nothing* on Bush's and the Republicans electoral antics during that time under Bush II.
Obama haters can say what they wish. But he won both elections by landslides. Cam Kerry (John Kerry's brother) was a partner at my firm and started the attorney voter protection project after 2000. I've been stationed in NH as a voter protection attorney the last 3 Presidential elections. It's a long day but I will never stand by to see 2000 again.
Because I'm tried and feeling argumentative, I'm just looking at this and thinking how many lives could have been spared if Gore had won that election court case. I wonder right now, as dead Syrian refugees wash up on the shores of european countries, whether Bush wishes Gore had won, too.
CNN: This just in from Broward county... Me: Whooo (remember, college) I'm from there CNN: ....lost ballot boxes Me: fully silenced, blending into the crowds
My in-laws were in Volusia county and as Bush supporters they weren't part of the disenfranchised. As a Gore supporter, I saw and heard a lot of screwed up crap going on down there that they just shrugged off. As Gore supporters, we followed what was going on very closely and were appalled (and felt very wronged) at the decision. At the fact that the Court even took the case in the first place, actually.
Because of what happened in 2000 (and the fact that he was a union attorney at the time) my DH and I were very involved in the Ohio Bush/Kerry campaign in 2004 (to the point where my 16 year old son dressed as a campaign billboard...by his own choice. lol.) What we saw going on in Ohio in '04 (and what my mother dealt with in Nevada as well - even though she was also a Bush supporter.) was so reminiscent of Florida in 2000 that to this day I swear that Bush has stolen not one but TWO Presidential campaigns and that he was not honestly voted in either the first time or as an incumbent. The "Obummers" have *nothing* on Bush's and the Republicans electoral antics during that time under Bush II.
Obama haters can say what they wish. But he won both elections by landslides. Cam Kerry (John Kerry's brother) was a partner at my firm and started the attorney voter protection project after 2000. I've been stationed in NH as a voter protection attorney the last 3 Presidential elections. It's a long day but I will never stand by to see 2000 again.
That was DH's role in the election as well. We were in Ohio and it was ugly, watching all the antics Blackwell as Secretary of State was pulling in his attempts to disenfranchise Democrat voters (primarily Cleveland and Toledo, as the two Dem strongholds left in the state). Simple things like changing the requirements of the ballot size and paper weight in the weeks before the elections and then giving waivers to some but not other counties. He was dragged to court a few times in the months riding up to the elections. Fun times.
Washington has mail-in ballots. So much easier to deal with. They mail you the ballot, you mail it back or drop it off at a ballot box in a community location near you.