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?
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?
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.
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.
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.
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?
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.
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?
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?
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.
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.