# "Legal" explanation of Supremes' wrongness? **URL:** \ **Category:** Great Debates\ **Created:** [December 18, 2000, 11:22pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256 "2000-12-18T23:22:42Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![lissener](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lissener/32/6139_2.png) [@lissener](https://boards.straightdope.com/u/lissener)\ **Post date:** [December 18, 2000, 11:22pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/1 "2000-12-18T23:22:42Z")
This email is making the rounds (I’ve received two copies of it). Anyone here have any comment on it? > [@](#): > > **A LAYMAN’S GUIDE TO THE SUPREME COURT DECISION IN BUSH V. GORE 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, 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, 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 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 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 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 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, 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 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](http://frwebgate.access.gpo.gov/supremecourt/00-949_dec12.fdf) (December 9 stay stopping the recount), and [http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf](http://www.supremecourtus.gov/opinions/00pdf/00-949.pdf) (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. > > Q: Is there any way to stop the Supreme Court from doing this again? > > 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: E-mail 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.\*\* ---
**Author:** ![VarlosZ](https://avatars.discourse-cdn.com/v4/letter/v/d78d45/32.png) [@VarlosZ](https://boards.straightdope.com/u/VarlosZ)\ **Post date:** [December 19, 2000, 2:44am UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/2 "2000-12-19T02:44:36Z")
Well it simplifies many of the legal issues and is blatantly partisan, but I really can’t pick it apart too much since it’s basically correct. Scalia was helping the Bush lawyers with their argumuments during the hearing. To put it politely, that’s fucking ridiculous. I really am very disappointed with Scalia. I’ve always disagreed with most of his decisions, but up until now he’s always given the impression that he genuinely cares **only** about interpreting the constitution literally (and I mean word for word exactly). Now . . . well, lets just say I hope he has fun walking the streets of 11th Avenue with all the other whores. ---
**Author:** ![KSO](https://avatars.discourse-cdn.com/v4/letter/k/f07891/32.png) [@KSO](https://boards.straightdope.com/u/KSO)\ **Post date:** [December 19, 2000, 3:08pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/3 "2000-12-19T15:08:48Z")
This e-mail leaves out the part about how if you flash your headlights at an oncoming car with its headlights off, the other driver will follow you home and chop your head off. ---
**Author:** ![lissener](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lissener/32/6139_2.png) [@lissener](https://boards.straightdope.com/u/lissener)\ **Post date:** [December 19, 2000, 4:22pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/4 "2000-12-19T16:22:28Z")
> [@](#): > > \*Originally posted by KSO \* > \*\*This e-mail leaves out the part about how if you flash your headlights at an oncoming car with its headlights off, the other driver will follow you home and chop your head off. \*\* Can we have a new forum, for “Baffling Non Sequiturs”? ---
**Author:** ![Esprix](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/esprix/32/7899_2.png) [@Esprix](https://boards.straightdope.com/u/Esprix)\ **Post date:** [December 19, 2000, 5:01pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/5 "2000-12-19T17:01:50Z")
**KSO** was trying to imply that your OP is as urban legendesque as the “headlight murderer” UL. Esprix ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [December 19, 2000, 5:24pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/6 "2000-12-19T17:24:53Z")
And **KSO** was also trying to do so without any substantative addition to the argument. Perhaps because he has none. Other than ignoring the fact that the Supreme Court was only the latest of our systems of leadership to jump into this fray with nothing but naked partisan intent, I don’t see anything factually incorrect in the email. I too am disappointed in the court. However, the results are legal. GWB is the president elect. Well, the President designate, or president proclimate, or something. But when he gets to the White House, he will legally be the President. If the new administration heeds the warning of its vanishingly thin margin of victory, and steers a very moderate course, he might even be a good one. If the Republican party tries to ride it’s Forty nine percent plus one judge majority into the sunset, things could be much worse. Tris ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 19, 2000, 5:26pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/7 "2000-12-19T17:26:51Z")
In my vaunted and highly valued legal opinion, while there is much about the opinion I disagree with, there is only one part that is truly “wrong”. That was the Supremes’ determination that December 12 was the cut-off date for recounts under Florida law. This is a matter of interpretation of state law, and a matter of first impression (never ruled upon by a Florida state court). Interpretations of state law are solely the province of the state courts, at least on first impression. As such, it was outside the Supremes’ competency to rule on the issue. The Supremes justified determining that the 12th was the cut-off date by noting that the FSC had mentioned the December 12 deadline in an earlier ruling. However, the FSC’s mention of the date was in what is known as _dicta_, non-binding explanatory language included in an opinion. Every first year law student knows (or quickly learns, to their chagrin), that _dicta_ is not a holding, and cannot be relied upon as determinative. Properly, the issue of the 12th should have been referred back to the FSC for determination. (Court apologists argue that the FSC would have been hard-pressed to issue a ruling that contradicted their earlier _dicta_. That is probably right, but it doesn’t change the fact that the Supreme’s exceeded their authority.) Most likely, had the FSC found the Dec. 12 date non-binding, the Supremes would have overturned as a Article II violation, and were just short-cutting the process. Courts can’t short-cut due process, however. Sua ---
**Author:** ![Ptahlis](https://avatars.discourse-cdn.com/v4/letter/p/a8b319/32.png) [@Ptahlis](https://boards.straightdope.com/u/Ptahlis)\ **Post date:** [December 19, 2000, 5:34pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/8 "2000-12-19T17:34:40Z")
Isn’t _anyone_ going to come in and tell us why this is all wrong and the Supremes were right in what they did? So far, every issue in this whole election has had its supporters and detractors, and I know this board has several lawyers other than Sua, who basically agrees with the thrust of the email. Should I conclude that their silence means that they also basically concur? ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 19, 2000, 5:38pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/9 "2000-12-19T17:38:32Z")
This was in the stay order, not the final opinion itself. In issuing the stay, the Supremes greatly weakened the “irreparable harm” standard for granting stays/preliminary injunctions. Prior to the Supreme’s order, “irreparable harm” was a high standard. As an easy example, say you had a tree on the border of your property. Your neighbor claimed it was his, and now plans to cut it down. You would be able to get an injunction if (i) you stood a could chance of prevailing on the merits (proving the tree was yours), (ii) a determination in your favor at the end of the legal process could not make you whole (your neighbor planned to chop down the tree before the court case was decided, and (iii) monetary compensation couldn’t make you whole (all the money in the world can’t replace a 100 year-old tree). Bush’s request for a stay satisfied Nos. 1 and 3, but not 2. In order to grant the stay, the Supremes lowered the standard of irreparable harm to something that casts doubt on the legitimacy of your ultimate success. Trust me, as an attorney, I **will** be using the Supremes’s new standard in arguing for injunctions on behalf of my clients. I strongly suspect many other attorneys will, too. The result will be an explosion in the number of injunctions/stays granted. Sua ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 19, 2000, 5:47pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/10 "2000-12-19T17:47:28Z")
> [@](#): > > \*Originally posted by Ptahlis \* > \*\*Isn’t _anyone_ going to come in and tell us why this is all wrong and the Supremes were right in what they did? So far, every issue in this whole election has had its supporters and detractors, and I know this board has several lawyers other than **Sua, who basically agrees with the thrust of the email.** Should I conclude that their silence means that they also basically concur? > (boldface min - Sua) \*\* A little strong, **Ptahlis**. I disagree with the decision, but more for political than legal reasons. From a legal perspective, the case is proof the adage “hard cases make bad law”. The Supremes tried so hard to find a majority that they ended up with a sloppy and poorly-supported decision. Had I been on the Court, I would have decided differently, and I think I would have had a **better** legal rationale, but that does not mean that my rationale is the only permissible rationale. However, as for the email, I don’t really agree with it, either. To give one example, the email makes a hash of the “clear intent of the voters” issue. Had the FSC come up with a definitive standard, it would not have “changed” Florida election law – it would have interpreted it. In point of fact, the FSC _should_ have come up with a standard - that’s the job of the courts when the legislature tosses waffle words into a statute. Sua ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [December 19, 2000, 6:05pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/11 "2000-12-19T18:05:42Z")
**Sua,** Could you clarify this “_dicta_” issue for me please? My understanding was that the December 12th deadline was an integral part of the Florida SC decision. In an attempt to find some basis in Florida law for their new deadline (so as to meet the definition of “interpreting” law) they declared that the legislature had enacted the (7 day) deadline so as to meet the December 12th one. Thus the USSC said that challenges had to be over by then. **Ptahlis,** There have been several threads dealing with this subject already, including one lengthy analysis by **DSYoungEsq**. (This e-mail is a bunch of oversimplified partisan nonsense). ---
**Author:** ![Necros](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/necros/32/11086_2.png) [@Necros](https://boards.straightdope.com/u/Necros)\ **Post date:** [December 19, 2000, 6:17pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/12 "2000-12-19T18:17:40Z")
Wow. I can’t believe no one’s responded to this in a substantive way yet. Disclaimer 1: IANAL. Disclaimer 2: If a lawyer wants to come in and show me the errors of my ways in a legal way, I’m happy to accept it. Disclaimer 3: I’m only going to pick a few arguments out to get the ball rolling. > [@](#): > > 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. I’m sorry. I was obviously under the impression that the job of a “supreme court” was to make interpretations of laws passed by the legislature. And when two laws are in seeming conflict, it is the job of said court to make determinations of the way those laws should be carried out. Silly me. > [@](#): > > 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. I’ve checked my dictionary, but I don’t see “standards” as a synonym for “law” there. Maybe I’m missing it. SCOTUS said that if the FSC was going to allow recounts to continue, that they needed to provide direction to those they were instructing to recount. They weren’t “passing a new law.” The FSC failed to provide direction to the recounters, those they were giving the opportunity – twice – and this raised the federal issues. SCOTUS would have, I suspect, passed on this if the FSC had provided a way for all votes to be counted equally and consistently. > [@](#): > > 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. The difference, of course, is that all voting machines at the beginning of an election are held to be equally capable of recording a vote. If there are so many known problems with punchcard machines, the correct time to bring them up, and come up with a feasible replacement, was in the past however-many years since the problems were discovered. If Democrats felt there were problems with the machines that violated equal protection, why did they take no steps to remedy the problems? The machines are considered equal. Since no consistent standard was applied to the _counting_ of the votes, though, those votes are no considered equal. I don’t see how the two issues have much to do with one another. > [@](#): > > 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. Actually, IIRC, Hawaii in 1960 chose electors who voted with the rest of the electoral college. Hawaii then changed its slate of electors later after recounts were completed. Most legal scholars, I believe, think this was unconstitutional, but Hawaii’s electoral votes didn’t really matter because the race wasn’t close enough, so no issue was made. Is this guy suggesting that Florida perform an unconstitutional act like Hawaii did? > [@](#): > > 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. Huh? It’s both Congress (and in this instance SCOTUS) who have to do with the electoral process, not Congress that has something to do with SCOTUS. This doesn’t even make any sense. > [@](#): > > 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.” Yeah! Great idea! Count all the votes equally. Too bad FSC didn’t see it that way. And SCOTUS said that until they did, no way were they recounting the votes. > [@](#): > > 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… Maybe because that wasn’t the case before the Court? I dunno. You’re the lawyer; I figure you should know this. :rolleyes: > [@](#): > > 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. I’m obviously mistaken that SCOTUS said to the FSC: “Count all ballots under a single uniform standard,” you, know, like they should have in the first place? But no, FSC didn’t want to to do that. They wanted to “determine the clear intent of the voter,” but they didn’t want to tell anyone _how_ to do that. > [@](#): > > 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. Oh, come on. This is ridiculous. Yes, Gore got the most votes of the national popular vote. This is irrelevant, of course, but whatever. **Of the votes counted ion Florida, Bush got the most**. So, "under the Constitution, Gore did not win, because he had fewer votes cast for him in the Electoral College. Saying Gore won according to the Constitution is just wrong. > [@](#): > > 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. No, in the year 200, just as in every year except those where the election was given to the HofR, the one with the most electoral votes wins. > [@](#): > > 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. This is just disgusting. ---
**Author:** ![Pyrrhonist](https://avatars.discourse-cdn.com/v4/letter/p/919ad9/32.png) [@Pyrrhonist](https://boards.straightdope.com/u/Pyrrhonist)\ **Post date:** [December 19, 2000, 6:21pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/13 "2000-12-19T18:21:02Z")
It forgot to mention the one-armed man seen fleeing with boxes of ballots over a grassy knoll in a heavily Democratic county.😛 ---
**Author:** ![Necros](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/necros/32/11086_2.png) [@Necros](https://boards.straightdope.com/u/Necros)\ **Post date:** [December 19, 2000, 6:24pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/14 "2000-12-19T18:24:04Z")
Well, no one had responded substantively when I started, anyway. 🙂 ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [December 19, 2000, 6:41pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/15 "2000-12-19T18:41:45Z")
> [@](#): > > \*Originally posted by SuaSponte \* > **To give one example, the email makes a hash of the “clear intent of the voters” issue. Had the FSC come up with a definitive standard, it would not have “changed” Florida election law – it would have interpreted it.** Given the tenacity of the Bush campaign and the earlier USSC ruling, I suspect that if the FSC _did_ come up with a definitive standard, it would’ve been challenged anyway. And given the now-obvious bias in the USSC, I think the conservative Justices would’ve ruled in Bush’s favor anyway. Bottom line: The FSC was damned if they did, and damned if they didn’t. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [December 19, 2000, 7:18pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/16 "2000-12-19T19:18:37Z")
**rjung** wrote: > [@](#): > > Given the tenacity of the Bush campaign and the earlier USSC ruling, I suspect that if the FSC did come up with a definitive standard, it would’ve been challenged anyway. And given the now-obvious bias in the USSC, I think the conservative Justices would’ve ruled in Bush’s favor anyway. Exactly right. This was a no-win situation for the Florida Supreme Court. If they had announced a standard for counting votes, they would have been reversed by the U.S. Supreme Court for engaging in “judicial legislation” and thereby violating the separation of powers. As having refused to announce a standard other than the one adopted by the Florida Legislature, they are reversed on a flimsy equal protection ruling. Exactly as you say, **rjung**. Damned if they do and damned if they don’t. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 19, 2000, 8:14pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/17 "2000-12-19T20:14:27Z")
> [@](#): > > \*Originally posted by Necros \* > > > [@](#): > > > > 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… > > Maybe because that wasn’t the case before the Court? I dunno. You’re the lawyer; I figure you should know this. :rolleyes: Actually, **Necros** , this is a huuuuuuge problem with the Supremes’ decision, and I apologize for not mentioning it in my earlier post. The Supremes held that the “clear intent of the voter” standard violated the equal protection provision of the 14th Amendment. **Not** the FSC decision – the Florida statute itself. Yet, the Supremes explicitly limited their decision to the facts of this case, in itself an extremely rare occurrence. So, the laws of those 33 other states must also be unconstitutional, but the Supremes said that you can’t apply our decision here to overturn those laws. Sure, those other states’ laws weren’t before the Court, but our common law system works on the principles of precedent and, dare I say it, equal protection. If there is truly a problem with the clear intent standard, then the Supremes should not have limited their decision, and all those other laws should be presumptively unconstitutional (it wouldn’t affect this election, but the laws would have to be changed before the next election, be it state, local, or federal). As it is, the standard has been found unconstitutional in Florida, but may still be used in those other states. That means that the Constitution as applied in Florida is different than elsewhere. Not very equally protective, hmm? Sua ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [December 19, 2000, 8:39pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/18 "2000-12-19T20:39:50Z")
Sua, 1. My earlier question 2. Regarding your most recent post: As I recall it, the SC did not say that the “intent of the voter” law was itself unconstitutional. It was only the unequal interpretation (and application) of it that made the actions by of the vote counters unconstitutional. IOW, had all the vote counters, by some coincidence, counted the votes the exact same way, there would have been no infringement on the Constitutional rights. What caused a problem was the Florida SC instituting a vote recount that was **actually** treating different citizens differently. In light of this, it is not irrational to limit the decision to this case, as the crux of the issue depends on the particular circumstance of a given recount. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 19, 2000, 10:12pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/19 "2000-12-19T22:12:29Z")
> [@](#): > > \*Originally posted by IzzyR \* > \*\*Sua, > > 1. My earlier question > > 2. Regarding your most recent post: As I recall it, the SC did not say that the “intent of the voter” law was itself unconstitutional. It was only the unequal interpretation (and application) of it that made the actions by of the vote counters unconstitutional. IOW, had all the vote counters, by some coincidence, counted the votes the exact same way, there would have been no infringement on the Constitutional rights. What caused a problem was the Florida SC instituting a vote recount that was **actually** treating different citizens differently. In light of this, it is not irrational to limit the decision to this case, as the crux of the issue depends on the particular circumstance of a given recount. \*\* Second question first - one of the things already commented upon is that the FSC provided no interpretation. It simply said that, in the recounts, the standard to determine a vote is what the statute says - “the clear intent of the voter”. The supremes said that that standard is too loose and open to differing interpretations, which would result in votes being counted differently in different counties. So it was the legislative standard itself that was the problem. First question second - the FSC didn’t need to find in Florida statute a basis for a second deadline to hold that the first deadline was not set in stone. The “may/shall” issue and the fines for late delivery of results were sufficient indicators of legislative intent. As the December 12 mention in the earlier FSC decision was therefore not necessary to the ruling, it was not part of the holding in the case, and therefore _dicta_. Until someone makes an argument otherwise, my limited knowledge leads me to believe that the 12th was in fact a deadline. My point is that it wasn’t the Supremes job or within their competency or authority to determine that bit of Florida law. Sua ---
**Author:** ![Necros](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/necros/32/11086_2.png) [@Necros](https://boards.straightdope.com/u/Necros)\ **Post date:** [December 19, 2000, 10:17pm UTC](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256/20 "2000-12-19T22:17:12Z")
**IzzyR** is the interpretation that I held: That the special circumstances meant special consideration. But I must admit that I never have heard of another case in which they specify where the case is applicable. It is sort of left to other litigants and courts to determine if the precent applies, right? Maybe they just did it because of the importance of the presidential election, but that doesn’t seem to make good, logical sense. Thanks for shedding light on my ignorance of this matter… [Next page](https://boards.straightdope.com/t/legal-explanation-of-supremes-wrongness/46256.md?page=2)