The Gore Exception: A Layman's Guide
to the Supreme Court Decision in Bush v. Gore
While there are humorous
aspects to the Q&A;, it is indeed serious. The illogical opinion of the Supreme
Court, one of the worst and ill-reasoned opinions in US history is, unfortunately,
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,
Q: So Bush wins because hand-counts are illegal?
A: Oh no. Six of the nine justices believed that hand-counts
were legal and should count. 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 "divining the intent
of the voter" is perfectly legal?
Q: Well, if hand counts are fine, why were they stopped? Have
the re-counts already tabulated all the legal ballots?
A. No. The five conservative justices clearly held (and all nine justices agreed) "that
punchcard 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 will never be.
|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: 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. The Supremes didn't really say that. You're exaggerating.
A: Nope. They 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 US Supreme Court made clear that the Florida Supreme Court did
not change the rules of the election. But the US Supreme Court found this failure
of the Florida Court to change the rules after the election was wrong.
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 after the election.
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 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
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 do it,
it's being overturned for not changing the rules? That makes no sense.
That means that no matter what the Florida Supreme Court did, legal votes
could never be counted if they would end up with a possible Gore victory.
A: Right. Next question.
|If the Florida Court had adopted new standards,
it would have been overturned for changing the rules. And since
it didn't do it, it's being overturned for not changing the
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 approximately 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%
of Democratic-leaning ballots (about 170,000) thrown in the trashcan
in Florida. That "complexity" was not a problem.
Q: Was it the butterfly ballots that violated Florida law and
fooled more than 10,000 Democrats into voting for Buchanan or both Gore
A: Nope. The courts have 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 Buchanan's view that Hitler was not all that bad.
Q: Yikes. So what was the serious equal protection problem?
A: The problem was neither the butterfly ballot nor the 170,000
or 3 percent of Democratic-leaning voters (largely African-Americans)
disenfranchised. The problem is that somewhat less than 0.01 percent
of the ballots (less than 600 votes) 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 entire 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 of the counties
to fax him their standards so he could be sure they were uniform.
Republican activists repeatedly sent junk faxes to Lewis in order
to prevent counties from submitting the standards to Lewis 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 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: Well 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
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 December
Q: Is December 12 a deadline for counting votes?
A: No. January 6, 2001 is the deadline. In the Election of 1960,
Hawaii's votes weren't counted until January 4, 1961
Q: So why is December 12 important?
A: December 12 is a deadline by which Congress can't challenge
Q: What does the Congressional role have to do with the Supreme
A: Nothing. In fact, as of December 13, 2000, some 20 states
still hadn't turned in their results.
Q: But I thought ---
A: The Florida Supreme Court had said earlier 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 reversing it and 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.
A: Justice Scalia said some of the votes may not be legally
|So why not separate the votes into piles hanging
chads for Gore, indentations for Bush, votes that everyone
agrees were intended for Gore or Bush so that we know
exactly how Florida voted before determining who won?
Q: So why not separate the votes into piles hanging chads
for Gore, indentations for Bush, votes that everyone agrees were intended
for Gore or Bush 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 to a difficult
problem! The US Supreme Court rejected it. They held in stopping
the count on December 9 that such counts would be likely to produce
election results showing Gore won and that Gore's winning the count
would cause "public acceptance" that would "cast
a cloud" over Bush's "legitimacy" and thereby harm "democratic
Q: In other words, if America knows the truth that Gore won,
they won't accept the US 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 December 12 deadline is not binding, why not
count the votes afterward?
Q: Didn't the US Supreme Court condemn the Florida Supreme
Court for arbitrarily setting a deadline?
A: The US Supreme Court, after conceding the December 12 deadline
is not binding, set December 12 as a binding deadline at 10 p.m.
on December 12.
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, before Gore filed a single lawsuit,
went to court to stop the recount. The rent-a-mob in Miami that got
free Florida vacations for intimidating officials. The constant request
for delay by Bush lawyers in Florida courts. And, primarily, the
US Supreme Court, which refused to consider Bush's equal protection
claim on November 22, 2000, then stopped the recount entirely on
December 9, and then, on December 12 at 10 p.m., suddenly accepted
the equal protection claim they had rejected three weeks earlier,
but complained there was no time left to count the votes in the two
hours left before midnight that evening.
Q: So who is punished for this behavior?
A: Gore. And the 50 million plus Americans that voted for
him, some 540,000 more than voted for Bush.
Q: You're telling me Florida election laws and precedents existing
for a hundred years are now suddenly unconstitutional?
A: Yes. According to the Supreme Court, the Legislature drafted
the law in such a messy way that the Florida votes can never be fairly
counted. Since Secretary of State Katherine Harris never got around
to setting more definitive standards for a 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.
The voters of all 50 states use different systems and standards to
vote and count votes, and 33 states have the same "clear intent
of the voter" standard that the US Supreme Court found illegal
Q: Then why aren't the results of these 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?
Q: But then what makes Bush President?
A: Good question. A careful statistical analysis by the Miami
Herald extrapolates from the 170,000 uncounted votes in Florida to
show Gore clearly won the state and may have done so by as much as
23,000 votes (excluding the butterfly ballot errors). See
Q: So, answer my question: what makes Bush President?
A: Since there was no time left for a re-count based on the
non-binding "deadline," the Supreme Court decided to choose
itself who will be President and has picked Bush to win by a vote
of 5 to 4, based on the flawed count it just determined to be unconstitutional.
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 at law firms working
for Bush. Thomas's wife is collecting applications for people who
want to work in the Bush administration.
|Justices Rehnquist and O'Connor had both
said before the election that they wanted to retire but would
only do so if a Republican were elected, and when O'Connor
heard from early (and, we now know, accurate) exit polls
that Gore had won Florida, she responded that was "terrible."
Q: Why didn't they remove themselves from the case?
A: If either had recused himself, the vote would have been
4-4, the Florida Supreme Court decision allowing recounts would have
been affirmed, and Scalia said he feared that would mean Gore winning
the election. Justices Rehnquist and O'Connor had both said before
the election that they wanted to retire but would only do so if a
Republican were elected, and when O'Connor heard from early (and,
we now know, accurate) exit polls that Gore had won Florida, she
responded that was "terrible."
Q: I can't believe the justices acted in such a blatantly political
A: Read the opinions for yourself: December
9 stay stopping the recount and the December
Q: So what are the consequences of this?
A: The guy who got the most votes in the US, in Florida, and
under our Constitution (Al Gore) will lose to America's second choice
(George W. Bush), since Bush has won the all-important 5-4 Supreme
Court vote, which trumps America's choice.
Q: I thought in a democracy, the guy with the most votes wins.
At least in the Electoral College, shouldn't the guy with the most
votes in Florida win?
A: Yes. But America in 2000 is no longer a democracy, or even
a republic. In America in 2000,the guy with the most US Supreme Court
votes wins. That's why we don't need to count the People's votes
Q: So what will happen to the Supreme Court when Bush becomes
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 Supreme Court
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 will end÷. and one day we can hope to return
to the rule of law and the will of the People.
Q: Why can't we impeach the justices?
A: That takes a majority of the House and 2/3 of the Senate
and is far more controversial. Don't worry. A 4-year judicial filibuster
will definitely get the Court's attention. Indeed, it is probably
the only way to get the Court's attention.
|Write or call your Senator, reminding
him or her that Gore beat Bush by more than 540,000 (almost
five times Kennedy's margin over Nixon) and that you believe
that elections should be determined by counting the People's
votes, not the Supreme Court's.
Q: What can I do to help?
A: E-mail this article to everyone you know, and write or
call your Senator, reminding him or her that Gore beat Bush by more
than 540,000 (almost five times Kennedy's margin over Nixon) and
that you believe that elections should be determined by counting
the People's votes, not the Supreme Court's. Therefore, to stop our
unelected federal judiciary from ever again overturning the will
of the people, you ask your Senators to confirm NO NEW FEDERAL JUDGES
APPOINTED BY A NON-DEMOCRATICALLY ELECTED PRESIDENT until 2004 when
a president can be finally chosen by the American people, instead
of Antonin Scalia.
Q: Doesn't anyone on the US Supreme Court follow the rule of
A: Yes. Read the four dissents. Excerpts below:
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
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
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."
Mark H. Levine
Attorney at Law
TO REACH YOUR SENATORS: Go to http://www.senate.gov or
If you live in a state with two Republican Senators (or the disenfranchised
District of Columbia with no Senators), I suggest you call these four Democrats:
Minority Leader Tom Daschle, Judiciary Chair Patrick Leahy, Senator Ted Kennedy,
and Senator Paul Wellstone.
Q: A few more questions. How did this Q&A get passed around
A: It certainly surprised me. I originally sent it on December
13, 2000 (the morning after the Supreme Court decision) to 15 or
20 people. I think it struck a chord among 1) Americans who saw the
media celebrate while their right to vote was swept under the rug,
2) Americans who were concerned the Supreme Court had acted in an
overtly political manner but weren't sure because the decision was
couched in legalese, and 3) Americans who wanted to fight back but
didn't know how. Michael Moore got my first draft (typos and all),
put it on his website and accelerated the movement around the globe.
I have no connection, however, to Michael Moore and did NOT support
Ralph Nader in 2000. Hey Mike! Use the update! Please! (He's not
Q: Can you document all this?
A: Every bit of it. E-mail does not allow for footnotes. But
everything I say is well documented from a variety of sources: the
two US Supreme Court opinions (obviously), Federal Law (3 USC Sec.
5), former Supreme Court case-law, the opinions of the Florida Supreme
Court and the Florida courts below, Florida statutes, and, occasionally,
Q: Are you drowning in e-mails?
A: Yes! After I made the courageous (or foolhardy, take your
pick) decision to put my e-mail address in the Q&A, I have received
more than 3000 e-mails in 5 days from all 50 states and more than
a dozen foreign countries. If I'm just getting 1 in a 100 back, this
little Q&A has been read by several hundred thousand Americans.
But I do have a law practice to attend to. So please don't e-mail
me back unless you doubt my existence, want to publish it or give
me an interview, or "really" have an important question
or comment. 90%+ of the comments thus far have been positive. I used
to respond to each e-mail individually (back when I was only receiving
10-20 a day rather than 100 an hour thanks to the geometric progression
of the Internet), but I rarely do so now, except to pass out this
updated version to those of you who ask for it or doubt my existence.
Q: Have the Bushies come up with any response?
A: Only weak ones. They falsely claim, like the 5 justices
in the majority claimed, that 7 justices support their views. That's
clearly not the case. None of the four dissenters joined any portion
of the 5-person "per curiam" decision, and these 4 dissenters
have some pretty strong views on the matter as you can see above.
Indeed, in addition to the 4 dissenters who wanted to immediately
count the votes (2 under the Florida Supreme Court standard and 2
on a new uniform standard), an additional 2 in the majority (O'Connor
and Kennedy) say they wanted to count the votes... but oh golly gee,
time's up for democracy (although on November 22, when they had the
time, all nine rejected a hearing on the same Bush equal protection
claim they eventually decided at the last minute).
Q: How about your strongest argument? That the Florida Court
was in a Catch-22 situation, damned if they changed the rules and adopted
a new uniform standard? and damned if they stuck with the general standard
chosen by the Florida Legislature?
A: The Bushies can't touch that one.
Q: What about the fact that December 12 isn't really a deadline?
A: A few of the Bushies claim the Florida Legislature really
really really wanted the December 12 deadline as a "safe harbor",
but not one of them (including one of them that represented Bush
before the US Supreme Court) has yet been able to show me a law passed
by the Legislature before the Election setting December 12 as a drop-dead
deadline. There they go again, just as with the Florida legislative "special
sessions," trying to change the rules after the game to anoint
Bush the victor without counting votes.
|Only the concurring opinion of Scalia,
Rehnquist, and Thomas the three strongest conservative
state-rights advocates! would overturn Florida's opinion
on century-old Florida state-law without any federal basis
for doing so.
Q: What about the argument that voters who didn't remove their
hanging chad should lose their right to vote?
A: I think that's pretty harsh, don't you? Particularly when,
at least in Palm Beach County, voters were given only FIVE MINUTES
to vote on about 30 candidates and propositions. The five-minute
limit was printed in bright red, very large bold all-capital letters,
just below the much smaller instructions cited by Scalia, Rehnquist,
and Thomas in their concurrence that I am certain few voters had
time to read. In any event, the law in Florida has always been "clear
intent of the voter," and the idea that not punching the Chad
all the way through disenfranchises a voter has always been solidly
rejected by the Florida Courts. Perhaps, for this reason, Kennedy
and O'Connor couldn't stomach this argument. Only the concurring
opinion of Scalia, Rehnquist, and Thomas the three strongest
conservative state-rights advocates! would overturn Florida's
opinion on century-old Florida state-law without any federal basis
for doing so.
Q: Whatever happened with Seminole and Martin counties?
A: As you know, Republicans in those counties corrected thousands
of absentee ballot applications that were going to be thrown away
due to improper completion. The supervisors of elections in those
counties allowed Republican ballot applications to be corrected but
not Democratic ones. The Florida Supreme Court consistent
with its opinion that every vote counts and acting according to law
rather than partisan dictates condemned the supervisors but
decided not to throw away any votes. I've never met a Republican
able to square the view that clear-intent Democratic-leaning votes
with the "voter error" of failing to completely remove
a Chad should be thrown away while the Republicans who erred in completing
their absentee ballot applications should still have their votes
Q: So is this election over? Has the fat lady sung?
A: Her mouth is open and she's on her final note, but she
has yet to finish it. According to Federal Law (3 USC Section 5),
Congress cannot challenge any slate of electors when it's determined
by December 12 OR when "such determination [is] made pursuant
to such law so existing on" Election Day. In this case, however,
the US Supreme Court did exactly what it warned Florida not to do:
it changed Florida law after the election. If Florida had applied
the Legislative "clear intent of the voter" standard as
the Florida Supreme Court had ordered, that would not have been a
change in the law and no challenge would have been possible. However,
the US Supreme Court,by insisting Florida adopt a more specific standard,
has changed the law, and the results may therefore be challenged
Q: How would the results be challenged?
A: On January 6, 2001, it only takes only ONE Congressman/woman
and ONE Senator to object to Florida's electoral votes. Then both
houses votes on the challenge.
Q: What are the chances of us actually stopping Florida electoral
votes from counting and electing Gore?
A: A snowball's chance in West Palm Beach. Even if all 50
Democratic Senators were to vote for Gore (with Gore providing the
deciding vote as Vice President), the House would vote for Bush,
and it requires both Senate and House to reject an electoral slate.
But, even though the challenge would fail, wouldn't it be fun to
try? If only, to show that we the People are unwilling to accept
the Supreme Court's refusal to count our votes? Call Robert Wexler.
Q: Will the votes ever be counted?
A: Under Florida's Sunshine Laws, various media and Republican
organizations have requested to count the votes. And they should
be able to legally do so, unless the vote count is stopped by Republicans
like Washington Congresswoman Jennifer Dunn, who advocates the ballots
be "sealed." The most recent count has already brought
Bush's margin down to 24 (That's right. Twenty-four.) See
Q: Do you think the disenfranchisement of Democrats in Florida
and across the nation African-Americans in particular is
A: It's certainly systematic. The machines do not act randomly.
They do discriminate against Democrats far more than Republicans.
The reason for this is that the worst-technology voting systems tend
to be located in poorer areas, where voters tend to lean Democratic.
These counties apparently just can't afford up-to-date new systems.
I would strongly support a nationwide uniform ballot and a nationwide
ban on punch card ballot systems. I would expect the Republican will
try to block such voting reforms on two grounds: the machines are "good
enough" (Hey! 97% accuracy!) and, get this, states' rights!
They'll claim that the states should be left alone to control their
own elections and dictate their own methods of tabulating votes (except
when Gore is running).
|It appears Ms. Harris may have "accidentally" disenfranchised
thousands of African-American voters, enough to illegally
change the results of the election.
Q: But you didn't answer my question. Are African-Americans
intentionally being kept from the polls?
A: On Elections Day, I helped voters who were turned away
at the polls go back and legally vote. I took responsibility for
voters in three Congressional districts. 90% of the complaints came
from one largely-African-American Congressional district, including
not just voters turned away at the polls, but a polling place that
opened three hours late. As for Florida, I didn't really believe
the claims of intentional discrimination, until I read this
newspaper article from England:
Be careful. This will make you angry. It appears Ms. Harris may have "accidentally" disenfranchised
thousands of African-American voters, enough to illegally change the results
of the election.
Q: Why is this Q&A so darn long?
A: Because you folks who e-mail me keep asking me questions!!!
Q: And who the heck are you anyway?
A: I'm a practicing lawyer in Los Angeles and a graduate of
Yale Law School. My practice consists entirely of litigation, with
a strong appellate practice.
Q: Thank you.
A: No, thank YOU. For reading this to the end and for caring
about democracy in America.
Mark H. Levine is a practicing lawyer in Los Angeles. He graduated
Yale Law School in 1992, and is a member of the California Bar. He
can be reached at MarkLevineEsq@aol.com.