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Monday, February 06, 2006

Part 3 of 5

The Court Goes Corporate: Abandoning the Rule of Law to Appoint Bush

On Saturday, December 9, 2000, five people stole the election for George W. Bush. Justices Rehnquist, Scalia, Thomas, Kennedy and O'Connor favored Republican politics to the rule of law and the will of the people.


This series marks my attempt to prove that the Republican Party devalues democracy and manipulates elections. The proof of my argument lies in the GOP's actions over the past 50 years; Part 1 explained the GOP's role in widespread voter disenfranchisement in 1960s; Part 2 focused on the illegal impeachment of President Clinton which attempted to undermine the legitimate results of the 1996 election. The story continues today with Republican malfeasance in 2000, this time coming from the Supreme Court. The goal of the Democracy: Dead or Alive series is to provide the framework for a legitimate debate as to whether democracy can truly be said to exist in light of the Republicans' recent actions.

In 2000, two potentially treasonous efforts launched by Republican Party and its operatives stole the election from Al Gore, the rightful winner of both Florida and the popular vote: 1) The unconscionable Supreme Court decision that prevented the counting of votes and 2) the coordinated Republican voting fraud centered around the illegal disqualification of eligible black voters. Both Republican efforts served to negate the democratic process in 2000. Today, I focus only on the Supreme Court’s role; the next post in this series will look at the shameful theft of votes in 2000.


We all remember the deadlocked election and the subsequent recount. No one wanted a recount, but a recount to ensure the most accurate tabulation of the citizen’s votes was obviously a paramount concern. Soon, however, all the Republicans wanted to talk about was time tables, not getting the job done right.

Federal law gives state broad discretion as to the time for choosing electors. As such, on November 21, the Florida Supreme Court decided to extend the time for ballot certification past the time designated by statute. On December 1, the United States Supreme Court first intervened and unanimously sent the case back to the Florida Supreme Court with instructions to rewrite its opinion to avoid creating a federal question.

On December 8, the Florida Supreme Court ordered a statewide recount of all ballots. This was easily the most sensible approach to take at this time. The election was hotly disputed by both sides; Republicans and Democrats alike were unsure if all the votes had been counted. A complete recount, scrutinized throughout America and the world, would be the most fair, equitable way to resolve the 2000 dispute.

On Saturday December 9, the conservative justices panicked. The recounts had begun and Bush’s lead had been cut in half. With Gore only trailing by less than 200 votes, the Supreme Court issued a 5-4 opinion that stopped the recounts and handed the election to Bush. Had the Supreme Court been legally compelled to issue this decision, I wouldn’t be writing this article and we would have no story. The problem was that the Court abused its power and acted contrary to the law to turn the election towards their Republican hero. As a result, Corporate Evil won this battle.


A. The Court Has No Reasonable Basis For Its Claim That the Florida Supreme Court Violated Article II by “Impermissibly Distorting” Florida Election Law

The Yale Journal of Law (110 YLJ 1407, no link available) considers the Court’s strongest legal argument to be Rehnquist’s concurring decision, not the 5-4 majority opinion which focused on Equal Protection. The concurring opinion finds its basis in Article II, Section 1, Clause 2 of the Constitution: “[E]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for president and vice president. Rehnquist argued that the legislature had complete plenary power to determine how to choose electors. The Florida Supreme Court could not alter that power in any way, even to avoid a conflict with the Florida Constitution.

The problem with Rehnquist’s view is that one cannot divorce the courts from legislature. Both are equal components of the lawmaking process. The legislature makes laws, but when it comes to conflict in laws, the courts resolve disputes, just as they always do. More importantly, the legislature specifically delegated authority to the Courts to decide election contests.

The Florida legislature specifically created the right to sue in federal courts to contest election results. That is part of the “manner as the legislature thereof may direct.” The Florida Supreme Court used its power to interpret a conflict in laws when it ordered a statewide recount. Rehnquist acknowledges that courts can interpret election law, that interpretation cannot involve a “significant departure” from the prior law and cannot “impermissibly distort” the statutes “beyond what a fair reading required.” Since the Florida election statutes were rewritten in 1999, nearly all questions of interpretation were of first impression for the Florida Supreme Court. A “significant departure” would be nearly impossible in the absence of precedent.

Rehnquist argued that a legal vote was only the vote punched out and read by the punch card machine. He claimed that voters were given clear instructions on how to vote properly and if they didn’t vote so that the machine read their votes, they were illegal no matter if the intent of the voter was otherwise clear. The Florida Supreme Court took had argued that these votes, called “undervotes”, should be counted if the intent of the voter was clear. This constituted a "fair reading" of the election statutes that failed to "impermissibily distort" them.

Rehnquist and the Bush team longed argued that December 12, 6 days before the electoral college meets, was the drop dead date for the end of the recounts. Hence, no more recounts could occur under the Court’s decision because the Court believed that they would never be finished in time. But by federal law (3 U.S.C. §5), this only creates a “safe harbor” that guarantees a state that its votes will be counted; electoral votes have come in late all sorts of times and always had been counted. Rehnquist believed that since the Florida Legislature wrote that the votes had to be in by December 12th, that was enough. Yet the court had to balance meeting an artificial deadline with counting all the legal votes in the state of Florida. Given a balance between a legal fiction and a fundamental right guaranteed by the Constitution, Rehnquist chose the fiction to select George W. Bush.

The real problem with the Republican Court’s opinion lies in the complete disregard for standards of review. The Florida Supreme Court had the most authoritative understanding of Florida election law. The standard of review when interpreting state statutes is not purely de novo but requires some deference to the state court interpreting its only statutes. By Rehnquist's own phrasing of the standard of review, the Supreme Court could only overturn Florida's decision if a “significant departure” existed that “impermissibly distorted” the statutes “beyond what a fair reading required.” But Rehnquist's interpretation wasn’t any more legally sound than Florida's decision. The Florida Supreme Court’s reasoning failed to meet Rehnquist's standard that would allow the Court to overturn its decision and announce a violation of Article II.

B. The Court has No Reasonable Basis for Its Claim That Recounts Violated Equal Protection by Using Different Standards of Vote Tabulation Because the Majority of Elections Use Different Standards of Vote Tabulation.

The 5-4 majority used Equal Protection, not Article II, to justify handing the election to Bush.

The majority pointed to the fact that just three counties in Florida were counting overvotes – votes which machines read as voting for “2” candidates but which the voter’s intent could clearly be ascertained by human inspection. All other counties limited their count to the undervotes – votes with no recorded vote but where the voter intent can clearly be ascertained – which is as the Florida Supreme Court had ordered in its December 8 opinion. Since this discrepancy meant that certain votes could get counted in some places but not in others, the Court found an Equal Protection violation.

The fundamental flaw in this argument is that within states, different methods of counting ballots across different counties occur all the time. Hence, the court's logic only holds water if its reasoning is that states can count votes differently the first time, but on a recount one must employ a uniform standard. There is no logical justification for distinguishing the two methods of counting votes since a recount replaces the first count and involves the exact same means and end.

The court further held that is decision was “limited to the present circumstances,” which has been treated as making the decision “not precedent.” Black voters seeking to remedy equal protection violations had no ammo as the political Republican Justices exposed their flagrant disregard for the rule of law. The common law follows precedent; to declare a decision that effects a Presidential Election “not precedent” stands above the rule of law.

The Court created brand new Equal Protection doctrine created from scratch to justify Bush’s appointment. If the Court was really concerned with a serious Equal Protection violation affecting a Presidential Election, the Court easily could have remanded the case and conducted a recount using a uniform standard. This was Justice Breyer’s opinion; he agreed with the 5 conservatives that an Equal Protection violation existed, but he wanted to send the case back to the Florida Supreme Court to conduct a manual recount. The majority dismisses this argument in a sentence – the Florida statute says the 12th is the day, and violating that day would not make an “appropriate order” of the court. The court reasons that since a a conflict in laws exists, a minor, technical statutory violation should take precedence over a massive Constitutional violation. This is unbelievable. When two laws conflict, a weighing test must be conducted. The balancing test here reveals the remedy of the Equal Protection Violation to take precedence. The Court, however, cared little for the rule of law. They wanted Bush as President and were prepared to misuse their positions to do it.


It’s fairly obvious that the Court knew that its legal reasoning had no merit. Is this a crime? No, because no statute on the books provides for such a crime. Prosecutor Vincent Bugliosi argues that although the Court violated no statute, the Justices had criminal intent because they knew their actions were “morally reprehensible.” Regardless of whether it’s called a crime or not, no justification exists under the spirit of the Constitution for stealing elections .

The 2000 “selection” shocked Americans into the reality that an objective Supreme Court ceased to exist. The Court revealed itself as political institution despite the contrary intent of the founding fathers. The Republican members of the court became the very judicial activists that the GOP propaganda machines rail against. The Supreme Court, effectively, caved into the interests of corporate evil rather than obey their oath to the Constitution. This decision by the 5 conservative Justices has resulted in the death of thousands of Americans and enormous wealth transfers from poor to mega-rich. The maintenance of free elections is key to American democracy and essential to the hearts of human beings. To undermine these values demonstrates a profound disrespect for our nation and our Constitution.

Misusing the power of the Supreme Court was not the only manner in which the Republicans stole the 2000 election. In my next post in this series, I’ll address the more troubling issue of massive racism and voting fraud that helped send the election to the courts to begin with.

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