Richard WarnickBush v. Gore: A Judicial Coup d’Etat
This is a refresher for those of us who went into shock when George W. Bush lost the 2000 presidential election and went to the White House anyway. I think we can be forgiven, given our state of mind at the time, for not following all the details of the U.S. Supreme Court’s judicial coup d’etat– an event unprecedented in American history, with catastrophic consequences we all know by now.
I’d like to credit Frank Staheli for sparking a good discussion on his blog, which is mainly about the career of Justice Clarence Thomas but veered into the Bush v. Gore issue.
Summary from Wikipedia:
Bush v. Gore, 531 U.S. 98 (2000), was a United States Supreme Court case heard on December 11, 2000. In a per curiam opinion, by a vote of 5-4, the Court held that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature.
Yes, the five Republican Supreme Court justices, who normally can be relied upon to champion states’ rights and oppose judicial activism, hastily intervened to stop the counting of votes by the State of Florida and award the state’s 25 electoral votes to George W. Bush. Attorney Mark Levine summarized the majority opinion in two sentences: “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.” Levine calls this the “Gore Exception.”
Bush v. Gore has gone down in history as the most corrupt decision in the history of the U.S. Supreme Court. Here’s the evidence: the majority opinion by Chief Justice William Rehnquist stated (emphasis added), “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Why limit the application of a U.S. Supreme Court decision? Because the standards the Court’s majority unfairly applied to Florida would also invalidate elections all across the country, especially the 33 other states whose laws also relied on the “clear intent of the voter” standard for recounts that the U.S. Supreme Court found was unconstitutional. If a precedent were created (as in practically every other legal decision), then it might put the Republican Party at a disadvantage in the future.
Didn’t the Florida Supreme Court try to change the election rules after the election? No. The U.S. Supreme Court decision made clear that the Florida Supreme Court did not change the rules of the election, but should have. The majority opinion said the Florida Supreme Court should have “adopt[ed] adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them.”
Wasn’t there a December 12 deadline for completing vote recounts? Yes, but it was non-binding until the U.S. Supreme Court decided to make it binding –at 10 p.m. on December 12. The only statutory deadline was January 6, when the electoral votes had to be reported to Congress. In the extremely close 1960 election, Hawaii’s votes weren’t counted until January 4.
Why didn’t any of the justices recuse themselves for conflict of interest? Justice Scalia’s two sons are both lawyers who worked for Bush. Justice Thomas’s wife was collecting applications for people who want to work in the Bush administration. Both Justices Thomas and Souter were nominated by President George H.W. Bush, George W. Bush’s father. As far as I know, none of them have explained why they did not recuse themselves.
Who would have won Florida if the Supreme Court hadn’t ordered a halt to the recounts? Al Gore, by about 20,000 votes.
UPDATE: Ted Rall raises the issue of jurisdiction:
The U.S. Supreme Court’s decision to hear the Florida recount lawsuit, Bush v. Gore, violated the U.S. Constitution. It’s a states’ rights issue. Elections fall under state law; the highest court that may resolve a legal challenge about an election is a state supreme court. The U.S. Supreme Court–a federal body–didn’t have jurisdiction in the case.
November 27th, 2007 at 3:05 pm
I’ll have to check into who this Skirsh guy is to see if he’s credible. My first reaction to your article is that I find it strange that you say that the Bush lost the election because Gore got more popular votes. I’ll do a little research and then sometime post an article on why I think the electoral college is still a good idea.
Sorry for the quick, “drive-by” comment, but I’m pressed for time until later this evening. Just wanted to let you know that this is an interesting post, so I’ll be back to read and think and chat some more.
November 27th, 2007 at 3:28 pm
Traditionally, in a democracy, the candidate with a plurality of votes wins an election. Because of a quirk in the Electoral College system, a candidate who lost the popular vote has gone to the White House four times in American history. In 2000, Gore had half a million more votes than Bush. In Florida, Gore got about 20,000 more votes than Bush– but those weren’t counted because the U.S. Supreme Court stopped the count.
Who is Skirsh?
November 27th, 2007 at 5:40 pm
Skirsh (oops, “Skirsch”) is the guy (or the website) you link to at the bottom of your article, which link says ” Al Gore, by about 20,000 votes.”
My blunt answer to your reply is that we are not a democracy, we are a democratic republic, and for good reason. The electoral college is part of that good reason (at any rate, it must be amended out of existence if it is to go). The 17th Amendment, requiring popular vote of Senators (instead of them being appointed by state legislatures) was a mistake. Three different groups of people electing the different sets of representatives
–Populace elect Representatives to House
–State Legislatures appoint Senators
–Electors elect president
was a very effective check and balance on the hubris of the federal government that we should go back to (by amending Amendment 17 out of existence).
November 27th, 2007 at 11:04 pm
All Steve Kirsch does is explain the Miami Herald’s unofficial recount. The Herald commissioned a team of political analysts and pollsters to make a statistical calculation based on projections of votes by county, concluding that Gore won the state by 23,000.
November 28th, 2007 at 12:46 am
All good humor. Is anyone ready to Stand?
November 28th, 2007 at 1:06 am
Here’s a recent story you haven’t seen. It’s a stunning report by Dan Rather which proves that the punch cards in Florida were actually designed to have hanging chads. Eight people who worked for years at the factory that made the cards were ignored by the media all this time. Their question to Dan Rather is why did it take this long to do the story.
Greg Palast, who is an American journalist who is forced to work in Britain to get his stories about American voting fraud by high officials published had absolute proof that the election was being stolen while the counts were still going on. Innocent African-Americans were being illegally placed on felon lists. 50,000 of them. Salon.com promised to publish his findings, but when they failed to do so, Greg called them to see what the problem was. He was told that Salon.com called Jeb Bush’s office and were told that everything was OK, so they didn’t publish. It’s all in his book, “The Best Democracy Money Can Buy.”
Frank, I’m sorry but we don’t have a republic OR a democracy any more.
Even if the supreme court hadn’t stopped the counting allowed by the Florida Supreme Court, which would have put Gore in office, the Republican congress was going to steal it anyway. One of the most corrupt congressmen in Washington, Tom Feeney, was going to lead the way.
The time in between the 2000 and 2004 “election” was used by Republicans to make damn sure each and every contest in the country was stolen by just enough votes to insure no recounts were made. The exit polls favored John Kerry all across the country and then flipped suddenly. The American “news” media focused on the flipped results in Kiev. The fraudulent machine counts in America have been completely ignored right to the present day.
November 28th, 2007 at 5:37 pm
Larry, do you really have so much faith in the competence of our government or political parties that you think they could pull off a cover-up of the scale you’re discussing? I don’t share your faith.
The issue where “African-Americans were being illegally placed on felon lists” is a red herring. Both whites (9.9% error rate) and hispanics (8.7% error rate) were more likely to be erroneously on the felon list than blacks (5.1% error rate). I’m pulling that information from an article by John Lott.
In the same article, Lott notes that two media groups studied the election. One group was USA Today and the Miami Herald. Lott quotes from their report:
** Who would have won if Al Gore had gotten the manual counts he requested in four counties? Answer: George W. Bush.
** Who would have won if the U.S. Supreme Court had not stopped the hand recount of undervotes, which are ballots that registered no machine-readable vote for president? Answer: Bush, under three of four standards.
** Who would have won if all disputed ballots — including those rejected by machines because they had more than one vote for president — had been recounted by hand? Answer: Bush, under the two most widely used standards; Gore, under the two least used.
The other media coalition included the Washington Post, New York Times, L.A. Times, Chicago Tribune, the Associated Press, and CNN. They gathered a ton of data and welcomed other people to analyze it. (Perhaps you could get a copy and provide us with counter points if that is in order.) Dan Keating of the Washington Post summarized the results (PDF) of that investigation in 2003. His explanation of the study methodology is excellent. Interestingly, he concludes that both Bush and Gore pursued legal strategies that turned out to be in their opponent’s best interest in terms of vote tallies!
Keating writes, “And the deciding line was very simple – if all of the ballots were counted there were enough potential Al Gore votes to give him a victory, but any smaller subset of ballots would retain or even enlarge George W. Bush’s margin.” Nobody ever undertook, and the proposal was not on the table to undertake, a recount of every single ballot. The recounts were requested for certain counties, or for all undervotes, or for all undervotes and overvotes. Any of these limited recounts would have resulted in a Bush victory.”
It is obviously still controversial, but I’m not seeing the alleged 20,000 vote margin anywhere. Do you have a more reliable link directly to a news source that provides that number? In the Post summary, there was never more than a 500 vote difference between the candidates either way.
You can read the Lott article I linked above for information on how the media cost Bush another 7,000-10,000 votes by incorrectly reporting that all polls were closed.
November 28th, 2007 at 5:44 pm
Hi Bradley, while I don’t believe the people in government to be competent at much, it is evident that those involved are competent at spending money, and staying in power as well. If they were to attempt anything and do it well, it would be cheating themselves into power.
One way or another, the bush team pulled something out of their hat, because as I travel around America these days and talk to people, I can’t really find anyone that voted for bush. I call it the “nixon effect”. One thing is for certain, the elites that are running this country, left, right and center, are working all sides against the others, and as far as our will is concerned, they surely have the Nix ON.
November 28th, 2007 at 8:37 pm
Bradley:
Tell me you’re not reading “The National Review” to give you a summary of why the election wasn’t stolen. Blacks were disenfranchised in every possible way and continue to be. Red herrings are everywhere in the arguments of the right wingers. They say that democrats are casting votes of dead people and buying cigarettes for homeless people to vote. The Bush appointed cronies watching over the elections hid a study they did until after the 2006 election because even they couldn’t prove anybody besides Ann Colter did anything of the sort.
Greg Palast is worth any dozen journalists from the National Review and would lay waste to any “facts” they come up with on the disenfranchisement of Blacks.
Aren’t you angry that the chads were designed to hang. Aren’t you mad that the media has been so filled with right wing hacks over the last 30 years that they refused to report about exit polls flipping in America, but gave us a barrage of stories from Kiev about the same issue.
Did you know there was a race in California where Dennis Hastert swore in the candidate, (Bilbray), before the race was even close to being certified. pollworkers were allowed to be take the voting machines home for a couple of weeks before the election. Did you know one type of machine, (Sequoia), has a big yellow button on the back that when pushed will allow you to vote as many times as you want. Where are the National Review stories on that one?
Come back to earth!
November 28th, 2007 at 9:28 pm
Dan Keeting concludes, “Both Bush and Gore pursued legal strategies that turned out to be in thier opponents best interest…”
This little snip makes it all the more difficult to determine which of them was really the lesser of two evils (we’re grateful to the supreme court for sorting that out for us). Never the less, the past seven years have make clear which was the Greater.
November 29th, 2007 at 8:31 am
The 23,000-vote margin for Gore was a projection, not an actual ballot recount. I have not found the original Miami Herald story about it, which is why I linked to Steve Kirsch. But ballot recounts done by news organizations all showed Gore with the most votes in Florida, even though the story was often spun in favor of Bush because the dominant narrative cast him as the “winner.”
November 29th, 2007 at 9:14 am
Richard, thanks for that explanation. It appears, then, that we are in agreement on the facts surrounding the recount. You’re citing the same newspaper studies that I’m citing. The spectrum of possible results, under various recount scenarios, didn’t give any candidate a lead of more than 500 votes. In other words, depending on how we recounted, Gore might have won or Bush might have won, but neither by a margin of more than 500 votes. Are we agreed on that point?
Larry, did you have any actual points to make on the Bush v. Gore issue? I didn’t see that you addressed any of the substance of my previous comment. I’m open to the possibility that I’ve misunderstood the black disenfranchisement, but merely repeating the charge, when I’ve provided a numerical counter agrument with a source link, is insufficient.
November 29th, 2007 at 9:36 am
I think if the recount was conducted fairly (i.e. not by GOP rules), then Gore would have come out ahead.
November 29th, 2007 at 11:05 am
Bradley says:
No Bradley. You win.
November 29th, 2007 at 11:19 am
God love Bradly Ross for being a predictable mouth piece for republican propaganda.
As if the Florida recount issue wasn’t settled in Gores favor long ago, he conveniently fails to mention the criminal indictments of voter caging, Kathline Harris’ involvement or the variety of other thoroughly exposed illegal activities surrounding the Florida vote.
Based on the appearance of impropriety alone, not to mention the obvious influence of Jeb Bush, no honest American would have the colgiones to suggest what happened in Florida was not a travesty of justice.
Obviously, Bradly Ross cares more for this repugnant president than the founding principles of this country. The mere fact that God has not slapped Bradly upside the head is simple proof, God does not exist.
November 30th, 2007 at 12:59 pm
No Bradley. You win.
I’m glad we got that cleared up. :)
God love Bradly Ross
I hope so! :)
Seriously, I enjoy a political conversation. That’s why I blog and read blogs. But we’ve got to engage arguments rather than merely mock each other. The partisan civil war in our country is tiresome and counterproductive, assuming you actually want our country to improve.
Both Larry and Cliff raised lots of other issues, any of which might have affected the outcome of the election, but don’t have anything to do with the actual vote counts or the Supreme Court decision. I’d like to focus on those for a moment.
Here is a link to a nicely formatted list of results from the impartial vote survey. I tried to render the results in plain text below. Richard, which one of these methods meet your standard of fair?
Review of All Ballots Statewide (Never Undertaken)
* Standard as set by each county Canvassing Board during their survey: Gore by 171 votes
* Fully punched chads and limited marks on optical ballots: Gore by 115 votes
* Any dimples or optical mark: Gore by 107 votes
* One corner of chad detached or optical mark: Gore by 60 votes
Review of Limited Sets of Ballots (Initiated But Never Completed)
* Gore request for recounts of all ballots in Broward, Miami-Dade, Palm Beach and Volusia counties: Bush by 225 votes
* Florida Supreme Court of all undervotes statewide: Bush by 430 votes
* Florida Supreme Court as being implemented by the counties, some of whom refused and some counted overvotes as well as undervotes: Bush by 493 votes
Certified Result (Official Final Count)
* Recounts included from Volusia and Broward only: Bush by 537
Based on this data (generated by a non-partisan group), it appears that the result would have been the same whether or not the US Supreme Court stepped in. The only things that would have led to a Gore victory were the things that weren’t being done. My argument, then, is that Richard’s gripe about the Supreme Court is irrelevant in this case.
November 30th, 2007 at 1:19 pm
“those that cast the votes mean nothing, those that count the votes mean everything”.
Jeb bus….er no, Joseph Stalin.
November 30th, 2007 at 4:05 pm
Bradley, I would love to see our nation improve and was heartbroken (excuse the emotional) when bush and cheney ascended to, you know, commander-in-chief - because after a long bout with pappa bush, ronald reagan and watching the clinton admin dragged through the mud time and again, I felt as though we were moving away from the perpetual war scenarios. So practically with the swearing in of dummy, scummy and thier friend rummy, the turn toward the boringly unimaginative and altogether too costly, bloody and deceitful life we’ve come to know and hate moved into full swing. Even Enron has faded behind this treachery, but there’s lotsa money to be made so there’s still that.
So, if there are those among us (what 75%?) who’ve come to see the present admin’s policies as flawed and dangerous, it is not because we’re not interested in our country progressing, rather it’s because we’re tired of seeing the issues we feel are important, ignored. It’s because of the disapointment of an admittedly squeeker of an election in 2000 considered by the ‘victor’ (even though there are all kinds of other questions, not the least of which is the Diebold promises) to be a mandate for war at all costs and without end. It’s also because the policies are flawed and dangerous to anyone who’s not a ‘have more’. Justify that all you want, I’m still not buying. Sorry. Also I don’t see my attitudes as a block to discussion either, everybody needs to learn to yield on occasion and I believe it’s the rights turn.
November 30th, 2007 at 4:23 pm
Caveat, I think I understand the frustration you have with the administration. I have two points to make in response. First, if you (speaking generally, and not to you specifically) want people to come to agree with you and change things in directions you think are positive, vicious attacks are less likely to persuade than reasoned arguments. I’m frequently persuaded in public policy debates–but it was always the result of a good argument rather than a baseless insult.
Second, it would be improper to allow your like or dislike of the current administration to color whom you perceive as the valid winner in the Florida election. We have to stand on the principle of the rule of law, even if we don’t like the outcome. Our dedication to the rule of law has unpleasant consequences, but that’s better than the alternative.
Let me take an unrelated example to make the point: OJ Simpson was clearly guilty of murder, yet he was acquitted. The law says that you can’t be tried twice for the same crime. So even when OJ later admits guilt, we can’t put him behind bars for the crime. Preserving our right to avoid double-jeopardy is more important than seeing a bad guy go to jail in some cases. I think this is analogous to counting the votes exactly as they were legally cast. Even if you don’t like the outcome, preserving the rule of law is more important. Without the rule of law, our society couldn’t function.
November 30th, 2007 at 5:16 pm
bradley, thanks more later
November 30th, 2007 at 5:30 pm
Yet Bradley the manner with which the affair was decided had no precedent, and in the end the Supreme Court decided who the victor was in Florida. Our president was appointed at that juncture, not elected, and how this relates to a concept of a Rule of Law, based upon a democratic election, I am less than sure.
The Supreme Court had no jurisdiction, and by any standard after the botched counting and election procedures, the only sensible thing to do, that would serve the Rule of Law, would be to do the election over.
That didn’t happen, so we suffered through 4 years of illegitimacy in Bushs’ first term, and that he was re-elected only compounds the disaster.
Rule of Flaw is more like it.
November 30th, 2007 at 8:52 pm
You’re number one, Bradley!
November 30th, 2007 at 9:36 pm
HOT BLAVA1 Bradly, your argument for rational discussion and the rule of law are right on and admirable. I assume you’ll agree that informing ourselves, sharing our positions and solving problems is hard enough work without profiteers who benefit from structural fuzziness, legal loopholes and unprecedented, one-time-only rulings yanking our morality right out of us. What are we to do when secrecy, deceit, war and dodging oversight are just a few of the new operating principles?
All kinds of important issues arise, issues worthy of debate, but Bush or Rice or one of the others cap the possibilities with such drivel as “they hate us for our freedom”, “America has had its accountability moment”, or the one about the mushroom cloud. Or they just mask thier distain for the rule of law with a signing statement or hike in the ‘terror’ alert level. Disregarding constitutional and other legal obligations, as well as thier responsability to we the people, has become thier forte’. So, I hope you’re not suggesting we ‘just go along to get along’. That the law is thier tool. Not ours.
Having said that, I would suggest that no matter how the outcome of the 2000 was determined, or what calumny has been gifted anyone, that Impeachment for cause and for discovery in the face of the above mentioned operating principles, is a lawful, just and helpful procedure.
Thank you for your openness, Cav.
December 1st, 2007 at 2:57 am
My last two comments were extremely sarcastic and I hate that, so let me be more specific in a pithy, uncivil and blunt kind of way…
Bradley:
Americans should die with dignity, which is harder then ever thanks to your ilk.
Thanks!
Not!
December 1st, 2007 at 9:01 pm
I hope you’re not suggesting we ‘just go along to get along’.
No, I don’t think getting along means being silent or passive. But when we fail to disagree civilly, we forget that we’re united on many more things than we’re divided on.
For example, I’ll bet that every person reading this post is horrified by the things happening in Sudan. The genocide in Darfur continues and yet a bunch of people over there think the most important thing they can agitate for is the execution of a school teacher who allowed a teddy bear to be named Mohammed. Craziness! You see, we should all be able to recognize that minor partisan differences that color our political debate domestically are really insignificant in the bigger picture.
Here at home, we’ve got real, heartbreaking problems that we’d all like to address. When a kid can’t find love and so he turns to a street gang, that’s a travesty. When a girl can’t find love, so she decides to have a baby so she’ll have someone to love her, that’s a travesty. When white kids hang a noose in a tree to warn black kids to stay away, that’s a travesty.
I’m concerned when people seem to interpret phrases like “judicial coup d’etat” as literal rather than figurative. We’re not at war with ourselves. We tend to have the same goals. We may advocate different means to achieve those goals, but’s let’s all be humble enough to recognize that none of has all the right answers and that we’re going to have to work together to find the solutions that will work best.
I hope “One Utah” can be more than just the name. I hope it can describe our unity of purpose even in the face of differences in how to achieve those purposes.
December 2nd, 2007 at 7:08 am
Bushes ‘political capital’ (and one would assume his responsibilities), gifted to him by one supreme court vote, (a regretted vote to hear justice oconnor’s tell it these days), most certainly makes any debate that any of the “losers’ might insist apon as whiney and UNCIVIL, or at the very least, a debate that can be steered hither-and-yon, bobbed, weaved and rope-a-doped till our boy has so screwed things up that ‘bush fatigue’ will likely have a huge section in the psychological diagnostic manuals. But let’s talk more about OJ, Shall we?
December 2nd, 2007 at 9:34 am
Bradly,
I hope it can describe our unity of purpose even in the face of differences in how to achieve those purposes.
Given your positions on most thing Bradly, can you see how that statement is a bit disingenuous if not uninformed?
Where do I start?
I guess for you, the big question is about those differences in how to achieve those purposes. I assume you refer primarily to the social problems you outlined.
And the problem is, we already KNOW how to deal with those problems and you people call it socialism and in YOUR small world (as a percentage of the population of the US and an even smaller population of the modern countries) we already KNOW how to solve those problems.
As far as I know, the only argument against socialized health care is that it is socialized health care. Perhaps you also believe all things socialized are bad or that it leads to communism, despite the lack of evidence. Certainly you believe that somehow that privatized and unregulated industry will lead to a public good.
So the question becomes, why are we so uncivilized. My belief is that the right-wing solutions are not only wrong, but proven wrong - so much so that we have become convinced that the right-wing really doesn’t want to solve our social problems, but rather simply marginalize them (hide them) in the interest of corporatism.
And of course, result bear this out. How else do you get a growing economy, increased productivity, and at the same time, more poverty and stagnant wages?
Lets take a simple example, teen pregnancy. You would teach abstinence while we know that good sex-ed, contraception and the right to abortion works way, way better.
We know that unfettered free market economics do not work and Milton Friedman and Reagan were wrong. Wrong, wrong, wrong.
Lastly, I’m guessing you think we all agree that the American empire is somehow responsible to spread democracy to other countries. Your way: at the barrel of a gun. Our way: patience, diplomacy, peace, and economic prosperity.
So Bradly, forgive us if we become uncivil at times. In order to write what you do, you must believe our current leaders are genuinely trying to solve all these problems. Well, I don’t. And anyone who does, is uninformed, gullible. and wrong in my opinion. Why discuss anything under false premises? There really is nothing to discuss until we agree on ground rules, like the use of objective evidence, logical conclusions and deference to experts and the historical record, not personal opinion and religion.
And yes, you have a right to your opinion. But along with that right comes my right to consider your minority view corrupt, inexcusable, and subject to religious belief.
So practice your right to an opinion, and we will practice the promise of popular democracy, and someday when this country is a real democracy, we will prevail and the entire world will celebrate, and hopefully, we will catch up to the productivity levels in the France.
December 2nd, 2007 at 10:13 am
WE can solve those social problems? It has been well proven that at least some peoples personal economies and ways of life can be fixed and give them “just a better life” by shipping our jobs to china and enslaving their populace so as to bring social justice to America…wal-mart..lyon style, while blathering on out of the other side of ones mouth in an attempt to polish the image.
So if ronnie and milt were wrong Cliff, is this blog and your adopted attitudes some form of feeble attempt to rectify from your exploitative life of your earlier years?
I figure you would be in the right place if you gave away all the money your old life, of plantation owner, so to speak, delivered…, and would start where attitudes like yours belong (which I figure are essentially unchanged) are out on the street, and begging for change.
December 2nd, 2007 at 9:04 pm
Today’s Republican party doesn’t work together with anyone. They take and you give. That is why it’s no longer possible for me to be civil when someone avoids talking about how the Republicans have stolen many races in all of our elections repeatedly since at least 2000. It simply cannot be refuted, so they don’t bother. Sort of like a family secret that goes unsaid for decades.
glenn says Justice O’Connor now regrets she helped put Bush in office and Justice Souter has recently come out with the revelation that he almost stepped down for the same reason.
This isn’t how people get along with each other Bradley. You don’t impeach a man who actually won an election just because you can, (good riddance Hyde.) You don’t step on the little guy right out in the open, just to show you can. It’s not the friendly thing to do.