A Layman's Guide
to the Supreme Court Decision
in Bush v. Gore.

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: 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 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 since 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 if they would end up with a possible Gore victory.

A: Right. Next question.

Q: Wait, wait. I thought the problem was "equal protection," that some counties counted votes differently from others. Isn't that a problem?

A: It sure is. Across the nation, we vote in a hodgepodge of systems. Some, like the optical-scanners in largely Republican-leaning counties record 99.7% of the votes. Some, like the punchcard systems in largely Democratic-leaning counties record only 98% of the votes. So approximately 2% of Democratic-leaning votes (several thousand) 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 2% of Democratic-leaning 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 10,000 Democrats to vote for Buchanan or both Gore and Buchanan?

A: Nope. The courts have no problem believing that Buchanan got his highest, best support in a precinct consisting of 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 2% of Democrat-leaning voters (largely African-American) disenfranchised. The problem is that somewhat less than .005% of the ballots (100 to 300 votes) may have been determined under slightly different standards, because judges and county officials -- doing what Americans have done for more than 200 years -- will look at the ballots under strict public scrutiny and record voters' votes. At the end of the day, they may have a slightly different opinion about a few hundred votes, but a single judge was overseeing the entire process to resolve any disputes under a single standard.

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 when the US Supreme Court stopped him from counting the uncounted votes (because they were favoring Gore, according to Scalia's stay opinion). Republican activists did their best to send junk faxes to Lewis in order to prevent counties from submitting the standards to Lewis in a way that could justify the vote counting. They succeeded.

Q: Hmmm. Well, even if those .005% of difficult-to-tell votes are thrown out, you can still count the votes where everyone, even Republicans, agrees the voter's intent is clear, right?

A: Nope.

Q: Why not?