The Center for an InformedAmerica
A Supreme Injustice, Part II
December 12, 2000
Once again the U.S. Supreme Court, universally hailed by the press and pundits as an unimpeachably honorable body that is above politics, has wallowed into the election muck. And once again the court has opted not to have its proceedings televised, a suitably anti-democratic stance for the reactionary court. So once again, as a public service to readers, here are some of the highlights of the morning's events. And once again, for those who lack the legal expertise to grasp what was being said, italicized translations accompany all of the excerpted remarks:
Bush attorney Theodore Olson: All of the limitations on the remand process that existed during the protest phase, where the standard should be lower because it's earlier in the process, are thrown out the window. The timetables are thrown out the window. The process that exists are there ...
Justice David Souter: What's the timetable in 168?
Olson: There's no timetable ...
Souter: That's right, there is no timetable there, so that seems to undercut your timetable argument once you get into the contest phase from the protest phase.
Olson: Since our strategy primarily involves stalling the accurate counting of votes until we can run out the clock, we object to the fact that we can't artificially impose deadlines ...
Souter: What are the deadlines imposed under the Florida statute covering the contesting of certified election results?
Olson: Well, all the propaganda put out by our side to the contrary, there actually aren't any ...
Souter: No shit, Sherlock. Now, do you have any valid arguments to make?
Olson: It is, we submit, an utter revision of the timetables, the allocation of ...
Souter: But, Mr. Olson, we're back to the--there is no timetable in 166.
Olson: That's correct.
Olson: As I was saying earlier, they're trying to change the deadlines ...
Souter: Yo, Olson! Didn't we just cover that a few minutes ago? Read my lips, "There are no fucking deadlines."
Olson: I didn't know you were still here.
Souter: Well, if your concern was with impossibility, why didn't you let the process run instead of asking for a stay?
Olson: Well, because we said ...
Souter: You'd find out.
Olson: Because we argued, and I believe, that there's a very firm basis that that process already had violated Article II of the Constitution. It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects and we've recited them. The timetables are important.
Justice Anthony Kennedy: I thought your point was that the process is being conducted in violation of the equal protection clause because its standardless.
Olson: And the due process clause. And what we know is now the new system that was set forth and articulated last ...
Souter: If reaching an outcome before a supposed deadline was your chief concern, why did you deliberately delay the proceedings by seeking to stop the vote counting?
Olson: Uhmmm ...
Souter: What's wrong with counting the votes?
Olson: Because the count was being conducted illegally in that Gore was quickly wiping away our bullshit, paper-thin margin of victory. And also because of Article II and Section 5 of Title 3 and subsection C of Section 6 of the Magna Carta and something else that I saw the other day on Judge Wapner's Peoples' Court. And also (is that bastard Souter still here?) because of the deadlines that don't actually exist.
Kennedy: What the hell are you talking about? Do you have a coherent argument?
Olson: Not really. I'm just throwing out every half-baked legal argument I can think of. You guys just pick out the one that you like the best.
Justice Clarence Thomas:
Thomas: (I wonder how much it cost Michael Jackson to bleach his whole body like that. I'm going to have to look into that.)
Justice Stephen Breyer: [I]f it were to start up again, if it were--totally hypothetically--and you were counting just undercounts, I understand that you think that the system that's set up now is very unfair, because it's different standards in different places. But what in your opinion would be a fair standard, on the assumption that it starts up missing the 12th deadline but before the 18th?
Olson: Well, one fair standard--and I don't know the complete answer to that, is that there would be a uniform way of evaluating the manner in which--there's Palm Beach, for example ...
Breyer: If we were running a real democracy here, and I know that that is a purely hypothetical situation, what would be a fair standard to uniformly apply in hand counting ballots?
Olson: For a uniform standard to apply, it must be uniform.
Breyer: No, I'd still like to get your view as to what would be the fair standard.
Olson: Well, certainly one that would--I don't--I haven't crafted it entirely out. That is the job for a legislature.
Breyer: But I'd still like to get your opinion insofar as you could give it.
Olson: I think that part of the standard is that it would have to be applied uniformly.
Breyer: Hey, Einstein! I know that a uniformly applied standard must be uniformly applied. What I'm asking you is what that uniform standard should be.
Olson: We would really prefer that the votes not be counted at all.
Breyer: But if they were, what kind of standard should apply.
Olson: A uniform standard should be uniform.
Souter: OK, but we have--there's no question that the closest we can come now, under Florida law, is an intent of the voter standard. Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard, which went to a lower level, a more specific level than intent of the voter, and said, for example, "Count dimpled chads," or "Don't count dimpled chads," in your judgment would that be a violation of Article II?
Olson: I don't think it would be a violation of Article II, provided that--I mean, the first part of your question ...
Souter: All right. So if we went from the standard that existed before, the dimpled chads that hadn't--that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II, a complete change ...
Justice Antonin Scalia: Mr. Olson, it is also part of your case, is it not, that insofar as that language just quoted is concerned, the power of the circuit judge to prevent or correct any alleged wrong? It's part of your submission, I think, that there is no wrong when a machine does not count those ballots that it's not supposed to count.
Olson: That's absolutely correct, Justice Scalia. It would ...
Scalia: The voters who detach the chads entirely, and the machine as predicted does not count those chads, where those instructions are not followed, there isn't any wrong.
Olson: That's correct. This has been euphemistically referred to as legal votes that haven't been counted.
Souter: Now let me see if I've got this straight, Olson. You're saying that the Florida law, which specifies that the 'intent of the voter' shall be ascertained, is too vague to serve as a guideline for counting votes. And you're also saying that any attempt to more clearly define what is meant by 'intent of the voter' constitutes changing the laws after the election. So what you're really saying is that there is no valid way to count the votes in the state of Florida, and so the very act of counting the ballots is unconstitutional.
Olson: Well, that's not exactly what I'm saying, but kind of ...
Souter: Let me attempt to rephrase that before Scalia cuts me off ...
Scalia: Olson, these guys are kicking your ass! Let me get you off the hook here. Isn't it true that the ballots that haven't been counted yet were cast by people that are too stupid to vote?
Olson: Exactly! Finally, someone who gets it ...
Scalia: Is it not the voter's fault if the machines fail to punch the ballots correctly and completely, especially if the voters are Democrats?
Olson: Of course it is. And surely no one thinks that stupid people should decide this election, unless they happen to be wearing judicial robes.
Olson: Many people do not vote in the presidential election, even those that are voting for other offices.
Souter: But as to the undervotes, and as to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn't pick up, the majority of the Florida Supreme Court says you're wrong. They interpreted the statute otherwise. Are you saying here that their interpretation was so far unreasonable in defining legal votes as not to be a judicial act entitled, in effect, to the presumption of reasonable interpretation under Article II?
Olson: Yes, that is our contention.
Olson: The truth is that all of the voters whose ballots were not counted failed to make a selection for president.
Souter: Are you saying that none of those tens of thousands of ballots contain a clear choice for president?
Olson: Well, we haven't actually looked at them, or allowed anyone else to look at them, but that's the story we're trying to sell.
Breyer: And the question on Florida law is simply this, what the statute as I take it, the contest statute, lists grounds for contesting. One of those grounds is rejecting a sufficient number of legal votes, sufficient to place the election in doubt. And then the circuit judge is given the power to investigate that allegation, just to look into it.
Bush attorney Joseph Klock: Yes.
Breyer: So why would it be illegal under Florida law to have a recount just to investigate whether this allegation is or is not so?
Klock: The justice's question assumes that they are legal votes.
Breyer: There might be some in there that are legal under anybody's standard.
Klock: You honor, if they are not properly--if the ballot is not properly executed, it's not a legal vote.
Breyer: Is it not standard procedure in a contested election for the judiciary to investigate claims that legally cast ballots were excluded from the count? How else are we to determine if the claims are valid?
Klock: Well, I suppose so, if you're going to insist on fairness.
Breyer: So why would you characterize as illegal the actions of the Florida Supreme Court in ordering an examination and recount of those ballots?
Klock: The justice's question assumes that they are legal votes.
Breyer: Actually, my question assumed that the votes need to be examined before it can be determined if they are in fact legal votes. Jesus, you people are un-fucking-believable.
Klock: Well, we already know they are illegal.
Justice John Paul Stevens: [W]ould it not make sense to assume that the standard you use for damaged ballots would be the same standard you use in that situation?
Klock: I don't think so, sir.
Stevens: What standard would you use ...
Klock: Well ...
Stevens: ... in the situation I proposed then?
Klock: Justice Brennan, the difficulty is that under--I'm sorry.
Stevens: Now Mr. Klock, damaged ballots are counted, are they not? Can we not use the same standard for hand counting the undervotes that we use to hand count damaged ballots?
Klock: I must reiterate here that our position is that there are no circumstances under which those votes should be counted, or even looked at. As far as we're concerned, they don't exist.
Stevens: But if they did, what standard would you use to count undervotes ...
Klock: What undervotes?
Stevens: The ones we've been discussing here.
Klock: Oh shit. I thought I was talking to that dead guy who stepped down from the bench a decade ago. Can we start over?
Scalia: But what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.
Gore attorney David Boies: But that's true in any contest. Every single contest ...
Scalia: It's not added to the certification.
Boies: Yes, of course it is, your honor.
Scalia: You may do a review of the ballots and add more numbers, but as I read the Florida Supreme Court opinion, it said the secretary of state will certify these additional ...
Boies: Yes, because the contest procedure is a procedure to contest the certification.
Scalia: The certification, as rendered by the secretary of state, did not include those additional ballots for your client, and the Supreme Court directed that the certification would be changed to include those.
Boies: But, your honor, that is what happens every time there is a successful contest. The contest is a contest of the certification. You have the certification results ...
Scalia: It doesn't make any sense to me.
Scalia: The Florida Supreme Court had the nerve to order that additional legally cast and counted votes be added to Al Gore's certified vote tally. What's up with that?
Boies: The original certification was bogus, and we successfully contested it in court. The legal remedy was to adjust the certified vote totals to more accurately reflect the results of the election. That's pretty much standard procedure in a contest ...
Scalia: They can change the certification?
Scalia: You mean they can overrule Katherine Harris?
Scalia: But they changed the bogus numbers that Harris had already certified.
Thomas: (Even I understand what he's saying. I thought Scalia was supposed to be the smart one.)
Scalia: You Democrats speak in tongues.
Breyer: They gave an example. The example they gave in their brief was, there's a punch for Governor Bush and there's a punch for "write-in" and the write-in says, "I want Governor Bush." And so I think their implication is that that would have been rejected by the machine, but if you looked at it by hand, the intent of the voter would be clear. I don't know if there are such votes, but they say there might be.
Boies: There's nothing in the record that suggests there are such votes.
Breyer: The Bush team has yet another argument, and it's a real doozy. They're saying that if we hand count the undervotes, we also have to hand count all the overvotes. We all know that they actually don't want to count any of the votes and are just trying to make the recounting task as odious as possible, but they're arguing that some of the overvotes might be multiple votes for Bush. Some people may have crossed all the other names off the ballot, wrote in Bush for all of them, and punched all the chads. They're saying there could be thousands of such ballots.
Boies: And you're buying that? I give up. I'm outta here.