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U.S. Supreme Court justices question whether to intervene in contested presidential election


In this story:

Justices unconvinced

Gore side's arguments


WASHINGTON (CNN) -- The U.S. Supreme Court on Friday heard for the first time in its 210-year history a case involving a presidential election, in which the nine justices weighed a decision by Florida's highest court against the U.S. Constitution and federal and state elections laws.

graphic AUDIO

grapchi Gore attorney Laurence Tribe and Justice Sandra Day O'Connor discuss authority in the Florida state legislature

406/39 sec.
WAV sound

grapchi Supreme Court Justice Ruth Bader Ginsburg and Theodore Olson on the role of the ruling of Florida's state supreme court vs. the question of federal rights

659/60 sec.
WAV sound
graphic VIDEO
Listen to the Supreme Court hearing (with CNN Radio commentary on who is speaking) (December 1)

Part 1 | Part 2 | Part 3
Part 4 | Part 5 | Part 6
(QuickTime, Real or Windows Media)

CNN's Burden of Proof reviews U.S. Supreme Court hearing (December 1)
Part 1 | Part 2
(QuickTime, Real or Windows Media)
graphic CASE FILE
• Reviewing the Vote: The U.S. Supreme Court reviews the Florida election case
• Who's Who: Court and lawyer profiles
• Legalese: A layman's guide to the election case
Virtual tour of the U.S. Supreme Court
graphic ALSO
Scholars search oral arguments for clues to how U.S. Supreme Court will decide election case
• Minute by minute: How the U.S. Supreme Court hearing will proceed
CNN's Charles Bierbauer: Case should help states reevaluate their election laws
• Legal analyst Greta van Susteren: No cameras, but lots of action
• Legal analyst Roger Cossack: High anxiety before the high court
Key election-related petitions and briefs filed with the U.S. Supreme Court.
(These require Adobe® Acrobat® Reader™)

Article III of the U.S. Constitution (FindLaw)
Oral arguments schedule (FindLaw)
Reply brief of Petitioner Bush (FindLaw)
Reply Brief of Respondents Gore and Florida Democratic Party (FindLaw)
U.S. Supreme Court brief filed by George Bush (FindLaw)
U.S. Supreme Court brief filed by Al Gore (FindLaw)
U.S. Supreme Court order agreeing to hear Bush v. Palm Beach County Canvassing Board
Bush petition for writ of certiorari to the U.S. Supreme Court, Siegel v. LePore (FindLaw)

More related documents

Attorneys for Republican nominee George W. Bush and Democratic nominee Al Gore came under sharp questioning from the justices, who sought to determine why Bush v. Palm Beach County Canvassing Board even belongs in the federal system and the legal basis for the Florida Supreme Court's November 21 ruling.

The Florida Supreme Court, agreeing with Gore's legal team, ruled that Florida Secretary of State Katherine Harris abused her discretion by deciding to reject manually recounted vote totals that some Florida counties wanted to file after the November 14 vote-certification deadline set by the Florida Legislature.

The Florida court, noting a discrepancy between two state statutes that said Harris "shall" and "may" decide to reject late-filed returns, ordered Harris to accept the returns and add them to the statewide tally before certifying the Florida vote.

By making such a ruling, Bush attorney Theodore Olson argued Friday, the Florida court did the work of the legislature by effectively passing a new law extending the November 14 deadline.

"We are looking for a federal issue here."
-Justice Anthony Kennedy

The seven Florida justices also violated the so-called Title III federal law that says electors must be chosen based on laws passed before Election Day, Olson argued.

If the Florida Supreme Court had merely interpreted state election laws instead of making them, Florida's post-election process may not have descended into "controversy, dispute and chaos," Olson said, adding that the court overturned a "carefully enacted plan by Florida Legislature."

"The state Supreme Court did not pay much attention to the federal statute. It was obviously aware of it," Olson said, adding that the court "blew right past" Title III.

Title III, Olson argued, codifies Article II of the U.S. Constitution, which says state legislatures must appoint electors, not any other governmental body. By passing a new law, the Florida Supreme Court also violated the Constitution, he argued.

Justices unconvinced

But several justices seemed unconvinced. Justice Kennedy appeared to echo their sentiments when he said, "We are looking for a federal issue here."

Justice David Souter said maybe Congress should address the issue of who won the Florida presidential contest.

"Why should the federal judiciary be interfering?" he said.

Justice Ruth Bader Ginsburg said the U.S. Supreme Court must respect the Florida Supreme Court.

"I do not know of any case where we have impugned a state supreme court the way you are doing in this case. I mean, in case after case, we have said we owe the highest respect to what the ... state supreme court says is the state's law," Ginsburg said.

Olson argued that in this case the Florida Supreme Court overstepped its authority in a presidential election, a matter of national interest, and the U.S. Supreme Court should intervene.

"It had to register somehow with the Florida courts that that statute was there and that it might be in the state's best interest not to go around changing the law after the election."
-Justice Sandra Day O'Connor

Gore side's arguments

Gore attorney Laurence Tribe said the Florida Supreme Court was trying to resolve the uncertain outcome of the razor-thin presidential race in Florida, nothing more.

"A rather common technique is a recount, sometimes a manual recount, sometimes taking more time," he said, offering that as the justification for the November 26 deadline imposed by the Florida court.

But several justices sharply questioned him on whether the Florida Supreme Court violated Article II and the separation of powers doctrine, which says legislatures may pass laws and courts can only interpret them.

"It had to register somehow with the Florida courts that that statute was there and that it might be in the state's best interest not to go around changing the law after the election," Justice Sandra Day O'Connor said, referring to Title III.

Tribe replied that the Florida court did not misinterpret Title III and therefore there was no federal issue presented to the nation's highest court.

O'Connor pressed the point, saying Article II says legislatures must decide how to appoint electors, not the courts or any other governmental body.

Tribe replied that the Gore team's reading of Article II shows that the legislature is within its constitutional right to delegate that power to the courts.

Chief Justice William Rehnquist said the Florida court's opinion clearly suggests that the court was not interpreting the language of the state election statutes but basing its decision to extend the certification deadline on the Florida Constitution -- in violation of a prior U.S. Supreme Court decision.

" seems to me, under Article II, because, in fact, there is no right of suffrage under Article II. There's a right of suffrage in voting for the legislature, but Article II makes it very clear that the legislature can, itself, appoint the electors."
-Justice Antonin Scalia

Justice Antonin Scalia agreed, saying: "I read the Florida court's opinion as quite clearly saying, 'Having determined what the legislative intent was, we find that our state Constitution trumps that legislative intent,'" he said. "I don't think there's any other way to read it. And that is a real problem, it seems to me, under Article II."

The U.S. Supreme Court heard a total of 1 1/2 hours of oral argument from both sides. It remained unclear when the justices would issue a decision, though legal observers expect a quick ruling.

U.S. Constitution, Article II
14th Amendment to the U.S. Constitution
1st Amendment to the U.S. Constitution
United States Code, Title 3, Section 5

Minute by minute: How the U.S. Supreme Court hearing will proceed
November 30, 2000
Gore team asks Florida Supreme Court to speed recount
November 29, 2000
Bush, Gore U.S. Supreme Court briefs address constitutional questions
November 28, 2000
Vote certification does not stop legal fight
November 27, 2000
Constitutional scholars surprised by U.S. Supreme Court decision to hear Florida election case
November 24, 2000
Bush, Harris urge end to Florida recount; Gore seeks uniform standard
November 19, 2000
Gore asks Florida high court to set standards for recount
November 19, 2000
Presidential vote recounts yield few changes so far, officials say
November 19, 2000
Democrats protest exclusion of ballots in Palm Beach County
November 19, 2000
Lieberman says Dems not trying to block absentee ballots
November 19, 2000
Congress studying electoral college scenarios
November 19, 2000
Bush camp blasts 'flawed' count
November 18, 2000
Candidates' lawyers head for court showdown in Florida
November 18, 2000
Manual recounts continue as court refuses Republican request for a halt
November 18, 2000

Florida State Courts
Florida Southern District Court
Electoral College
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Palm Beach County government

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