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U.S. Supreme Court hears Florida election case -- again

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In this story:

Key questions in the case

The Bush team's written arguments

Gore camp's counter-arguments

The December 12 deadline

U.S. Supreme Court and Election 2000

RELATED STORIES, SITES icon



WASHINGTON (CNN) -- The U.S. Supreme Court will hear oral arguments Monday in a case that could break the stalemate in the battle for the White House between Republican George W. Bush and Democrat Al Gore.

The nation's highest court again will wade into the contested presidential election in Florida when it hears the Bush campaign's appeal of the Florida Supreme Court's ruling on Friday. The court will hear oral arguments at 11 a.m. Monday in George W. Bush and Richard Cheney v. Albert R. Gore, Jr., otherwise known as Bush v. Gore. (Read the Bush brief)

  U.S. SUPREME COURT DOCUMENTS
Read the Bush brief

Read the Gore brief

Read the U.S. Supreme Court order granting a stay of recounts

Election-related filings

Documents courtsey of FindLaw

(These require Adobe Acrobat Reader)
 
  RESOURCE
How the U.S. Supreme Court voted (December 9)
 
  IN-DEPTH
 
  ALSO
 
 VIDEO
CNN's Charles Bierbauer reports on the showdown (December 10)

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(QuickTime, Real or Windows Media)

CNN's Mike Boettcher reports on what may happen if the election is not settled by the courts (December 10)

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(QuickTime, Real or Windows Media)
 
  VIDEO / AUDIO
Watch video, hear audio related to the U.S. Supreme Court Hearing (December 1)

 
  INTERACTIVE
 

The Florida court on Friday ordered hand recounts of 170,000 votes cast in various Florida counties, including 9,000 "undervotes" in Miami-Dade County. That ruling came during Gore's "contest" of the November 26 statewide vote certification showing Bush ahead by 537 votes.

The U.S. Supreme Court on December 1 heard Bush v. Palm Beach County Canvassing Board in which Bush appealed a November 21 Florida Supreme Court ruling ordering hand recounts to proceed in South Florida and moving by 12 days the certification deadline to November 26. That case stemmed from Gore's "protest" of the way the statewide vote originally was certified on November 14.

By accepting Bush v. Gore the nation's highest court is venturing into a presidential election for only the second time in its 210-year history.

Key questions in the case

The Bush team wants the U.S. Supreme Court to resolve three questions:

 •  Whether the Florida Supreme Court "erred in establishing new standards for resolving presidential contests" and thereby violated Article II of the U.S. Constitution, which says state legislatures must decide the procedures for choosing electors.

 •  Whether the Florida court violated the so-called Title III federal law, which says electors must be chosen under procedures spelled out in state laws passed before Election Day. The Bush team has long argued that the Florida Supreme Court essentially made new law by extending the November 14 deadline set by state law for certifying the statewide vote tally.

 •  Whether the use of "arbitrary, standardless and selective manual recounts" of the votes cast in some, not all, of Florida's 67 counties violates the 14th Amendment of the U.S. Constitution. That amendment says all people must be treated equally. By allowing some counties to recount the votes, the Bush camp has long argued, the Florida Supreme Court gives more weight to the votes cast in those counties.

The Bush team's written arguments

In legal briefs filed Sunday afternoon in Bush v. Gore Bush's lawyers accused the Florida court of failing to explain its legal reasoning in the prior case as ordered by the U.S. Supreme Court.

Just four days after the U.S. Supreme Court demanded an explanation, the Florida court "announced sweeping and novel procedures for recounting selected Florida ballots to determine anew" the winner of the razor-thin presidential contest in Florida, Bush lawyers wrote.

The November 14 certification, which followed a machine recount of 6 million votes cast in Florida in all 67 counties, showed Bush beating Gore by 930 votes.

The November 26 re-certification showed Bush ahead by 537 votes. The Florida court's decision Friday essentially would force a third certification after manual recounts of uncounted votes in several Florida counties.

waiting
Potential Supreme Court spectators wait to view Monday's proceedings at the U.S. Supreme Court in Washington  

"This latest manual recount regime would be conducted according to varying -- and unspecified -- standards, by officials unspecified in Florida election law, and according to an ambiguous and unknowable timetable," Bush lawyers wrote.

"The court's newly devised scheme ... is plainly arbitrary, capricious, unequal and standardless," the Bush team alleged, adding that Article II of the U.S. Constitution clearly gives state legislatures "exclusive authority" to decide how to choose presidential electors.

"This case is the quintessential illustration of what will inevitably occur in a close election where the rules for tabulating ballots and resolving controversies are thrown aside," they said.

The Florida court's decision, they said, "has created a regime virtually guaranteed to incite controversy, suspicion and lack of confidence" in the outcome of the election and the process itself.

Gore camp's counter-arguments

Gore's lawyers argued in legal briefs submitted Sunday that the Florida Supreme Court on Friday was right in ruling that "in order to determine whether lawfully cast ballots have been wrongfully excluded from the certified vote tally in this election, they must be examined." (read the Gore brief)

"This is basic, essential to our democracy, and to all that gives it legitimacy," they wrote. "The central question posed by this case is whether provision of federal law forecloses the Florida Supreme Court from applying, interpreting, and enforcing the statutes enacted by the Florida Legislature."

Gore's team argued that the Florida Supreme Court did not make new law as Bush's lawyers alleged because state law allows "judicial determination" of any election to "determine the rightful winner of an election." That provision giving a role to state judges is also part of the Title III federal law, Gore's lawyers argued.

The Florida court was merely interpreting state election laws, Gore's lawyers wrote, urging the U.S. Supreme Court to stay out of the business of a state's highest court.

"Such intervention would run an impermissible risk of tainting the result of the election in Florida -- and thereby the nation," Gore's lawyers wrote.

Referring to a 1964 U.S. Supreme Court decision, Gore's lawyers said the court has long championed people's right to vote and have those votes counted. Gore's lawyers also accuse the Bush team of asking the U.S. Supreme Court to prevent all votes from being counted in Florida, a move they say would violate precedent.

Gore lawyers took the Bush team to task for "pejorative characterizations" of the Florida court's ruling.

"The Florida court did not 'make new law' or establish any new legal standards that conflict with legislative enactments," the Gore team wrote. "Rather, the court engaged in a routine exercise of statutory interpretation."

The Gore team wants the U.S. Supreme Court to uphold the Florida ruling and lift the "stay" it issued Saturday blocking manual recounts "because of the pressing need to complete the counting of votes."

The December 12 deadline

Why a "pressing need?"

Because the Title III law says all 50 states must have in place their electoral slate by Tuesday.

That means state legislatures must determine by that day who won the presidential election in their state and award the winner the state's electors.

Because the outcome of the November 7 vote remains undecided in Florida, the Republican-controlled state legislature began a special session Friday to choose electors.

The Electoral College, again under Title III, will vote for president on December 18.

U.S. Supreme Court and Election 2000

The arguments presented by the Bush and Gore teams in the latest matters before the U.S. Supreme Court are similar to the points they made on December 1, the first time lawyers for the two presidential hopefuls appeared before the high court in a bid to decide the winner.

The issue before the U.S. Supreme Court on December 1 was whether the Florida court violated the federal Constitution when it: - Rejected Florida Secretary of State Katherine Harris's November 14 certification of the statewide tally; - allowed manual recounts to continue in South Florida; - ordered Harris to include the manually recounted results in re-certifying the vote.

The Florida court set a November 26 deadline for hand recounting to be completed and Harris to re-certify the statewide tally.

On December 4, the U.S. Supreme Court did not rule on the questions in Bush v. Palm Beach County Canvassing Board. In an unsigned opinion, the court remanded the matter to the Florida court, seeking clarification on whether the Florida justices relied on the state constitution in their November 21 ruling or merely interpreted conflicting Florida election statutes.

That distinction is key because courts can only interpret laws passed by legislatures under the separation of powers doctrine, the bedrock of the U.S. political and judicial system.

After the Florida Supreme Court handed the Gore team a victory on Friday by mandating the hand recounting of 170,000 votes statewide, the Bush camp immediately appealed to the U.S. Supreme Court.

The Florida court, in a 4-3 decision, also ordered all counties that had not done manual recounting to immediately begin examining uncounted votes.

Thousands of ballots across Florida were rejected because they either did not register a vote for president or were double-punched, rendering them illegal under state law.

The U.S. Supreme Court on Saturday put a halt to the manual recounting.

In a 5-4 order granting the Bush team's request for a "stay," the nation's highest court said recounting must be suspended until it resolves the matter of whether the Florida high court violated the U.S. Constitution.



RELATED STORIES:
Scalia and Stevens clash over recount stay in Bush v. Gore
December 10, 2000
Possibility of Electoral College defections raised
December 10, 2000

RELATED SITES:
Supreme Court of the United States
Supreme Court of Florida


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