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Bush, Gore U.S. Supreme Court briefs address constitutional questions
WASHINGTON (CNN) -- The U.S. Supreme Court is considering written arguments from the Bush and Gore campaigns on whether the Florida Supreme Court overstepped its authority when it ruled manual recounts should be included in the state's final presidential election totals.
Attorneys for Texas Gov. George W. Bush and Vice President Al Gore filed their initial briefs Tuesday afternoon, just before the 4 p.m. EST deadline set by the court.
The court agreed to answer two questions presented in Bush's appeal of the Florida Supreme Court's decision to set a new deadline for certifying the results of the November 7 presidential vote:
Did the Florida Supreme Court violate the 14th Amendment's Due Process Clause and Article II of the U.S. Constitution by ordering Secretary of State Katherine Harris to include hand recounts in her final election tally and setting a new deadline for certification? Specifically, the Bush team argues that the Florida court made law -- instead of reviewing it -- when it allowed hand recounts to continue through the weekend. The court, they argued, changed the rules halfway through the process.
Did the state Supreme Court interfere with the state legislature's authority to choose electors, which is guaranteed under Article II of the U.S. Constitution?
"The question they are going to consider is whether the Florida Supreme Court changed the law enacted by the Florida Legislature by arbitrarily extending the deadline for hand recounts by six days over what the Legislature had provided," said Dick Thornburgh, who served as attorney general in the Bush administration. "That's a pretty meaty constitutional and legal question."
Intriguingly, the court also has asked lawyers for both sides to offer proposed remedies in case it rules that the Florida Supreme Court overstepped its authority.
"Put another way, the court is asking, 'Even if you're right, what do you want us to do about it?' " said David Boies, Gore's top lawyer in Florida. Bush attorney George Terwilliger said precedent will show "courts in our country do not run everything."
In court papers filed Tuesday, the Bush campaign asked the U.S. Supreme Court to vacate the Florida Supreme Court's decision and return to the election results that were certified on November 12. Bush's lawyers wrote that the Florida Supreme Court "consciously and boldly overrode Florida's 'laws enacted prior to' election day and replaced them two weeks later with laws of its own invention."
The brief said overturning the Florida Supreme Court decision would allow the state officials to certify the election results and "thus allow the Electoral College process to reach a lawful, final, and conclusive resolution of the presidential election."
The Gore campaign argued that election disputes should be handled by the states, not the federal government.
Its brief argued that the Florida Supreme Court decision did not amount to a retroactive change to the state's election laws. It said the court "simply used garden variety principles of statutory interpretation to resolve ambiguities and reconcile conflicting provisions within the Florida Election Code."
The brief said the Florida Supreme Court's authority to interpret election laws was nothing new, citing the 1876 case State ex rel. Drew v. McLin that required the state board to consider the votes of certain counties.
It said that overturning the ruling would undermine the authority of the judiciary to determine the rule of law.
The campaigns must file responses to the initial briefs by Thursday, and oral arguments are scheduled for Friday.
The U.S. Supreme Court must bear in mind a December 12 deadline -- mandated by law -- for the Florida Legislature to approve a slate of electors, just six days before the Electoral College convenes in the 50 state capitals.
The case before the Supreme Court stems from a Bush challenge to a recount in Palm Beach County, one of four counties where Gore -- trailing by just a three-digit margin out of 6 million ballots cast -- sought hand recounts to discover any ballots wrongly discarded in a mechanical recount.
The Supreme Court -- which has shown great deference to state authorities in recent years -- surprised many observers by agreeing to hear the Bush appeal.
"I'm sure a sitting Supreme Court justice believes that providing some final closure on all these legal arguments might be a good thing here," Lanny Davis, former special counsel to President Clinton, said.
CNN Senior Washington Correspondent Charles Bierbauer contributed to this report.
U.S. Constitution, Article II
Vote certification does not stop legal fight
Florida State Courts
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