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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:

graphic CASE FILE
Reviewing the Vote: The U.S. Supreme Court reviews the Florida election case
Key election-related petitions and briefs filed with the U.S. Supreme Court.
(These require Adobe® Acrobat® Reader™)

U.S. Supreme Court brief filed by George Bush - November 28 (FindLaw)
U.S. Supreme Court brief filed by Al Gore - November 28 (FindLaw)

More documents:
Supreme Court orders granting and denying certiorari - November 24
Bush Reply Brief to U.S. Supreme Court in Siegel v. LePore - November 24 (FindLaw)
Bush Reply Brief to U.S. Supreme Court in Bush v. Palm Beach County Canv. Board - November 24 (FindLaw)
Gore response to Bush appeal, Bush v. Palm Beach County Canvassing Board and Siegel v. LePore - November 23 (FindLaw)
Bush petition for writ of certiorari to the U.S. Supreme Court, Siegel v. LePore - November 22 (FindLaw)
Bush petition for writ of certiorari to the U.S. Supreme Court, Bush v. Palm Beach County Canvassing Board - November 22 (FindLaw)

Bush appeals to the Supreme Court in Law Library
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• 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
14th Amendment to the U.S. Constitution
1st Amendment to the U.S. Constitution
United States Code, Title 3, Section 5

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

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