Tags: Florida | Supreme | Court | Violated | Constitution | Bush | Team

Florida Supreme Court Violated Constitution, Bush Team Says

Thursday, 30 November 2000 12:00 AM

The Bush brief also said the Democrat-appointed Florida court violated federal law.

President-elect Bush asked the U.S. Supreme Court last week to take the case when it appeared that the new deadline – from Nov. 14 to last Sunday – might allow Al Gore to gain enough votes to overcome Bush's lead in the popular vote in Florida.

With only some hand counts turned in by Sunday, Bush still led Gore by 537 popular votes and was declared the winner by Florida's secretary of state. Bush has claimed Florida's 25 electoral votes and the White House on the strength of that declaration.

Whatever the U.S. Supreme Court decides after Friday's argument, the decision might not affect Gore's challenges to the final vote tally now in state court in Florida. However, whichever side wins this first round of U.S. Supreme Court action will gain an enormous psychological victory in the battle for public opinion.

All the parties filed "merit" briefs in the dispute with the U.S. Supreme Court Tuesday. Merit briefs outline the arguments that each side's lawyer will make in person Friday.

Thursday, the parties to the dispute – Bush, Gore, the Palm Beach County canvassing board and the Florida secretary of state and attorney general's offices – were scheduled to file "response" briefs.

In its Thursday brief, the Bush camp ripped into Gore's contention that the U.S. Supreme Court should stay out of the legal battle in Florida. It called the Gore arguments "lengthy and tortuous efforts to recharacterize the decision below as a modest, hardly noticeable, garden-variety act of ordinary statutory interpretation."

The Bush brief insisted "the Florida Supreme Court plainly rewrote the election laws in a number of significant respects," in violation of federal law. The Florida Supreme Court created "out of whole cloth, a new deadline for a selective, standardless, changing and unequal manual recount process for this particular election," the brief said.

The brief said the state high court's action "cannot be reconciled" with Article II of the Constitution, which says state legislatures designate the manner in which presidential electors are appointed.

The Gore camp insists that the Florida Supreme Court's action was a proper interpretation of the law as enacted by the legislature.

The Bush brief also said the state court's action should be "vacated," or thrown out, because it did not comply with federal law, which says that elections must be conducted under state laws as they exist on Election Day.

The Gore campaign filed its own "response" brief earlier Thursday.

Though the issue is not before the justices, the Gore campaign told the U.S. Supreme Court, among other things, that the Florida Legislature could not legally name its own slate of presidential electors, as its Republican majority has threatened to do if the legal contest goes on much longer.

The Gore brief, in paragraphs separate from the main argument, said Florida voters picked their choice on Nov. 7, but because of a "flawed" counting that choice was not clear.

The brief said, "[I]t is not self-evident that such direct appointment is even available" under the language of federal law.

"Congress has set a uniform national date for this process, which in the year 2000 fell on Nov. 7," the Gore brief said.

"There is no doubt that Florida made its choice on that date, although by a vote so close and under a counting process so flawed that the state's courts are still attempting to 'ascertain'… what the choice was. Accordingly, any state legislative attempt simply to appoint electors after the fact would appear to be federally pre-empted."

It is not clear whether the U.S. Supreme Court would rule on the issue. The justices told each side last week that they would rule on two questions: Whether the Florida Supreme Court's extension of the vote-counting deadline violated federal law, and whether it violated the Constitution.

The justices also asked each side to address the "consequences" of not allowing hand counts permitted by the extension.

Though both sides have now raised the side issue in their briefs, the U.S. Supreme Court has not agreed to answer the question of whether the state legislature could pick Florida's electors if a final choice by the voters is not made clear. In the normal course of its work, the U.S. Supreme Court does not rule on issues not directly before it.

However, the nation's highest court sometimes breaks its own rules when it feels the issue is important and could do in this case.

Gore's "response" brief to the U.S. Supreme Court Thursday argued that the Florida Supreme Court's action "did not enact new law or abrogate existing legislation," as charged by the Bush camp, and that the action did not violate either federal law or the Constitution.

(No. 00-836, Bush vs. Palm Beach County Canvassing Board et al.)

Copyright 2000 by United Press International. All rights reserved.

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The Bush brief also said the Democrat-appointed Florida court violated federal law. President-elect Bush asked the U.S. Supreme Court last week to take the case when it appeared that the new deadline – from Nov. 14 to last Sunday – might allow Al Gore to gain...
Thursday, 30 November 2000 12:00 AM
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