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U.S. Supreme Court justices hearing oral arguments in historic presidential election case
WASHINGTON (CNN) -- Opening arguments are under way in the first-ever presidential election case to reach the U.S. Supreme Court.
Democrat Al Gore's legal team will urge the U.S. Supreme Court to let that decision stand. The Gore team also will argue that the question of who won the presidential contest in Florida belongs in state courts, not the federal system, according to written filings.
The U.S. Supreme Court will hear 1 1/2 hours of arguments beginning at 10 a.m. Friday in Bush v. Palm Beach County Canvassing Board, a historic case that pulls the nation's highest court into the controversy surrounding the razor-thin Florida vote November 7.
At issue in the case is whether the Florida Supreme Court violated federal election laws and the U.S. Constitution by extending from November 14 to November 26 the deadline for certifying the statewide vote in Florida.
In a 7-0 decision, the Florida Supreme Court ordered Florida Secretary of State Katherine Harris to add manually recounted vote totals from a handful of Florida counties to the statewide total and "certify the vote" 12 days after the deadline imposed by state law.
Because certification determines who wins the Florida election and its crucial 25 electoral votes, the Bush team argues that the Florida Supreme Court essentially overstepped its authority by postponing the certification.
Bush seeks to overturn Florida decision
Bush's lawyers want the U.S. Supreme Court to overturn the Florida Supreme Court's decision, saying it violates Article II of the U.S. Constitution, which says legislatures, not the courts, must appoint the electors.
They also accused the Florida Supreme Court of violating a section of the so-called "Title III" federal election law, which says the electors must be chosen by a process spelled out in statutes passed prior to Election Day.
Many years ago, the Florida Legislature passed laws before spelling out the elector-selection process. One of those laws requires Florida's 67 counties to submit their vote totals by November 14 so a statewide winner can be determined and awarded the electoral votes, the Bush side has argued.
By extending the November 14 deadline, the Florida Supreme Court acted as a legislature, which makes laws, instead of a court, which interprets laws, the Bush team has argued.
"The simple truth is that the Florida Legislature established clear, unambiguous and sensible statutory deadlines," Bush's lawyers wrote in arguments submitted Thursday, the last of a series of papers filed by both sides. "The Florida Supreme Court revoked those deadlines and essentially terminated the secretary's statutorily granted authority."
They also have accused the Florida court of violating Title III by announcing "a new framework and timetable for resolving controversies over the presidential election results in that state."
By extending the certification deadline, the Florida Supreme Court also made it possible for the votes that would have been rejected as invalid on Election Day to be counted as valid during manual recounts, lawyers for Bush argued in papers filed Thursday.
"Such post-election changes violate due process," they wrote, referring to the due process clause of the 14th Amendment, which requires the equal application of laws within states. "Congress has decided that in the election process in particular, retroactive new rules are fundamentally and unacceptably unfair."
The Gore response
The Gore team, in papers filed Thursday, said the Florida Supreme Court did not usurp the Legislature's authority and was only interpreting contradictory state elections laws and reaching a verdict based on its own judicial reasoning.
One state election law said the secretary of state "shall" ignore hand recounts after the November 14 deadline and another said she "may" do so, the Gore team argued.
Gore's lawyers also invoked the historic reluctance of federal courts to get involved in state election problems unless there are explicit violations of the U.S. Constitution or federal laws.
Gore's lawyers argued that Bush wants "this court's assistance in bending settled legal doctrines and deeply rooted constitutional principles, and in disregarding the plain language of congressional enactments -- all based on a distorted view of the Florida Supreme Court's decision."
Neither Article II nor Title III "prevents a state legislature from giving a state court the power to interpret its election code," Gore's lawyers wrote. "Here, Florida's Legislature did exactly that. ... There is no basis for upsetting the decision of the Florida Supreme Court."
Under Florida law, the secretary of state has the "discretion" to decide whether to accept vote totals filed after November 14. State law also says the deadline may be extended if there is clear evidence of voter fraud or mechanical problems with balloting machines.
Background of the case
Harris wanted to certify the statewide vote on November 14. That total, based on the initial November 7 tally and a machine recount, showed Bush beating Gore by a narrow margin -- and likely winning the presidency.
All 67 Florida counties filed their countywide tallies with Harris by November 14. But Palm Beach, Broward and Miami-Dade counties were either conducting manual recounts or considering hand counts and wanted to submit "amended" tally results to Harris after November 14. The counties wanted more time because legal challenges to the hand counts caused them to miss the deadline, they said.
Gore's lawyers sued Harris in Florida state court seeking to force her to accept the recounts from the heavily Democratic South Florida jurisdictions, where Gore was likely to have received more votes than Bush.
A Florida trial court ruled that Harris had not abused her "discretion," but the Florida Supreme Court disagreed, pointing out a discrepancy in state laws. To resolve the issue, the courts set the new deadline and told Harris to accept manually recounted vote totals.
The Bush team appealed to the U.S. Supreme Court.
Friday's hearing comes 11 days before yet another deadline set by federal law. All state legislatures must "appoint, " or formally name, their electors by December 12.
Public interest high
Because of the intense public interest in the oral arguments in the case, the court is taking the unprecedented step of providing an audio tape of the proceedings "as soon as possible" after the arguments.
Court officials say this marks the first time in its history the Supreme Court will expedite the release of oral arguments, and the first time a same-day (or even same-month) broadcast of the arguments will be possible.
News organizations had asked the court to allow them to televise the proceedings -- something the court has never allowed -- but were turned down. The court offered the tapes instead.
Gore camp says time is running out for ballot recounts
Supreme Court of the United States
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