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U.S. Supreme Court justices question whether to intervene in contested presidential election
WASHINGTON (CNN) -- The U.S. Supreme Court on Friday heard for the first time in its 210-year history a case involving a presidential election, in which the nine justices weighed a decision by Florida's highest court against the U.S. Constitution and federal and state elections laws.
Attorneys for Republican nominee George W. Bush and Democratic nominee Al Gore came under sharp questioning from the justices, who sought to determine why Bush v. Palm Beach County Canvassing Board even belongs in the federal system and the legal basis for the Florida Supreme Court's November 21 ruling.
The Florida Supreme Court, agreeing with Gore's legal team, ruled that Florida Secretary of State Katherine Harris abused her discretion by deciding to reject manually recounted vote totals that some Florida counties wanted to file after the November 14 vote-certification deadline set by the Florida Legislature.
The Florida court, noting a discrepancy between two state statutes that said Harris "shall" and "may" decide to reject late-filed returns, ordered Harris to accept the returns and add them to the statewide tally before certifying the Florida vote.
By making such a ruling, Bush attorney Theodore Olson argued Friday, the Florida court did the work of the legislature by effectively passing a new law extending the November 14 deadline.
-Justice Anthony Kennedy
The seven Florida justices also violated the so-called Title III federal law that says electors must be chosen based on laws passed before Election Day, Olson argued.
If the Florida Supreme Court had merely interpreted state election laws instead of making them, Florida's post-election process may not have descended into "controversy, dispute and chaos," Olson said, adding that the court overturned a "carefully enacted plan by Florida Legislature."
"The state Supreme Court did not pay much attention to the federal statute. It was obviously aware of it," Olson said, adding that the court "blew right past" Title III.
Title III, Olson argued, codifies Article II of the U.S. Constitution, which says state legislatures must appoint electors, not any other governmental body. By passing a new law, the Florida Supreme Court also violated the Constitution, he argued.
But several justices seemed unconvinced. Justice Kennedy appeared to echo their sentiments when he said, "We are looking for a federal issue here."
Justice David Souter said maybe Congress should address the issue of who won the Florida presidential contest.
"Why should the federal judiciary be interfering?" he said.
Justice Ruth Bader Ginsburg said the U.S. Supreme Court must respect the Florida Supreme Court.
"I do not know of any case where we have impugned a state supreme court the way you are doing in this case. I mean, in case after case, we have said we owe the highest respect to what the ... state supreme court says is the state's law," Ginsburg said.
Olson argued that in this case the Florida Supreme Court overstepped its authority in a presidential election, a matter of national interest, and the U.S. Supreme Court should intervene.
-Justice Sandra Day O'Connor
Gore side's arguments
Gore attorney Laurence Tribe said the Florida Supreme Court was trying to resolve the uncertain outcome of the razor-thin presidential race in Florida, nothing more.
"A rather common technique is a recount, sometimes a manual recount, sometimes taking more time," he said, offering that as the justification for the November 26 deadline imposed by the Florida court.
But several justices sharply questioned him on whether the Florida Supreme Court violated Article II and the separation of powers doctrine, which says legislatures may pass laws and courts can only interpret them.
"It had to register somehow with the Florida courts that that statute was there and that it might be in the state's best interest not to go around changing the law after the election," Justice Sandra Day O'Connor said, referring to Title III.
Tribe replied that the Florida court did not misinterpret Title III and therefore there was no federal issue presented to the nation's highest court.
O'Connor pressed the point, saying Article II says legislatures must decide how to appoint electors, not the courts or any other governmental body.
Tribe replied that the Gore team's reading of Article II shows that the legislature is within its constitutional right to delegate that power to the courts.
Chief Justice William Rehnquist said the Florida court's opinion clearly suggests that the court was not interpreting the language of the state election statutes but basing its decision to extend the certification deadline on the Florida Constitution -- in violation of a prior U.S. Supreme Court decision.
-Justice Antonin Scalia
Justice Antonin Scalia agreed, saying: "I read the Florida court's opinion as quite clearly saying, 'Having determined what the legislative intent was, we find that our state Constitution trumps that legislative intent,'" he said. "I don't think there's any other way to read it. And that is a real problem, it seems to me, under Article II."
The U.S. Supreme Court heard a total of 1 1/2 hours of oral argument from both sides. It remained unclear when the justices would issue a decision, though legal observers expect a quick ruling.
U.S. Constitution, Article II
Minute by minute: How the U.S. Supreme Court hearing will proceed
Florida State Courts
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