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U.S. Supreme Court focuses on federal issues, recount standards in presidential election case
WASHINGTON (CNN) -- Attorneys for Texas Gov. George W. Bush and Vice President Al Gore finished presenting their oral arguments to the U.S. Supreme Court in the case that could be the final showdown in the presidential election.
The court, in the case Bush v. Gore, is considering whether or not to overturn the Florida Supreme Court order for a manual recount of thousands of ballots that did not register a vote for president in machine counts. The justices agreed to hear the case and grant a stay blocking the count by a vote of 5-4.
Theodore Olson, Bush's attorney, had 35 minutes to present his argument for stopping the vote, followed by Florida Secretary of State Katherine Harris's attorney Joseph P. Klock Jr. Gore attorney David Boies had 45-minutes to argue that the counts should resume.
The court released an audio tapes and transcripts of the arguments, just minutes after the 90-minute session ended.
CNN Legal Analyst Greta Van Susteren was in the Supreme Court to hear Olson's arguments and said the nine justices were very active.
Justices Sandra Day O'Connor and Anthony Kennedy were the first to question Olson, asking whether there was a federal issue in the case, and whether the court should even be hearing the case. O'Connor and Kennedy are expected to be key swing votes in the apparently divided court.
Olson replied that the Florida Supreme Court stepped on the state legislature's role by ordering the recount, which is a violation of Article II Section 1 of the U.S. Constitution.
The justices also asked Olson what standards should be used, if the court decides to order the manual recount to resume.
Would it be appropriate, asked Justice Stephen Breyer, for the court to instruct the Leon County circuit court to ask Florida Secretary of State Katherine Harris to set a statewide standard? Olson said he thought that would be appropriate.
But Justice John P. Stevens wanted to know if Harris has not already set a standard since she has continually relied on "voter intent."
"Isn't that the standard," Stevens wanted to know.
Olson said he did not think so, noting that different counties had used different standards to determine voter intent.
After the session, Gore attorney David Boies described it as "a 45-minute interrogation."
If the court upholds the Florida Supreme Court's decision and lets the count go forward, Gore could cut into Bush's 537 vote lead in the race for Florida's 25 electoral votes. If not, Boies said Gore's legal fight will be over.
"If the Florida Supreme Court's opinion is reversed and the U.S. Supreme Court says no more votes will be counted, then that's the end of it," he said.
Gore camp's counter-arguments
CNN Legal Analyst Roger Cossack was in the Supreme Court to hear both sides' arguments and said Boies faced similar questions.
Cossack said Boies argued that Florida law does set a standard and that the Florida legislature, by definition, granted the state Supreme Court authority to review election laws the same way it reviews any other statute.
Boies argued that the Florida court did not make new law as Bush's lawyers alleged because state law allows "judicial determination" of any election to "determine the rightful winner of an election." That provision giving a role to state judges is also part of the Title III federal law, Gore's lawyers argued.
Justice Sandra Day O'Connor expressed concern that the Florida Supreme Court did not address the issues the U.S.Supreme Court raised when it remanded the decision to extend the deadline for certifying the state's vote count.
Boies argued that the Supreme Court's ruling dealt with the certification stage of the election, while Monday's case concerned the contest phase.
The Gore team wants the U.S. Supreme Court to uphold the Florida ruling and lift the "stay" it issued Saturday blocking manual recounts "because of the pressing need to complete the counting of votes."
The December 12 deadline
Why a "pressing need?"
Because the Title III law says all 50 states must have in place their electoral slate by Tuesday.
That means state legislatures must determine by that day who won the presidential election in their state and award the winner the state's electors.
Because the outcome of the November 7 vote remains undecided in Florida, the Republican-controlled state legislature began a special session Friday to choose electors.
The Electoral College, again under Title III, will vote for president on December 18.
U.S. Supreme Court and Election 2000
The arguments presented by the Bush and Gore teams in the latest matters before the U.S. Supreme Court are similar to the points they made on December 1, the first time lawyers for the two presidential hopefuls appeared before the high court in a bid to decide the winner.
The issue before the U.S. Supreme Court on December 1 was whether the Florida court violated the federal Constitution when it: - Rejected Florida Secretary of State Katherine Harris's November 14 certification of the statewide tally; - allowed manual recounts to continue in South Florida; - ordered Harris to include the manually recounted results in re-certifying the vote.
The Florida court set a November 26 deadline for hand recounting to be completed and Harris to re-certify the statewide tally.
On December 4, the U.S. Supreme Court did not rule on the questions in Bush v. Palm Beach County Canvassing Board. In an unsigned opinion, the court remanded the matter to the Florida court, seeking clarification on whether the Florida justices relied on the state constitution in their November 21 ruling or merely interpreted conflicting Florida election statutes.
That distinction is key because courts can only interpret laws passed by legislatures under the separation of powers doctrine, the bedrock of the U.S. political and judicial system.
After the Florida Supreme Court handed the Gore team a victory on Friday by mandating the hand recounting of 170,000 votes statewide, the Bush camp immediately appealed to the U.S. Supreme Court.
The Florida court, in a 4-3 decision, also ordered all counties that had not done manual recounting to immediately begin examining uncounted votes.
Thousands of ballots across Florida were rejected because they either did not register a vote for president or were double-punched, rendering them illegal under state law.
The U.S. Supreme Court on Saturday put a halt to the manual recounting.
In a 5-4 order granting the Bush team's request for a "stay," the nation's highest court said recounting must be suspended until it resolves the matter of whether the Florida high court violated the U.S. Constitution.
U.S. Supreme Court hears Florida election case -- again
Supreme Court of the United States
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