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U.S. Supreme Court presses Bush, Gore lawyers on jurisdiction, standards for hand recounts
By Raju Chebium
WASHINGTON (CNN) -- Republican and Democratic lawyers squared off before the U.S. Supreme Court on Monday over the hand counting of thousands votes rejected after a statewide machine recount of the 6 million votes cast in Florida on November 7.
Theodore Olson, lawyer for Republican presidential hopeful George W. Bush, and David Boies, arguing for Democrat Al Gore, presented arguments in the historic case that could decide who won the razor-thin presidential contest.
Bush v. Gore marked only the second time that the nation's highest court has taken on a presidential contest in its 210-year history. The U.S. Supreme Court accepted the case on Saturday, temporarily stopping manual recounts until it decides the case.
The Bush campaign appealed a 4-3 Florida Supreme Court ruling Friday ordering an examination of undervotes in many counties to determine "voter intent" and thereby ensure a fair outcome to the undecided presidential election in the state. "Undervotes" are those that were machine-rejected for failing to register a vote for president or for having been double-punched.
The first time the U.S. Supreme Court got involved in a presidential election was on December 1 in a case titled Bush v. Palm Beach County Canvassing Board.
In that matter, the Bush campaign appealed a November 21 ruling by the Florida court extending by 12 days the state's November 14 deadline to certify the statewide vote tally.
Reiterating a point the Bush campaign has made before, Olson said the Florida court violated Article II of the U.S. Constitution and the Title III federal law. Article II says legislatures have the authority to decide how electors will be chosen. Title III says the elector-selection process must be spelled out in laws passed before Election Day.
By usurping the legislature's authority, the Florida Supreme Court violated the Constitution and federal law in extending the November 14 statewide vote-certification deadline and further mandating hand recounts of what one Florida justice called some 170,000 votes but Boies said Monday is closer to 60,000 ballots.
"This was a major, major revision that took place on Friday," Olson said.
Justice Anthony Kennedy wanted to know why the case even belonged in federal courts, asking Olson, "Where is the federal question here?"
He also questioned whether the legislature could, under Article II, allow courts to review laws designed to spell out how electors will be chosen.
Olson said legislatures can allow judicial review, but "under no circumstances" can courts "completely reverse and revise" election laws as the Florida Supreme Court did, making that court's actions ripe for a second look by the nation's highest judicial body.
Boies argued that the U.S. Supreme Court should reject Bush's appeal because the Florida court interpreted state law and did not pass new legislation, a point the Gore campaign has made repeatedly.
The Friday ruling "does not reflect the desire to change the law," he said. "(The Florida court) was interpreting existing law."
But Kennedy said if the Florida court did indeed make new law, that might have been an Article II violation.
Boies responded that prior Florida Supreme Court decisions make it clear that the November 14 vote-certification deadline set by state law was not an "iron curtain" and that state courts could move that deadline.
Justices also sharply questioned the lawyers about the standards used in conducting the manual recounts of the undervotes the Florida court ordered on Friday.
The Florida court said Friday county election officials must conduct manual recounts under the "voter intent" standard and must begin counting immediately because of a looming December 12 deadline set by federal law for legislatures to "appoint" electors.
Different counties measure "voter intent" differently, Olson said. Some counties would count as a valid vote ballots where the paper was indented, while some others would accept only those ballots where the paper, or "chad," was pushed out at least partially, Olson noted.
Such differing standards would cause some votes to be given more weight than others, thereby violating Bush's due process rights under the 14th Amendment, Olson said.
The Bush campaign has argued that allowing "selective" recounts in some, not all, 67 counties, is a due process violation.
Justice Stephen Breyer pressed Olson over what standards the Bush campaign would consider fair since it rejects the "voter intent" legal standard.
Olson said an "indentation of the chad" might be acceptable.
However, he reiterated that hand recounts are subjective and the machine recount, done shortly after Election Day, is the most objective means to show whether Bush or Gore won the election.
"In this case, what we are concerned with is the intent in the little piece of paper called the ballot. Could each county have different results as to what intent is?" Kennedy asked Boies. "It presents now a federal question to us, to determine whether or not there is new law."
Different results could be construed as a due process violation, Justice David Souter suggested.
Boies said it was not necessary to have a uniform, statewide legal standard for doing manual recounts, arguing that the Florida Supreme Court has, since 1917, asked local officials to apply the "voter intent" standard to help resolve contested election results.
When asked how best to resolve the issue of different standards and a potentially unfair election outcome, Boies hesitated.
At Justice John Paul Stevens' prompting, Boies said, "I would tell them to count every vote," at which the audience erupted in laughter.
There were three questions before the U.S. Supreme Court in George W. Bush and Richard Cheney v. Albert R. Gore, Jr., according to legal briefs filed by Bush and Gore lawyers Sunday:
Whether the Florida Supreme Court violated Article II of the U.S. Constitution, which says state legislatures must decide the procedures for choosing electors.
Whether the Florida court violated the so-called Title II federal law, which says electors must be chosen under procedures spelled out in state laws passed before Election Day.
Whether the Florida court ruling Friday ordering manual recounts of undervotes in some of the state's 67 counties violates the 14th Amendment.
Those were essentially the same questions before the nation's highest court on December 1, when the court heard arguments in Bush v. Palm Beach Canvassing Board.
The issue then before the U.S. Supreme Court was whether the Florida court violated the federal constitution by doing three things: Rejecting Florida Secretary of State Katherine Harris's November 14 certification of the statewide tally, allowing manual recounts to continue in South Florida, and ordering 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 set aside the November 21 decision, remanding the matter to the Florida court for further explanation about whether the Florida justices relied on relied on the state constitution in their November 21 ruling or merely interpreted conflicting Florida election statutes.
On Friday, the Florida court issued a related ruling ordering the undervotes to be examined, including 9,000 votes in Miami-Dade County, which the Gore campaign believes could result in a large net gain for the Democratic contender.
The Bush camp immediately appealed to the nation's highest court. The Florida court's majority decision said the question of who won Florida -- and the state's crucial 25 electoral votes -- cannot be fairly resolved unless those undervotes were recounted to determine whom the voters meant to choose.
In an unexpected move, the U.S. Supreme Court on Saturday put a halt to the manual recounting. In a 5-4 decision 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 focuses on federal issues, recount standards in presidential election case
Supreme Court of the United States
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