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Constitutional scholars surprised by U.S. Supreme Court decision to hear Florida election case

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- Constitutional law scholars expressed surprise Friday at the decision by the U.S. Supreme Court to hear the Florida election appeal brought by Republican presidential hopeful George W. Bush and offered differing explanations for why the court accepted the case.

COURT DOCUMENTS Key election-related petitions and briefs filed with the U.S. Supreme Court. (These require Adobe® Acrobat® Reader™) • Supreme Court orders granting and denying certiorari - November 24 • Bush Reply Brief to U.S. Supreme Court in Siegel v. LePore - November 24 (FindLaw) • Bush Reply Brief to U.S. Supreme Court in Bush v. Palm Beach County Canv. Board - November 24 (FindLaw) • Gore response to Bush appeal, Bush v. Palm Beach County Canvassing Board and Siegel v. LePore - November 23 (FindLaw) • Bush petition for writ of certiorari to the U.S. Supreme Court, Siegel v. LePore - November 22 (FindLaw) • Bush petition for writ of certiorari to the U.S. Supreme Court, Bush v. Palm Beach County Canvassing Board - November 22 (FindLaw) Bush appeals to the Supreme Court in Law Library

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For more than a century, the court has been reluctant to take up election matters because the Constitution says elections are a state matter, said Neal Katyal, who teaches at the Georgetown University law school and who clerked for Supreme Court Justice Stephen Breyer.

Saying the court has never taken a case involving a presidential election, Katyal cautioned against reading too much into the court's acceptance of the case.

Katyal, a Gore supporter, said they could be curious about the merits of the case or they might have had some other reason, like wanting to issue an "authoritative decision to stop people from rioting in the streets."

Bruce Fein, a constitutional scholar and a former government lawyer, said the court probably took the case because of the stakes involved are high and rejecting the case would be a "denigration of the president."

Fein, a conservative scholar, said because the Bush camp did not ask the court to issue an order preventing Florida Secretary of State Katherine Harris from having to accept the manual recounts, she would still have to comply with the Florida court order and certify the vote.

However, if the court were to rule in Bush's favor, the justices could order her to re-certify the statewide total - deleting the numbers from the manual recount, both scholars said.

Focus on state electoral powers

The court set arguments in Bush v. Palm Beach County Canvassing Board for December 1, 11 days before the federally mandated deadline for states to choose electors and five days after the Florida Supreme Court has ordered Florida Secretary of State to accept manually recounted votes from counties submitting those votes.

The U.S. Supreme Court put the case on a fast track, giving attorneys for Texas Gov. George W. Bush and Vice President Al Gore until Tuesday to submit fresh legal briefs of no more than 50 pages each. Responses must not be more than 20 pages and are due by Thursday, according to the court's orders granting certiorari - or acceptance - of the Bush appeal.

In agreeing to hear the appeal, the Supreme Court asked lawyers for Al Gore and George Bush to focus on whether the Florida Supreme Court violated the Due Process Clause and Article II of the U.S. Constitution by ordering the Florida Secretary of State to include hand recounts in her final election tally and setting a new deadline for certification.

The justices also asked lawyers for both sides to address in their briefs what the consequences would be if the U.S. Supreme Court were to find that the decision of the Supreme Court of Florida does not comply with 3 U.S.C., Sec. 5, a section of federal law dealing with the selection of electors.

In a separate matter, the court rejected another appeal by Bush, Siegel v. LePore. In that matter, the Bush campaign wanted the U.S. Supreme Court to review a decision by the 11th U.S. Circuit Court of Appeals to deny an emergency injunction to halt manual recounts in South Florida counties.

In the Florida capital of Tallahassee, Tom Feeney, speaker of the GOP-majority Florida House of Representatives, said the legislature will formally join Bush's side in the Supreme Court case.

He pointed to Article II of the Constitution, which says that state legislatures have the job of choosing presidential electors. The Bush side has argued since Tuesday that the Florida Supreme Court assumed legislative responsibility by allowing manual recounts.

Arguments and counter-arguments on hand recounts issue

In petitions filed this week, Bush lawyers urged the U.S. Supreme Court to stop manual recounts in Florida as unconstitutional under Article II, the First and 14th Amendments.

The First Amendment preserves freedom of speech and assembly and the 14th provides ensures "due process" and "equal protection" under the law.

The Bush team alleged that the Florida court unconstitutionally usurped the power to choose electors reserved to state legislatures under Article II of the U.S. Constitution.

Democratic presidential hopeful Al Gore filed a response late on Thanksgiving Day urging the court to stay out of the controversial Florida election, arguing that Article II of the U.S. Constitution says that states, not federal, officials are responsible for choosing electors.

In a response to the petition for writ of certiorari filed late on Thanksgiving Day, attorneys for Al Gore raised the issue of federalism, saying elections are clearly matters regulated by state law and the federal system should stay out.

They dismissed the notion that the Florida Supreme Court took over the task of deciding the election as "intemperate and insupportable mischaracterizations."

"Only on the most compelling showing of a constitutional violation should a federal court interfere with this task, uniquely delegated by the Constitution to the state government," they wrote.

"Intervention by this court in this ongoing process would work a significant intrusion into a matter - the selection of electors - that is both fundamental to state sovereignty and constitutionally reserved to the states," they wrote.

But Bush lawyers disagreed, saying the matter did belong in federal courts.

"This is a unique case of undeniable, imperative public importance to the nation and the Constitution," Bush's lawyers wrote in papers filed Friday.

Reuters contributed to this report.

U.S. Constitution, Article II
14th Amendment to the U.S. Constitution
1st Amendment to the U.S. Constitution
United States Code, Title 3, Section 5

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