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Bush, Gore wrangle in U.S. Supreme Court over manual recounts

By Raju Chebium
CNN.com Correspondent

COURT DOCUMENTS Key election-related petitions and briefs filed with the U.S. Supreme Court. (These require Adobe® Acrobat® Reader™) • 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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WASHINGTON (CNN) – Lawyers for Republican presidential hopeful George W. Bush on Friday reiterated their pleas for the U.S. Supreme Court to stop manual vote recounts in Florida as unconstitutional.

“This is a unique case of undeniable, imperative public importance to the nation and the Constitution,” Bush's lawyers said in written arguments filed Friday with the nation’s highest court in response to counter-arguments filed by Democrat Al Gore’s lawyers late on Thanksgiving Day.

Bush lawyers filed papers with the Supreme Court late Wednesday to stop manual recounts in Florida, saying the recounts violate the U.S. Constitution and federal laws governing the selection of electors.

They asked the nine justices to overrule the Florida Supreme Court, which on Tuesday allowed manual recounts to continue, arguing that the Florida court usurped legislative authority in violation of constitutional principles.

Pursuing the recount issue on a separate legal track, Bush lawyers are asking the U.S. Supreme Court to review a decision by the 11th U.S. Circuit Court of appeals denying an injunction to halt the recount on constitutional grounds. Specifically, the Texas governor’s legal team says the manual recounts of ballots in South Florida, violate Article II, the 14th and First Amendments of the U.S. Constitution and federal law by allowing “arbitrary, standardless and selective recounts.”

Article II says states are responsible for choosing electors. The 14th Amendment gives people the right to “equal protection” and the First Amendment protects freedom of speech and assembly.

The Gore response

Democrat Al Gore filed a response late on Thanksgiving Day urging the court to stay out of the controversial Florida election, saying the Constitution is on their side. For instance, the vice president’s lawyers argued in written arguments, Article II specifically says that states are responsible for choosing electors.

They also rejected the Bush team’s argument that the Florida Supreme Court engaged in judicial activism. Saying the Florida justices correctly interpreted federal and state constitutions and elections laws, Gore’s lawyers argued that Bush’s assertions rest on “intemperate and insupportable mischaracterizations.”

“In fact, the Florida Supreme Court played a familiar and quintessentially judicial role,” Gore’s lawyers said.

Pursuing parallel appeals

In Bush v. Palm Beach County Canvassing Board , Bush is appealing the Florida court’s decision allowing manual recounts to continue in South Florida and ordering Florida Secretary of State Katherine Harris to include those totals in the final, statewide tally. The seven justices, ruling unanimously, imposed a 5 p.m. Sunday deadline for the hand recounts to be completed and sent to Harris.

In Siegel v. LePore , the Bush team is appealing decisions by the U.S. District Court for the Southern District of Florida and the 11th U.S. Circuit Court of Appeals denying a request for an emergency injunction to halt the recounts. Both courts said the matter of recounts should be resolved through the Florida state courts.

In their petition for writ of certiorari filed with the U.S. Supreme Court in the matter of Bush v. Palm Beach County Canvassing Board, Bush’s lawyers wrote, “This petition seeks to remedy Florida’s widespread and systematic infringement upon … the right to vote in the November 7 presidential election in that state… Few issues could be more important than those presented in this case. At stake is a lawful resolution of a national election for the office of the President.”

Bush’s lawyers accused the Florida Supreme Court of engaging in a “lawless exercise of judicial power” that threatened to “thwart the will of the electorate as well as the considered judgments of Florida’s executive and legislative branches.”

They reiterated earlier arguments that hand recounts are unnecessary because Bush beat Gore on November 7 and in a machine recount of the 6 millions ballots cast in Florida.

Since different counties have different standards for doing recounts – some counts “dimpled chads," some don’t, instance - including those results “will not yield a more accurate tabulation … it will simply undermine the credibility and integrity of any final result,” Bush’s lawyers wrote.

Gore responds

Election-law and Constitution specialists have said that courts will normally intervene only if the Constitution or federal laws have been violated. For instance, if people were denied the chance to vote because of their race, then the federal courts will likely enter the fray because that would be a violation of the Voting Rights Act, they said.

Gore’s lawyers raised the issue of “federalism” in their filings Thursday, saying elections are clearly matters regulated by state law and the federal system should stay out.

“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.

Bush’s claims, they argued, “are insubstantial and do not come close to meeting the high threshold that would require this court to interfere.” Bush’s filings represent a “bald attempt to federalize a state law dispute,” Gore’s lawyers wrote, noting that Florida courts are still involved in resolving the election controversy.

“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.

The Miami-Dade recount

Miami-Dade, Palm Beach and Broward counties were doing or considering recounts when the Florida Supreme Court ruled late Tuesday.

Miami-Dade County election officials decided Wednesday to abandon the effort, saying they could not complete it by the court-mandated deadline of Sunday evening, a blow to the Gore camp.

Gore’s attorneys lost their bid Thursday to get the Florida Supreme Court to order the Miami-Dade recounts to proceed. Then, Gore’s lawyers said they would contest the vote tally in that county under state law.

Reuters contributed to this report.

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