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U.S. Supreme Court to weigh separation of powers in Florida election appeal

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- The U.S. Supreme Court on Friday agreed to hear Republican George W. Bush's challenge to manual recounts in Florida on constitutional grounds.

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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The court set arguments in Bush v. Palm Beach County Canvassing Board for December 1, only 11 days before the December 12 deadline for states to choose electors.

The nation's highest court declined to hear another legal challenge filed the Bush campaign over the elections controversy, 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.

Arguments and counter-arguments on hand recounts issue

In a petitions filed this week, Bush urged the nine justices to stop manual recounts in Florida as unconstitutional under Article II, the First and 14th Amendments. Article II concerns the separation-of-powers principle and defines the selection of U.S. presidents by state-appointed electors. 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 is appealing the Florida Supreme Court ruling mandating the inclusion of hand ballot recounts in the final Florida election tally.

They argue 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 and 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.

"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," according to the Wednesday filings in which Bush urged the court to accept the case.

"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," according to the Bush side.

Bush's appeals came after the Florida Supreme Court on Tuesday allowed manual recounts to continue in South Florida and ordered 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.

The federal appeal

The Bush team is also appealing decisions by a federal district judge and an appeals court to stay out of the Florida elections controversy.

Earlier this month, a U.S. District judge in Miami and the 11th U.S. Circuit Court of Appeals in Atlanta rejected Bush's arguments that the recounts violated the U.S. Constitution.

Republicans have said hand recounts are unnecessary because Bush beat Gore on November 7 and in a machine recount of the 6 million 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.

CNN's Bob Franken and Reuters contributed to this report

U.S. Constitution, Article II
14th Amendment to the U.S. Constitution
1st Amendment to the U.S. Constitution

Bush, Harris urge end to Florida recount; Gore seeks uniform standard
November 19, 2000
Gore asks Florida high court to set standards for recount
November 19, 2000
Presidential vote recounts yield few changes so far, officials say
November 19, 2000
Democrats protest exclusion of ballots in Palm Beach County
November 19, 2000
Lieberman says Dems not trying to block absentee ballots
November 19, 2000
Congress studying electoral college scenarios
November 19, 2000
Bush camp blasts 'flawed' count
November 18, 2000
Candidates' lawyers head for court showdown in Florida
November 18, 2000
Manual recounts continue as court refuses Republican request for a halt
November 18, 2000

Florida State Courts
Florida Southern District Court
Electoral College
Volusia County government
Palm Beach County government

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