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Politics : PRESIDENT GEORGE W. BUSH -- Ignore unavailable to you. Want to Upgrade?

To: calgal who wrote (110500)	12/11/2000 12:25:06 PM
From: Neocon	Respond to of 769670

Let us take these in order. First, the issues raised in presenting the matter to the SCOTUS: QUESTIONS PRESENTED 1. Whether the Florida Supreme Court erred in establishing new standards for resolving presidential election contests that conflict with legislative enactments and thereby violate Article II, Section 1, Clause 2 of the United States Constitution, which provides that electors shall be appointed by each State "in such Manner as the Legislature thereof may direct." 2. Whether the Florida Supreme Court erred in establishing postelection, judicially created standards that threaten to overturn the certified results of the election for President in the State of Florida and that fail to comply with the requirements of 3 U.S.C. Section 5, which gives conclusive effect to state court determinations only if those determinations are made "pursuant to" "laws enacted prior to" election day. 3. Whether the use of arbitrary, standardless and selective manual recounts to determine the results of a presidential election, including postelection, judicially created selective and capricious recount procedures that vary both across counties and within counties in the State of Florida, violates the Equal Protection or Due Process Clauses of the Fourteenth Amendment. Clearly, these are federal questions.

To: calgal who wrote (110500)	12/11/2000 12:31:23 PM
From: Neocon	Read Replies (2) \| Respond to of 769670

BRIEF FOR PETITIONERS (Bush) On December 4, 2000, this Court unanimously vacated the Florida Supreme Court's November 21 judicial revision of Florida's election laws. Bush v. Palm Beach County Canvassing Board, No. 00-836 (U.S. Dec. 4, 2000). The Court remanded for further proceedings not inconsistent with its concerns regarding the Florida court's awareness of and compliance with federal constitutional and statutory constraints on the authority of the Florida judiciary to revise the Florida Legislature's method for appointing presidential electors. Id. Just four days later, without a single reference to this Court's December 4 decision, the majority of the Florida Supreme Court announced sweeping and novel procedures for recounting selected Florida ballots to determine anew the winner of the November 7 presidential election in Florida. This latest manual recount regime would be conducted according to varying — and unspecified — standards, by officials unspecified in Florida's election law, and according to an ambiguous and apparently unknowable timetable. The Florida court's wholesale revision of Florida statutory law, adopted in part to address the problems flowing from its earlier abandonment of the system crafted by the Florida Legislature, ignores the obviously intertwined nature of the protest and contest provisions and overrides numerous legislative choices embodied in the Florida Election Code. The decision below acknowledges, but fails to adhere to, Article II, Section 1, cl. 2 of the federal Constitution, which vests plenary and exclusive authority in the Florida Legislature to determine the manner of selecting Florida's electors. And, while the Florida court stated that it was "cognizant" of 3 U.S.C. Section 5, which creates a "safe harbor" allowing a State to afford conclusive effect to its choice of presidential electors, it completely rewrote the Florida Legislature's pre-election laws designed to take advantage of that provision. The court's newly devised scheme for re-tabulating votes is plainly arbitrary, capricious, unequal, and standardless. The court below not only failed to acknowledge that its earlier decision had been vacated, it openly relied on manual recounts that had occurred only because of that opinion as a predicate for changing the Secretary of State's certification of the election and as the foundation for its statewide recount plan. It compounded that manifest overreaching by overriding its own "equitable" deadlines, created two weeks ago, as well as the legislature's carefully wrought timetable. The Florida court's decision imposes its decree on counties that were never part of the proceedings below, overrides statutory authority explicitly vested in the state's chief election officer and local canvassing boards, designates new officials to supervise in place of the officials specified in Florida's election code to discharge that function, establishes a standard for the instigation of recounts not recognizable under Florida law, requires manual recounts of "under-voted" but not "over-voted" ballots, and mandates inconsistent recounts within certain counties, in violation of fundamental principles of equal protection and due process. The unconstitutional flaws in the Florida Supreme Court's judgment immediately bore further unconstitutional fruit when the trial court attempted to implement the supreme court's decision, which effectively mandated the creation of an entirely new set of arbitrary and unreviewable ad hoc procedures that are flatly incompatible with the legislature's judgments regarding the conduct and timing of manual recounts and its delegation of authority to the Secretary of State to ensure uniformity in election procedures. See Petitioners Supplemental Mem. In Support Of Emergency Application, No. 00A-504 (filed Dec. 9, 2000). The trial court explicitly acknowledged it was creating a two-tier system, one for Dade County and one for "the rest of the counties in the state." Hearing Tr. at 5 (attached to Petitioners Supplemental Mem.). In the interest of making the recounts "go as smoothly as possible," the trial court precluded parties from objecting to the interpretation or allocation of individual ballots in the course of the re-counts. Id. at 8. The trial court called for county canvassing boards throughout the state to create new "protocols" for the recounts. Id. And the trial court explicitly acknowledged that there were to be no specific, uniform standards to guide the recounts. Id. at 10. This case is the quintessential illustration of what will inevitably occur in a close election where the rules for tabulating ballots and resolving controversies are thrown aside after the election and replaced with judicially created ad hoc and post hoc remedies without regard for uniformity, objectivity, or finality. The Florida Supreme Court has not only violated the Constitution and federal law, it has created a regime virtually guaranteed to incite controversy, suspicion, and lack of confidence not only in the process but in the result that such a process would produce. The meat of the brief is emboldened. It is clearly true that the Legislature's rules have been overridden, and that the authorization to recount is arbitrary and standardless.

To: calgal who wrote (110500)	12/11/2000 12:37:36 PM
From: Neocon	Respond to of 769670

INTRODUCTION (Summary of Gore's position) This case raises the most fundamental questions about the legitimacy of political power in our democracy. In this case, the Court will decide whether the Electors for President of the United States, and thus the President of the United States himself, will be chosen by ascertaining the actual outcome of the popular vote in Florida in the election of November 7, 2000, or whether the President will instead be chosen without counting all the ballots lawfully cast in that state. The Florida Supreme Court has determined, in a way that would be unremarkable but for the stakes in this election, that in order to determine whether lawfully cast ballots have been wrongfully excluded from the certified vote tally in this election, they must be examined. This is basic, essential, to our democracy, and to all that gives it legitimacy. The central question posed by this case is whether any provision of federal law legitimately forecloses the Florida Supreme Court from interpreting, applying, and enforcing the statutes enacted by the Florida Legislature to determine all election contests and ascertain the actual outcome of the popular vote in any such election. See Fla. Stat. Section 102.168; see also Florida Election Code, Fla. Stat. Sections 97.011-106.37. This process — which operates by popular vote and employs administrative and judicial processes when needed to ascertain which candidate has prevailed — is the only provision by which the Florida Legislature has established the manner of appointing Florida's Presidential electors in the 2000 general election. They are common provisions that have been adopted and utilized for decades in the vast majority of the States. See infra. These statutes expressly provide for "judicial determination" of any contest to determine the rightful winner of an election, as called for by 3 U.S.C. Section 5. Those statutes having been faithfully applied by the Florida Supreme Court in this case, the question is whether this Court may properly override Florida's own state-law process for determining the rightful winner of its electoral votes in this Presidential election. Such intervention would run an impermissible risk of tainting the result of the election in Florida — and thereby the nation. For this Court has long championed the fundamental right of all who are qualified to cast their votes "and to have their votes counted." Reynolds v. Sims, 377 U.S. 533, 554 (1964). Petitioners request that this Court intervene in a state electoral process to ensure that votes are not counted turns Sims on its head. In the end, notwithstanding fears as to how "counting of the votes" may "cast a cloud upon what (Governor Bush) claims to be the legitimacy of his election," Bush v. Gore, No. 00-949 (A-504), Slip op. at 2 (Dec. 9, 2000) (Scalia, J., concurring), there can be little doubt that a count of the still uncounted votes, as the Florida Supreme Court ordered in this case, will eventually occur. The only question is whether these votes will be counted before the Electoral College meets to select the next President, or whether this Court will instead relegate them to be counted only by scholars and researchers under Florida's sunshine laws, after the next President is elected. Nothing in federal law, the United States Constitution, or the opinions of this Court compel it to choose the second course over the first. I have emboldened what the case will turn on: whether the Florida Supreme Court merely interpreted, applied, and enforced statutory law in Florida, or whether it impermissibly ignored the law......