December 11, 2000|By THE SUN WASHINGTON BUREAU
In dueling 50-page legal briefs, the Bush and Gore campaigns made their final written pleas yesterday, seeking to shape a final U.S. Supreme Court decision. The Bush team's goal was to persuade the justices to cast aside a Florida Supreme Court decision requiring new vote-counting. Doing so would restore his certified victory. The Gore side's goal was to persuade the justices to leave the state court decision intact, letting the recounts by hand go on in hopes of helping him overtake Bush.
Excerpts from the Al Gore brief
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 U.S., and thus the president of the U.S. himself, will be chosen by ascertaining the actual outcome of the popular vote in Florida ... 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 election. ...
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. ...
There can be no 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 the federal law, the U.S. Constitution, or the opinions of this court compel it to choose the second course over the first. ...
The Florida Supreme Court's decision is fully consistent with Article II [of the U.S. Constitution]. ... Article II presupposes the existence of authority in each state to structure the internal processes and organization of each of its governmental branches; judicial review and interpretation of Florida's election statutes is a necessary legislative assumption.
In any event, the Florida legislature itself drafted, proposed, and approved through bicameral passage the very provisions of its constitution that provide for appellate jurisdiction. ...
Petitioners' pejorative characterizations of the Florida Supreme Court's decision are unfounded and highly irregular. In its ruling, the Florida court did not "make law" or establish any new legal standards that conflict with legislative enactments.
Rather, the court engaged in a routine exercise of statutory interpretation that construed the Florida Election Code according to the legislature's designated manner for choosing electors in a statewide election. ... It surely cannot be the case that the law "changes" when a jurisdiction's highest court settles the meaning of state law. ...
The stay granted by this court should be immediately dissolved, and the judgment of the Florida Supreme Court should be affirmed.
Excerpts from the George W. Bush brief
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 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 33 days since the election have been characterized by widespread turmoil resulting from selective, arbitrary, changing, and standardless manual recounts of ballots in four Florida counties pursuant to requests made on behalf of Democratic presidential candidate Vice President Gore.
