- The Washington Times - Friday, November 24, 2000

Vice President Al Gore last night challenged Texas Gov. George W. Bush's extraordinary plea that the U.S. Supreme Court step into Florida's chaotic vote count and assure that the legitimate winner becomes president of the United States.
In briefs last night before the U.S. Supreme Court, Mr. Gore's legal team called Mr. Bush's request a "bald attempt to federalize a state court dispute" and echoed the Texas governor's contention that partisans used their official powers to foil the will of Florida's voters.
"This court's interference with the normal processes by which questions of state law are resolved, and … the president and vice president of the United States are chosen, would only diminish the legitimacy of the outcome of the election," said the brief that Mr. Gore's attorneys filed in response to the Texas governor's request Wednesday that the justices step into the fray.
The Gore team said questions of when to certify an election or to allow recounts were for the state alone to decide.
Mr. Gore is struggling to overcome a Bush lead of 930 votes even as Mr. Bush filed a state lawsuit to restore discarded military overseas ballots to his column.
Mr. Bush now will file a reply, perhaps today, to support his request that the court intervene.
"Governor George W. Bush and Dick Cheney received the most votes cast in Florida, as initially counted, as recounted, and as retabulated again after receipt of overseas ballots," said Mr. Bush's 24-page petition, which asked for speedy action so Florida's 25 electoral votes will ensure his victory.
Attorneys for the Texas governor invoked the high court's rarely applied Rule 11, governing cases "of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this court."
They asked the Supreme Court to grant "certiorari before judgment" without waiting for a Nov. 29 federal appeals court hearing in Atlanta to end what they called a "circus."
Unusually vivid language attacked Tuesday's Florida Supreme Court ruling as a "lawless exercise of judicial power" and unconstitutional action "which appears designed to thwart the will of the electorate."
Bush attorneys seized on the Florida court's decision that the sanctity of an individual vote, whether improperly expressed or misplaced in confusion, trumps technical processes dictated by law.
"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live… . The Florida Supreme Court's decision poses a clear and present danger to that right, and should be corrected forthwith to ensure that our nation continues to be governed by the rule of law," said the Bush petition.
It flatly contradicted the state justices' explicit footnote saying no federal constitutional issues were involved in that case, which, if true, would bar U.S. Supreme Court review of that ruling.
"A state court cannot evade this court's review by failing to discuss federal questions in its opinion," and it is up to the U.S. Supreme Court to decide if the U.S. Constitution was violated, the petition said.
In asking the U.S. Supreme Court for speedy action on the double-barreled appeal, lead attorney Theodore B. Olson of Gibson, Dunn & Crutcher, proposed a full hearing with oral arguments on Tuesday afternoon, Dec. 5.
Such a schedule would compress into 13 days a series of legal processes that normally last six to eight months, thus producing a decision before the Dec. 12 federal deadline for ending challenges to Florida's electors.
A decision to take the case could come as early as Monday or Tuesday, when the court recess ends.
Previous cases involving "certiorari before judgment" include the 1952 Youngstown Sheet & Tube Co. vs. Snyder, which barred President Truman from taking over steel mills on strike to keep materiel flowing to troops in Korea and the 1974 U.S. vs. Richard Nixon ruling, which resulted in surrender of incriminating tape recordings and led to the president's resignation.
Efforts by independent counsel Kenneth W. Starr to apply the procedure during his Monica Lewinsky investigation were rejected.
Fast or slow, there was no assurance the necessary four justices would be persuaded to vote to hear the case, however, to say nothing of the five votes needed to win.
To overcome that hurdle, Mr. Olson a veteran Supreme Court litigator and former assistant U.S. attorney general explained at great length in both of his petitions why the Florida ruling and the unfinished federal court claim of constitutional violations are within U.S. Supreme Court jurisdiction.
Federal courts may not review state court interpretation of state law, but Mr. Olson said the state decision itself violated a federal law requiring that any state laws governing appointment of presidential electors be on the books before Election Day.
Setting aside Florida Secretary of State Katherine Harris' decision to certify only votes received by 5 p.m. Nov. 14, as directed by state law, violated Title 3, Section 5 of federal law establishing Electoral College procedure, he said.
"[That section] requires that a state resolve controversies relating to the appointment of electors under 'laws enacted prior to' Election Day," said the petition aimed at overturning the state Supreme Court's order that Mrs. Harris include any late manual recounts submitted from Palm Beach, Broward or Miami-Dade counties by 5 p.m. Sunday.
The appeal from the state high court ruling also asked the justices to decide whether appointing electors under such procedures is consistent with the Constitution's language giving each state's legislature, not its courts, the power to prescribe how electors are appointed.
Its third provision attacked the "arbitrary, standardless, and selective manual recounts," which vary from county to county, saying they violate the First Amendment and 14th Amendment's "equal protection or due process clauses."
The lawyers linked the two appeals by explaining how the federal case arose as a way of stopping selective recounts in three overwhelmingly Democratic counties, with rules for which ballots would be tallied changing from hour to hour.
"When it became apparent that some Florida officials were bent on paving the road to chaos that the state Supreme Court has now endorsed, Governor Bush and Secretary Cheney, and various Florida voters, sought an injunction in federal court," the Bush attorneys said.
Mr. Gore's attorneys strongly criticized the Bush camp's position.
"These petitions represent a bald attempt to federalize a state law dispute over whether a manual recount is authorized and appropriate," their 29-page filing said.
"Intervention by this court in this ongoing process would work a significant intrusion into a matter this selection of electors that is both fundamental to state sovereignty and constitutionally reserved to the states," it added.

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