The following are excerpts from the Bush and Gore campaigns' filings to the US Supreme Court yesterday, regarding Bush's appeal of the Florida Supreme Court decision that allowed the manual recounting of votes in three counties:
BUSH:
On November 21, 2000, the Supreme Court of Florida issued an equitable decree altering Florida's methods and timetables for the determination of controversies regarding the appointment of presidential electors. That decree has interjected unwarranted but serious questions concerning the selection of Florida's presidential electors that threaten to undermine and cloud the outcome of the election in that State. Because that equitable decree is inconsistent with federal law and the Constitution of the United States, petitioner respectfully prays that this Court vacate the judgment below....
The (Florida Supreme Court) rejected Florida statutes and deadlines for the appointment of electors and the resolution of presidential election disputes as ''hyper-technical.'' Instead, it resorted to its ''equitable powers'' to prescribe new standards and deadlines, suspend mandatory enforcement mechanisms, and curtail the discretion conferred on the state executive by the legislature. The decision below constitutes a clear departure from the legal requirements established before election day, and announces new rules governing the resolution of election disputes....
The federal rule enunciated by Congress in 3 U.S.C. 5 serves obvious and important public policy interests by discouraging precisely what is happening in Florida today, where the candidate who did not receive the most votes and his subordinates seek to overturn the results of the presidential election by appealing for the enactment of new rules after the election has been held. That was done repeatedly during the recounts, ending with the effort to force adoption of the ''dimpled'' ballot concept, and it was done when the time limit for conducting manual recounts was changed from seven to nineteen days.
GORE:
The Florida court applied garden variety principles of statutory interpretation to resolve ambiguities and reconcile conflicting provisions within the Florida Election Code. Even if federal law had something to say about the scope of state judicial authority to construe state legislation, which it does not, the decision below effected no ''change'' in Florida law ''which cannot be reconciled with state statutes enacted before the election''...
Nothing in the Constitution's several delegations of power to the ''legislatures'' of the States has ever been held to limit the role of the other branches of state government in the lawmaking process, including the authority of the state courts to act as final expositors of the meaning of the statutes enacted pursuant to those delegated powers. Nor would the decision below rise to the level of a due process violation, even if its construction of Florida law were wrong. Consequently, the judgment below should be affirmed....
The rule set out in Smiley, Growe, and the other cases described above, resonates with the fundamental principle that the federal Constitution takes the arrangement of state governmental branches as it finds them. ''(T)he concept of the separation of powers embodied in the United States Constitution is not mandatory in state governments.'' Indeed, ''(i)t would make the deepest inroads upon our federal system for this Court now to hold that it can determine the appropriate distribution of powers and their delegation within the forty-eight states ..t. (T)he Florida Supreme Court's decision did not constitute a retroactive change in Florida law at all. ... (T)he Court's decision was an unremarkable construction of state statutes and state constitutional provisions. Even if that were not the case, it would take an exceptional showing of unfair retroactive effect to hold a court decision violative of due process.
