Dear ALSB list members -- here is some info about the upcoming Supreme
COurt argument.  Some of you probably have already seen this, but if you
don't know about the Supreme Court News service, you can subscribe --
for free.  Check it out.  Pat Cihon

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UNITED STATES SUPREME COURT NEWS 11/28/00
Willamette Law Online - Willamette University College of Law
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SPECIAL ELECTION EDITION
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On December 1, 2000, the United States Supreme Court
will hear the oral argument in the case summarized below.
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Message from the Editor:
We encourage you to forward this issue to others who may be
interested.  Subscription (FREE) may be accomplished by utilizing the
link
located at the bottom of the issue.  Thank you.
DHB, Editor SCN 2000-01
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For your convenience, full texts of the Florida opinion, briefs and
relevant federal statutes and constitutional provisions are provided:
(The "pdf" files require Adobe and take time to load)

(1)  Full text of the Florida
opinion:
http://a388.g.akamai.net/f/388/21/1d/www.cnn.com/ELECTION/2000/resources/fla.sc.opinion.pdf

(2)  Full text of Petitioner's
brief:
http://news.findlaw.com/cnn/docs/election2000/uscbushbrief1128.pdf

(3)  Full text of Respondent's
brief:
http://news.findlaw.com/cnn/docs/election2000/uscgorebrief1128.pdf

(4)  Full text of 3 U.S.C s5: (statute in
question)
http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=3&sec=5

(5)  Full text of Article II s1, clause 2: (constitutional provision in
question) http://caselaw.lp.findlaw.com/data/constitution/article02/
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SPECIAL ORAL ARGUMENT

************
Friday 12/01
************

George W. Bush v. Palm Beach County Canvassing Board
No. 00-836
Court below: Supreme Court of Florida (11/21/00)

ELECTIONS LAW (Courts Declaring the Process for Choosing Electors)

The issues in this elections case are (1) whether the Florida Supreme
Court violated 3 U.S.C. s5, which requires that a State resolve
controversies relating to the appointment of electors under "laws
enact[ed] prior to" election day, (2) whether the court's decision is
inconsistent with Art. II s1 of the Constitution, which provides that
electors shall be appointed by each state "in such manner as the
Legislature thereof may direct", and (3) what would be the consequences
of
"[t]his Court's" finding that the decision of the Florida Supreme Court
does not comply with 3 U.S.C. s5.

On November 7, 2000, Presidential elections were held in the United
States. After the original count in Florida, the vote was close enough
to
require an automatic machine recount. The Florida Democratic Executive
Committee requested a manual hand-count in four democratic counties.
After
the counts were started, Bush's campaign appealed, calling for a halt to
the manual counts. The Court Below concluded that Florida's Secretary of
State abused her discretion when she denied those counties the
opportunity
to include manually counted ballots in their certified counts.
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ISSUE (1): Whether the Florida Supreme Court violated 3 U.S.C. s5, which
requires that a State resolve controversies relating to the appointment
of
electors under "laws enact[ed] prior to" election day.

Gov. Bush (Petitioner) argues that the Florida Supreme Court's decision
announces a new framework and timetable for resolving controversies over
presidential election results in Florida, violating 3 U.S.C. s5.
Further,
Bush argues that s5 is designed to ensure that disputes relating to the
appointment of presidential electors will be decided under laws made
prior
to the exigency under which they arose.

Vice President Gore (Respondent) argues that the Florida court's
decision
did not violate 3 U.S.C. s5 for the simple reason that s5 does not
impose
any mandate on the States.  Gore also argues that s5 merely offers
States
a safe harbor with respect to a hypothetical controversy that has yet to
arise--namely a dispute over electors that might arise before Congress
when the electoral votes are counted.
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ISSUE (2): Whether the court's decision is inconsistent with Art. II s1
of
the Constitution, which provides that electors shall be appointed by
each
state "in such manner as the Legislature thereof may direct."

Bush argues that the Florida Supreme Court decision contradicts the
separation of powers between a state legislature and other branches of
state government in Article II of the Constitution.  Under Florida law,
the state legislature has granted only the executive branch limited
authority to exercise discretion and certify the results of
elections.  Bush argues that the Florida Supreme Court reached out and
prohibited the executive branch's officials from performing their
duties,
and announced new deadlines to supplant those enacted by the
legislature.

Gore argues that Art. II does not prohibit a state court from
undertaking
statutory interpretation pursuant to state law.  Further, that contrary
to
the Petitioner's argument due process is furthered by ensuring, as the
Florida Supreme Court has attempted to do, that as many votes as
possible
are fairly and accurately counted.
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ISSUE (3): What would be the consequences of "[t]his Court's" finding
that
the decision of the Florida Supreme Court does not comply with 3
U.S.C. s5.

Bush argues that the result of the Supreme Court holding that the
Florida
Supreme Court's failed to comply with 3 USC s5 would be two-fold: (1)
the
executive officials in Florida would be able to discharge all of their
duties, including their duties imposed by federal law, under rules in
place on election day, and (2) Congress would be able to give conclusive
effect to the official certification of the Florida Election Canvassing
Commission regarding the appointment of Florida's electors within the
rules in place prior to the election.

Gore argues that the dispute over the Florida Supreme Court's
interpretation of the Florida Election Code is a state-law case that,
despite its importance, does not belong in the federal court.  Further,
Gore argues that the Florida court played the familiar judicial role of
interpreting Florida law.

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UNITED STATES SUPREME COURT NEWS 2000-2001
Willamette Law Online - Willamette University College of Law
WLO Editor and Chief: Crystal Miller-O'Brien
SCN Editors:  David Bowser: mailto: [log in to unmask]
                        Paul Williams: mailto: [log in to unmask]
Student Editorial Board: Daniel Deering, Stephanie Hendricks,
                                        Grant Stockton, Peter Dassow,
                                        Tisa Escobar and Jason
Montgomery
Web site: http://www.willamette.edu/wucl/wlo
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