A. The legality of the Florida Supreme Court's decision that manual recounts in three Florida counties could continue beyond 5:00 p.m. on the seventh day after the election, i.e., Tuesday, November 14.
1. Whether post-election judicial limitations on the discretion granted by the legislature to state executive officials to certify election results, and/or post-election judicially created standards for the determination of controversies concerning the appointment of presidential electors, violate the Due Process Clause or 3 U.S.C. § 5, which requires that a State resolve controversies relating to the appointment of electors under “laws enacted prior to” election day.
2. Whether the state court’s decision, which cannot be reconciled with state statutes enacted before the election was held, is inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State “in such Manner as the Legislature thereof may direct.”
3. What would be the consequences of the U.S. Supreme Court’s finding that the decision of the Supreme Court of Florida does not comply with 3 U.S.C. Sec. 5?
Note: Questions 1 and 2 were taken directly from the petition for a writ of certiorari; the wording for No. 3 was taken directly from the Court's order granting certiorari.
Legal Question 1
Petitioner: The Florida Supreme Court's ruling violates 3 U.S.C. § 5, an 1887 law that requires states to apply state laws that were enacted "prior to" election day when resolving controversies relating to the appointment of electors. In giving local election boards until Sunday, November 26, to submit the results of their hand recounts, the Florida Supreme Court wrongfully created and applied new law under the guise of interpreting pre-existing law. State law prior to the Florida court's decision set a firm deadline for certifying election results -- 5:00 p.m. on the seventh day after the election, i.e., Tuesday, November 14.
Respondent: The federal law cited by Petitioner also permits "judicial or other methods or procedures" for resolving election controversies. In this case, the Florida Supreme Court has simply reconciled conflicting state laws: One section of the Florida law provides that returns filed after seven days “shall” be ignored; but another, more recent provision states that they “may” be ignored. Under constitutional principles protecting federalism, the task of interpreting and reconciling such state laws is the responsibility of state -- and not federal -- courts.
Legal Question 2
Petitioner: The Florida court's decision not only conflicts with the 1887 federal statute, but it is also unconstitutional under Article II, Section 1, clause 2 of the Constitution. This clause in Article II provides that electors shall be appointed by each state in such manner "as the Legislature thereof" may direct. Thus the Constitution does not permit either the judicial or executive branches to establish deadlines for certifying election results-- that power rests solely with state legislatures.
Respondent: This constitutional delegation of authority to state legislatures was never meant to eliminate a state court's power to interpret the legislature's statutory language -- which is all the Florida Supreme Court did in this case. Rather, all that Article II was meant to do was to ensure that the procedure for appointing electors would be a matter of state, not federal, law -- "the ultimate meaning of which must be determined by state, not federal, courts."
Legal Question 3
The Court directed the parties to address the consequences of a U.S. Supreme Court decision to reverse the Florida Supreme Court in their merit briefs, which will be filed by 4 p.m. Tuesday, November 28.
A. These are the so-called "merit briefs." In these briefs, the parties developed their arguments regarding how the Court should answer the legal questions it has agreed to consider.
A. At least four justices must approve the Court's decision to grant certiorari in any case. However, unless one or more of the justices file a written dissent to that decision, it is unlikely that we will ever know which justices vote to accept a case or why. No dissents were filed in this case.
A. No. The Court has never televised any of its oral arguments, and on November 27 it voted to deny C-SPAN's request to televise the arguments in this case as well.
A. Audiotapes of the arguments can be heard at most major news sites, including ABC, C-SPAN, and MSNBC.
Transcripts of the arguments are also being made available December 1 on the Supreme Court's new web site at www.supremecourtus.gov. ( Direct link)
A. Yes, the Petitioner could ask the Court to dismiss his appeal at any time.
A. No. The Court only decides actual cases and controversies -- it would dismiss a case rather than issue an "advisory opinion" that would lack legal effect.
A. The Court can decide this case at any time, but it's reasonable to believe it will move quickly.
A. An amicus brief is a brief filed by an amicus curiae ("friend of the Court") -- a person or organization who is not a party to the case being argued, but who believes it has an important perspective or insight that should be brought to the Justices' attention. Rule 37 of the Rules of the Supreme Court of the United States notes that "An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored."
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