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Introduction to the Gore Brief to the United States Supreme Court
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 United States, and thus the President of the United States himself, will be chosen by ascertaining the actual outcome of the popular vote in Florida in the election of November 7, 2000, 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 such election. See Fla. Stat. section 102.168; see also Florida Election Code, Fla. Stat. sections 97.011-106.37. This process--which operates by popular vote and employs administrative and judicial processes when needed to ascertain which candidate has prevailed--is the only provision by which the Florida Legislature has established the manner of appointing Florida's Presidential electors in the 2000 general election. They are common provisions that have been adopted and utilized for decades in the vast majority of the States. See infra. These statutes expressly provide for "judicial determination" of any contest to determine the rightful winner of an election, as called for by 3 U.S.C. section 5. 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. For this Court has long championed the fundamental right of all who are qualified to cast their votes "and to have their votes counted." Reynolds v. Sims, 377 U.S. 533, 554 (1964). Petitioners' request that this Court intervene in a state electoral process to ensure that votes are not counted turns Sims on its head. In the end, notwithstanding fears as to how "counting of [the] votes" may "cast a cloud upon what [Governor Bush] claims to be the legitimacy of his election," Bush v. Gore, No. 00-949 (A-504), Slip op. at 2 (Dec. 9, 2000) (Scalia, J., concurring), there can be little doubt that a count of the still uncounted votes, as the Florida Supreme Court ordered in this case, eventually will 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 instead will relegate them to be counted only by scholars and researchers under Florida's sunshine laws, after the next President is elected. Nothing in federal law, the United States Constitution, or the opinions of this Court compel it to choose the second course over the first.
Opinion of the Majority of the Supreme Court,
Planned Parenthood v. Casey, 1992
The [Supreme] Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means, and to declare what it demands… But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle… the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation… There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade. AND SO IT HAS… Scalia Hates Gore. He said so.
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