WASHINGTON -- The Supreme Court's decision to intervene in the Florida presidential recount controversy was a surprise to many who have watched the court's recent campaign to tip the federal-state balance of power toward the states.
The decision to hear George W. Bush's appeal "is to open a door to Supreme Court review of state election procedures generally," University of Virginia law professor A.E. Dick Howard said Friday.
"The court now holds in its hands the power to decide this election," Howard said, adding that Al Gore's lawyers "had better throw everything they have into this one."
"The odds of prevailing, in terms of both the constitutional text and statutory text, are with Gov. Bush," added Pepperdine University law professor Douglas Kmiec.
Numerous legal experts had expected the high court to deny review. But the justices said Friday they will hear arguments Dec. 1 on whether the Florida Supreme Court violated the federal Constitution and federal law when it allowed hand-counted ballots to be included in the state's vote totals after a deadline set by state law.
"They will definitively resolve the permissibility of including the hand-counted ballots," said Erwin Chemerinsky, a University of Southern California law professor.
In recent years, the justices have issued a series of 5-4 decisions that have boosted states' power versus that of the federal government.
In one of those cases last year, the court said, "When the federal government asserts authority over a state's most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government."
Harvard law professor Laurence Tribe, who is expected to argue for the Gore campaign, noted that in asking the court to turn down Bush's appeal, Gore's lawyers argued that "an appropriate view of (the federal-state balance of power) should make it reluctant to intervene."
"Clearly, it overcame that reluctance," Tribe said.
The justices said they would consider whether the Florida high court's decision to set a Sunday deadline for including the hand-counted votes violates the federal Constitution's due-process guarantee and its decree that each state's presidential electors will be chosen "in such manner as the legislature thereof may direct."
Also, the justices will decide whether the state court ruling violated a federal law that requires election disputes to be resolved under laws enacted before Election Day.
They declined to hear Bush's argument that the manual recount is being conducted in an arbitrary and selective manner.
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