Gore's fight faces final days

"I don't feel anything other than optimistic,'' says Al Gore of his appeal in Florida.

By TIM NICKENS and THOMAS C. TOBIN

© St. Petersburg Times, published December 6, 2000

TALLAHASSEE -- All the Florida Supreme Court's dome needs now is a red bull's-eye.

On Thursday morning the court will hear Al Gore's appeal to overturn Florida's presidential results, just three days after a trial judge soundly rejected his plea to recount thousands of votes. It likely will be the last stop for the vice president in his flickering effort to prevent George W. Bush from winning Florida and the presidency.

"I don't feel anything other than optimistic," Gore said Tuesday outside the White House.

The seven state justices also received legal briefs Tuesday on how to react to the U.S. Supreme Court. The nation's highest court on Monday set aside the state court's ruling that had extended deadlines and allowed some hand recounts.

Also probably headed the Florida Supreme Court's way: separate cases from Martin and Seminole counties that go to trial today in Leon Circuit Court. Democrats allege that thousands of absentee votes should be thrown out in both counties because Republicans were allowed to fix errors on requests for the ballots.

"That doesn't seem fair to me," Gore said, hinting for the first time that he might also wait for those lawsuits to be resolved before deciding whether to concede.

Even as the state Supreme Court sits at the center of the still-unresolved presidential election, it remains in the cross-hairs of the Republican-controlled Florida Legislature.

GOP leaders, already upset with the court over its rejection of their efforts to streamline death penalty cases, are still angry over the court's unanimous opinion Nov. 21 that enabled the recounts to go forward. All seven justices were appointed by Democratic governors.

"They are engaged in legislating," said House Appropriations Chairman Carlos Lacasa, R-Miami.

Democrats said the state Supreme Court has demonstrated it won't wilt under pressure and can deliver bold opinions.

The justices, U.S. Rep. Alcee Hastings of Fort Lauderdale said, "are not potted plants or shrinking flowers."

But they don't have much time.

Federal law requires states to resolve election disputes and appoint their electors by Tuesday. Six days later, the Electoral College will meet to select the next president. And what the court decides is expected to determine whether Bush or Gore wins Florida's 25 electoral votes and the White House.

As the clock ticks, the court is faced with two immediate tasks: responding to the U.S. Supreme Court's request for clarity and deciding Gore's appeal of a ruling by Leon Circuit Judge N. Sanders Sauls that no recounts should be done.

Several law professors said Tuesday that they believe the two issues are separate. Of the two, the U.S. Supreme Court's request for more information is the easiest for the court to resolve.

"Ultimately, the U.S. Supreme Court case is going to be reduced to a sideshow," said Florida State University law professor Nat Stern.

The nation's highest court wants to know whether the state Supreme Court was interpreting conflicting state laws or relying on the Florida Constitution when it allowed the hand recounts to continue. The unanimous opinion indicated that the court could live with an interpretation of state laws. But the justices appeared concerned that if the state court relied on the Florida Constitution, they were taking away the authority of the Legislature to appoint electors that is provided by the U.S. Constitution.

In effect, the professors said, the state Supreme Court was shown a way to resolve the issue. "They actually have a little more power here than people think because they have a road map," said Mark A. Graber, a constitutional scholar at the University of Maryland.

The Gore legal team agreed.

"This court did not -- as the U.S. Supreme Court worried -- rely upon the Florida Constitution to circumscribe the Legislature's authority to establish a method of the selection of electors under the U.S. Constitution," Gore lawyers wrote in a brief filed with the court Tuesday.

Bush lawyers believe it isn't that simple.

They contend that the state Supreme Court relied on the Florida Constitution in requiring the state to accept hand recounts. They also argue that how the court clarifies that ruling is directly tied to Gore's separate challenge of the election results. If the court rejects Gore's challenge, there is no need to clarify the earlier opinion, Bush lawyers said Tuesday in briefs filed with the court.

"The period of uncertainty and instability regarding Florida's participation in the presidential election will be brought to an end and final resolution will be achieved for the 2000 presidential election," the Bush team wrote.

Bruce La Pierre, professor of law at Washington University in St. Louis, agreed the more pressing matter may be Gore's appeal of Judge Sauls' ruling.

Appellate courts traditionally defer to trial courts, assuming they applied the facts and the law correctly. "Otherwise, why have a trial court if everything's going to be appealed to the appellate court?" La Pierre said.

So the Supreme Court could decide against Gore by deferring to Sauls, who heard the witnesses and reviewed the evidence. To win the next round, La Pierre said, Gore's legal team must raise the specter that Sauls erred in applying the law.

One possible point of attack: Sauls' cited a 1982 court case in finding that there must be a preponderance of evidence that a "reasonable probability" exists that recounts would change the election results. Gore lawyers have argued that more recent state laws only require them to show the number of potential Gore votes is enough to "place the election in doubt."

The Democrats suggest the less rigorous standard than the one used by Sauls is the correct one.

"I think that's the issue," said Jon Mills, the interim dean of the University of Florida's law school.

Even if the Florida Supreme Court agrees with Gore, then what?

In more routine cases, the state's highest court could provide direction and send the case back to trial court for further hearings. But there does not appear to be time for that because of Tuesday's looming deadline for states to name their electors.

Stern said Gore's biggest loss could have come last week, when Sauls refused to start recounting votes first and worry about the legal issues later.

"Even if the Florida Supreme Court overruled Judge Sauls on the law," Stern said, "there may be no remedy."

Meanwhile Tuesday, the U.S. Appeals Court in Atlanta heard arguments in two separate but related appeals from Bush supporters fighting recounts. The Florida Democratic Party has argued there is no need for the appeals court to rule on the matter since manual recounts are finished and Bush has been certified the winner in the state.

"Why isn't this case moot? Why isn't this appeal moot?" Judge Charles Wilson, appointed by President Clinton, asked a GOP lawyer.

"No one has won this election, as far as I know," replied the GOP attorney, Theodore Olson. "It's still very up in the air."

-- Information from the Associated Press was included in this report.

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