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Court's ruling faces history's judgment

By TIM NICKENS

© St. Petersburg Times, published December 7, 2000


TALLAHASSEE -- Al Gore called shortly after noon.

His lawyers had just filed the 50-page brief for his last-ditch appeal to the Florida Supreme Court. Oral arguments will be this morning.

"He said he was pleased with our effort, and he thought we had done a good job, and he appreciated it," Dexter Douglass recounted Wednesday afternoon.

And then the vice president wished Douglass happy birthday.

Douglass, one of Florida's best-known trial lawyers, spent his 71st birthday helping write Gore's brief. The Gore legal team is holed up in an office that Douglass owns next to his private law office.

The former general counsel for Gov. Lawton Chiles helped oversee the state's litigation against the tobacco companies and has had more than his share of high-profile cases in private practice. He calls Gore's case "historically bigger" than any other he has handled. But he won't predict whether Gore will prevail at the Florida Supreme Court and get the vote recounts he wants.

That may make Douglass unique in this town.

The hotel handyman argues that the case should be dismissed. Law professors debate the finer points of the arguments made by Gore's lawyers and those for George W. Bush. Journalists from around the country offer their assessments.

In fact, virtually nothing about this presidential drama has been predictable.

At 10 a.m., the state Supreme Court will hear Gore's appeal of Leon Circuit Judge N. Sanders Sauls' ruling that no recounts should be done. The Florida Legislature will open a special session Friday and prepare to appoint the state's 25 electors if the outcome of the legal battles remains in doubt by Tuesday -- the federal deadline for states to name electors to the Electoral College.

Gov. Jeb Bush would not say much Wednesday about the Florida Supreme Court.

"Let's let it all play out and reflect on it after the fact," he said before laughing about a question about the justices' independence. "There's no question about their independence -- and that's a good thing."

The Florida governor offered minicritiques of some of the key stops in the post-election fight for the presidency between the vice president and his older brother.

On Palm Beach County Judge Charles Burton, the chairman of the Palm Beach canvassing board whom he appointed to the bench: "I'm taking full credit. I thought he handled the whole canvassing issue with a good sense of humor and a patience and a temperament I bet will serve him very well on the bench."

On Leon Circuit Judge Terry Lewis' decision not to extend state deadlines for hand recounts: "I thought Judge Lewis' decision was a very good one."

On the Florida Supreme Court's opinion that overruled Lewis, extended the deadlines and required the hand recounts to be included in the state totals: "I'm not a lawyer, but it was confusing in that it was kind of open-ended and it seemed like they were going beyond their bounds."

Bush won the biggest court victory so far when Sauls rejected Gore's election challenge and refused to recount thousands of votes. But the Texas governor's overall batting average isn't so hot.

The 11th U.S. Circuit Court of Appeals refused Bush's request Wednesday to toss out hand recounts that were approved by the state Supreme Court. A federal district court in Miami did the same thing several weeks ago. And Monday's U.S. Supreme Court opinion, which set aside the state Supreme Court ruling, was a no-decision that offered the state court a simple way to resolve its concerns.

But the Florida Supreme Court is the court that Republicans love to hate. They consider it an activist court that acts like a legislature and writes laws instead of interpreting them. All seven justices were appointed by Democratic governors.

"The Republican legislators and the governor's office have been after the court for years now," said Sen. Kendrick Meek, D-Miami.

The Christian Coalition announced a new Web site Wednesday to promote the election of justices, who are now appointed by the governor.

So it is clear the justices are under tremendous legal and political pressure today as they consider a case that most likely will decide the presidency.

In briefs filed Wednesday, Gore lawyers went through the math. Bush leads Gore by 537 votes. Gore could make up 434 votes if the court would add 215 votes from Palm Beach County and 168 votes from Miami-Dade County from hand recounts, plus 51 votes from Nassau County's mechanical recount.

That would narrow the margin to 103 votes out of nearly 6-million votes before any new recounts. Gore wants the Supreme Court to oversee hand recounts of another 3,300 ballots from Palm Beach County and another 9,000 ballots from Miami-Dade County.

The Gore team contends Judge Sauls was wrong when he ruled that any recount would have to include every vote in the state and that county canvassing boards can only be overturned when there is a clear abuse of discretion.

Most importantly, the Democrat's brief contends that Sauls used the wrong standard to determine whether to recount votes. The judge said there must be "a reasonable probability" that the election results would change. Gore's lawyers contend they must only show the contested votes "will change or place in doubt the result of the election."

They know the clock is ticking.

"Now is the last chance for a legal judgment to be rendered in this case," the lawyers wrote. "In but a few more days, only the judgment of history will be left to fall upon a system where deliberate obstruction has succeeded in achieving delay -- and where further delays risk succeeding in handing democracy a defeat."

The argument by Bush lawyers is more succinct: Sauls is right and Gore is wrong. Even if Gore is right, they contend, there isn't time to recount votes before Tuesday's deadline. They note the election was Nov. 7.

"One month later, after lawsuit upon lawsuit and recount after recount, the nation's leader remains in doubt," the Bush brief says. "At no time in our nation's history has a presidential race been decided by an election contest in a court of law."

Whether that remains true rests in the hands this morning of the five men and two women on the Florida Supreme Court.

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