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Court could call it today
© St. Petersburg Times, published December 8, 2000 TALLAHASSEE -- With one eye on the clock, the Florida Supreme Court will continue to ponder today whether to recount thousands of votes as Al Gore desperately wants or hand the presidency to George W. Bush. Watching the court from across Duval Street will be the Florida Legislature, which opens a special session at noon and is poised to appoint electors for Bush if the court rules for Gore. It is the beginning of the last chapter in a presidential thriller. The historic drama could end as early as today with a sudden court victory for Bush, who leads Gore in Florida's certified results by just 537 votes. Or it could hurtle toward a constitutional crisis pitting two branches of government against each other as votes are recounted and time ticks away. Tuesday is the federal deadline for states to have their electors in place for the Electoral College, which meets Dec. 18. Both Gore and Bush hope the Florida Supreme Court will be the final word on what happens between now and next week's deadline. "I think that's going to be the end of it," Gore lawyer David Boies said after Thursday's arguments before the seven justices. The scenarios are clear. If the Florida Supreme Court agrees with Bush and refuses to order recounts, the Texas governor will win the state's 25 electoral votes and become the next president. Gore would not be expected to appeal to the U.S. Supreme Court, and he probably would concede quickly. The Legislature could adjourn without appointing new electors. There are two wrinkles. Gore indicated this week he might wait for lawsuits over absentee ballots in Martin and Seminole counties to be resolved as well. Democrats argue that thousands of absentee ballots should be thrown out because elections supervisors in those counties allowed Republicans to correct errors on the ballot applications. Those trials ended Thursday, and the judges are expected to rule today. But if Gore loses at the Florida Supreme Court, he would be hard-pressed to remain in the race even if one of the trial judges agreed thousands of absentee ballots in Martin or Seminole should be thrown out. Such a decision would be immediately appealed by Republicans, and many of Gore's supporters in Congress would not stand by him for that long. "This is coming to an end," said Sen. Dick Durbin, D-Ill. Republicans already are portraying Gore as a hypocrite for asking for votes to be recounted in his election challenge while speaking favorably of throwing out absentee votes in the other two lawsuits. He is not a plaintiff in the cases involving Seminole and Martin counties, but his recent interest has been noted. "It's clear the thin veil of separation between Al Gore and these lawsuits is made of see-through material," Bush spokesman Tucker Eskew said this week. If Gore wins at the Florida Supreme Court, expect a frenzied weekend. More than 12,000 ballots from Palm Beach and Miami-Dade could be counted, possibly at the Leon County public library by teams organized by the county clerk. Bush would appeal to the U.S. Supreme Court. The Legislature, whose Republican leaders contend the state Supreme Court is too activist, would prepare to approve a resolution Wednesday that would appoint a slate of electors for Bush. In that scenario, Florida could wind up with two sets of electors, one for Gore and one for Bush. It would be up to Congress to decide which ones to use when it counts the electoral votes Jan. 5. With the U.S. Supreme Court, state legislators and the rest of the world looking over their shoulders, the state Supreme Court justices heard more than an hour of arguments Thursday on whether votes should be recounted. Gore reportedly called Boies on his cellular telephone just as the lawyer was walking into court, and the vice president watched the proceedings from his home in Washington with running mate Joseph Lieberman. Bush was at his office in the Texas Capitol and did not watch, but he was briefed later by former Secretary of State James Baker, his point man in Florida. The justices did as much talking as the lawyers. Underscoring the sense of urgency, neither Boies nor Bush lawyer Barry Richard was able to get beyond introducing himself before the justices began firing questions. How does the court's authority relate to the Legislature's power to appoint electors granted by the U.S. Constitution? Why shouldn't all votes have to be recounted in a statewide election challenge? Does Gore have to prove there is a "reasonable probability" the outcome would be different if votes are recounted, or merely show there are enough votes to put the outcome in doubt? And, perhaps most important, is there time to recount thousands of votes before Tuesday? "What is the time parameter for being able to complete a recount of those undervotes?" asked Justice Barbara Pariente, referring to 9,000 ballots in Miami-Dade County that did not register a vote for president when they were mechanically counted. Boies assured her the job could be completed by Tuesday if enough counters were assigned. Chief Justice Charles Wells questioned both sides about whether the state Supreme Court has the authority to review Leon Circuit Judge N. Sanders Sauls' rejection of Gore's challenge. The U.S. Supreme Court on Monday set aside the state Supreme Court's opinion that extended state deadlines and required state elections officials to add hand recounts into the state totals. The nation's highest court asked for clarification and specifically cited the Legislature's authority under the federal Constitution to decide how to appoint electors. "I don't think the Constitution of the United States in any way means that the Legislature has to sit both as a legislative body and a judicial body just because an election of presidential electors is involved," Boies told Wells. But Richard said the court's power to review Sauls' decision not to recount votes is limited. Justices Fred Lewis, Major B. Harding and Peggy Quince questioned why all of Florida's votes shouldn't be recounted, or at least those votes in all counties with punch card voting systems like those in Miami-Dade and Palm Beach counties. Those concerns echo Bush's arguments. But Boies pointed out that the state's certified results already include hand recounts from some counties. Other justices sharply questioned why Sauls did not look at a punch card ballot from Miami-Dade or Palm Beach counties. More than 1-million ballots from the two counties were trucked to the Leon County Courthouse, including the 3,300 from Palm Beach and the 9,000 from Miami-Dade that Gore hopes will be manually recounted. Some justices also speculated aloud whether Sauls used the right standard to determine whether hand recounts are warranted. Sauls ruled that Gore's lawyers had to show there is a "reasonable probability" that the results would change after a hand recount, not just place the winner of the election in doubt. Given that Bush leads by just 537 votes and Gore wants 9,000 Miami-Dade ballots to be recounted, Justice Harry Lee Anstead said he believed Gore had met "the preliminary step of saying the number of challenged ballots would place in question the outcome of the election." Quince seemed to agree. "I'm really having a problem with the "reasonable probability of a different result' standard that Judge Sauls talks about," Quince told Richard, the Bush lawyer. But Richard argued that Gore's team had to prove that there was something wrong with enough voting machines and ballots to affect the election result. He said the issue is not what standard Sauls used to decide whether a recount is warranted. "This court," he said, "cannot reverse the lower court judge unless there is a complete lack of substantial, competent evidence in the record to support his decision, regardless of the standard." - Information from the Associated Press was used in this report.
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From the Times election desk Top stories Lucy Morgan Howard Troxler From Tallahassee From Austin, Texas Washington From Citrus County Election notebook Opinion From the AP national wire  |
