Whoever is president may govern under a cloud

By RONALD BROWNSTEIN

© St. Petersburg Times, published December 10, 2000

TALLAHASSEE -- If there is a single message in the explosive rulings from the Florida Supreme Court Friday and the U.S. Supreme Court Saturday, it might be that neither George W. Bush nor Al Gore can win the presidency in a way that most supporters of the other will view as fair.

"It's a terrible ending, and it's terrible for both of them," says Republican consultant Scott Reed, the campaign manager for Bob Dole in 1996. "It's put a whole new layer of cloud over whoever ultimately wins."

On Friday, Republicans immediately denounced the 4-3 Florida Supreme Court ruling authorizing further recounts as a partisan effort to rewrite the law and an act of "judicial aggression." On Saturday, Democrats were just as outraged when the U.S. Supreme Court, on an equally polarized 5-4 vote, stopped the recounts only hours after they had begun.

Although no one could predict the course of those recounts, analysts in both parties thought they might have provided Gore a lead in Florida by today that could have changed public opinion.

Indeed, in an unusual aside, U.S. Supreme Court Justice Antonin Scalia argued Saturday that one reason for stopping the recount was to prevent a potential Gore lead from undermining the legitimacy of a Bush presidency if the U.S. Supreme Court ultimately ruled against including the result of the hand tabulations.

Democrats immediately said that by stopping the count, the conservative majority on the court paradoxically ensured the result Scalia sought to avoid -- in effect, guaranteeing that many Americans would question a Bush victory achieved after a last-minute decision to derail the hand counts.

"(Scalia) doesn't want to have the legitimacy of (a potential Bush) presidency undercut by the fact that people will know there were more votes for Vice President Gore than there were for Gov. Bush in Florida," David Boies, Gore's lead attorney, argued Saturday. "We don't think that's the right way to look at it. We think the right way to look at it is the way the four dissenting justices looked at it, that the legitimacy of any president that's elected is going to be impaired unless the American people understand there has been a full and fair count of all the votes."

The problem for the next president might be that now there is probably no count of the votes that all Americans will view as full and fair. Nor, with these narrow rulings, are there any institutions, even the highest courts in the state and the nation, that are viewed as above the fray. Just as Republicans denounced the Florida Supreme Court ruling as an effort to rewrite the law, Sen. Patrick Leahy, D-Vt., Saturday denounced the U.S. Supreme Court ruling as "extreme judicial activism" that would diminish the court's "moral posture" for years.

As Republicans quickly note, all seven of the Florida Supreme Court Justices were appointed by Democratic governors; Democrats note that seven of the nine U.S. Supreme Court Justices -- and all five who voted for Bush on Saturday -- were appointed by Republican presidents.

For Gore, the U.S. Supreme Court ruling was especially crushing because the hand counts had put him within hours of possibly fulfilling one of his most elusive goals since Election Day: taking a lead, even unofficial, in the state.

Throughout this struggle, Gore advisers have believed that they could win public opinion if they could produce a vote count that showed the vice president ahead -- even if the question of whether those votes would be included in the official result remained unresolved. In effect, they have believed that taking the lead would legitimize the process of counting votes.

"If you get a count that comes up with a different number that shows Gore ahead that number will be ingrained in people's minds, the way 537 (Bush's lead in the result certified on Nov. 26) is ingrained in people's minds now," Gore communications director Mark Fabiani said only hours before the Supreme Court halted the recounts. "You will move instantly to a whole different universe."

The Gore team so strongly believed that proposition that it released a partial result from 13 counties Saturday afternoon it said showed Gore gaining 58 votes; Republicans immediately charged that the disclosure violated Leon County Court Judge Terry Lewis' order Saturday barring the release of any running tally.

Most Republicans agreed that newspaper headlines today or Monday potentially showing Gore ahead could have strengthened the vice president for the end game of this extraordinary political war.

If the recounts had pushed Gore ahead, Democrats believe that would have made it tougher for the Republican-controlled Florida Legislature to approve legislation directly allocating the state's 25 electoral votes to Bush.

Some Republicans go along with that, to a degree.

"I think there would be a big-time backlash and it would be very damaging not only to members of the Legislature but to the party as a whole," says Tom Slade, the former state GOP chairman. "If Gore is perceived by this country as the clear winner of the election and the Legislature certifies Bush there would be a lot of negative political fallout from this."

Some people think that if Gore moved ahead, even the U.S. Supreme Court might be forced to think twice about overturning the Florida Supreme Court decision -- and in effect nullifying a popular vote count that put Gore in the White House.

Perhaps the clearest impact from a Gore lead would be the difficulty it presents for Bush to gain legitimacy, even if the U.S. Supreme Court ultimately ruled those votes didn't count.

Scalia, perhaps the most court's most conservative member, acknowledged that point in his concurring opinion.

Yet Heather Gerken, an assistant professor at Harvard Law School, notes that if the Supreme Court, in a 5-4 conservative-liberal split, now backs Bush and overturns the Florida Supreme Court, it could summon that cloud itself.

"It makes it even harder on Bush to govern . . . to have five Republicans (on the Supreme Court) ruling in his favor with two Republicans and two Democrats dissenting," she said.

The reverse, though, is true as well. Even if the U.S. Supreme Court upholds the Florida Supreme Court ruling, Republicans are so convinced that the state court is displaying partisan motivations that there seems virtually no prospect GOP supporters will consider a Gore victory legitimate.

"It just gets uglier from here on out," says Tom Cole, the chief of staff at the Republican National Committee.

That might be one of the few sentiments on which both parties can still agree.

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