Again, a day that could be the end

Experts expect Bush to prevail when the U.S. Supreme Court considers whether hand recounts should resume or not.

By BILL ADAIR

© St. Petersburg Times, published December 11, 2000

WASHINGTON -- Today, when the U.S. Supreme Court hears arguments in George W. Bush vs. Albert Gore Jr., the justices will have an opportunity to resolve an election dispute that has divided the nation.

Bush is a strong favorite to win the case and become president, legal scholars said Sunday. The court's extraordinary decision over the weekend to stop a statewide recount in Florida suggests that the Texas governor has the five votes needed to win.

"The fact that they issued the stay means they believe Bush will probably prevail," said Michael Glennon, author of When No Majority Rules: The Electoral College and Presidential Succession.

When the court blocked the recount by a 5-4 margin Saturday, Justice Antonin Scalia issued a statement that said a majority of the justices "believe that the petitioner has a substantial probability of success."

As both sides previewed their cases in legal filings, Gore's advisers acknowledged the high court's decision could well be the end of a long battle.

"If no votes are counted, then I think that's the end of the road," said David Boies, who will argue the case for Gore.

"We are going to follow the dictates of the United States Supreme Court," said James A. Baker III, the former secretary of state who represents Bush. "You can rest assured on that."

Today's arguments, scheduled to begin at 11 a.m., will be similar to the debate the court heard Dec. 1 in the previous case, Bush vs. Palm Beach County Canvassing Board. Those arguments focused on whether the Florida Supreme Court overstepped its authority when it extended the deadline for hand recounts. Bush's lawyer Theodore Olson said the state court essentially rewrote election law by setting a new deadline.

Olson, who will represent Bush again today, is expected to make similar arguments, saying that the Florida court exceeded its authority Friday when it ordered the statewide recount. He will say the state court exercised powers that actually belong to the Florida Legislature, because Article II of the Constitution says presidential electors are chosen "in such manner as the Legislature may direct."

Pregnant chad also will be an important issue for the Bush legal team.

Olson is expected to criticize the inconsistent way Florida counties conducted hand recounts, which he says violates the guarantees of equal protection and due process in the U.S. Constitution.

The Bush campaign called the recount "arbitrary, capricious and standardless" in a court filing Sunday.

"With humans making subjective determinations about an absent voter's intent, without standards established by law, there is always the risk that the method for determining how to count a vote will be influenced, consciously or unconsciously, by the officials' desire for a particular result," the Bush lawyers wrote.

Boies, the lead Gore attorney, is expected to argue today that the Florida Supreme Court was acting within the bounds of the U.S. Constitution and under power granted to the court by the Florida Legislature.

"In its ruling, the Florida court did not "make law' or establish any new legal standards that conflict with legislative enactments," the Gore team said in its court filing Sunday. "Rather, the court engaged in a routine exercise of statutory interpretation" by following laws written by the Legislature.

The Gore lawyers wrote that Bush was using "a radical new proposition" in saying that "the highest appellate court of the state may not exercise its ordinary appellate jurisdiction over decisions of lower state courts."

Gore's lawyers acknowledged that there will be inconsistencies in recounts "so long as as the count is conducted by humans." But that is true in every state in the nation because voting methods vary widely.

The Gore lawyers said the Florida Supreme Court gave counties a uniform standard when it directed them to recount ballots by determining the voter's intent.

"The Florida Supreme Court's order does nothing more than place the voters whose votes were not tabulated by the machine on the same footing as those whose votes were so tabulated. In the end, all voters are treated equally: Ballots that reflect their intent are counted," Gore's attorneys wrote.

The key justices in today's arguments are Sandra Day O'Connor and Anthony Kennedy, who are considered possible swing votes. But they were among the five justices who decided to block the recount.

The court will follow its usual practice of prohibiting television cameras during the arguments, but it plans to again release an audio tape immediately after the session. A transcript will be available at www.sptimes.com and on the court's Web site, www.supremecourtus.gov, this afternoon.

A decision by the court, expected in the next day or two, may not be the final word in the monthlong dispute, however.

Legal scholars said that with the election so close, there still could be other strange twists such as presidential electors switching their allegiance or congressional action. Lawsuits involving absentee ballots in Seminole and Martin counties are still under appeal. But the law professors said that if the nation's highest court rules in Bush's favor this week, it's highly likely he will become president.

"It's basically finished" if the court sides with Bush, said Mary Cheh, a law professor at George Washington University.

Legal scholars say the court's apparent willingness to play an active role in the case is surprising because the same justices who voted to block the Florida recount have been the most adamant supporters of state's rights.

"It is mind-boggling to me that these justices, who proclaim their passion for state's rights, would be so ready to interfere with a state process," said Martin Redish, a law professor at Northwestern University. "I don't know how anyone could take (Chief Justice William) Rehnquist and Scalia seriously in the future when they wax eloquent about federalism."

If the court sides with Bush, as many expect, he might win by a narrow 5-4 vote.

"We had hoped the Supreme Court justices were going to be the grown-ups, that they were going to help us through this mess," said Cheh. "But they look as divided and politically motivated as the rest of us."

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

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