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DECISION 2000 / AMERICA WAITS

Gore Camp Sees Pluses, Minuses in Court Action

Judiciary: A negative ruling by the U.S. justices would not derail the Florida contest suits, but it could be damaging politically.

November 29, 2000|RONALD BROWNSTEIN | TIMES POLITICAL WRITER

TALLAHASSEE, Fla. — With the clock urgently ticking, lawyers for Vice President Al Gore are devising a fallback plan for continuing his fight if the U.S. Supreme Court upholds George W. Bush's challenge to Florida's manual vote recount, senior aides said.

Even as the Gore camp filed briefs with the high court Tuesday, aides said they now view a negative ruling as more of a political than a legal threat.

"The psychological, cultural and political impact [of the Supreme Court's decision] . . . would be the largest in terms of the real world," said Harvard law professor Laurence H. Tribe, who will present Gore's argument before the court.

In fact, senior attorneys in both camps said that even if the justices do overturn the Florida Supreme Court decision that extended the hand-count deadline, the practical effect may be limited.

The reason: Gore's push for further recounts now is being conducted under the contest procedures of Florida law--which are not directly at issue in the U.S. Supreme Court case. But senior Gore aides worry that if the high court rules against him, it will erode already-wavering public tolerance for pressing his fight.

"The consensus appears to be that, from a legal point of view, a Supreme Court decision might not affect us that much," another senior Gore advisor agreed. "But my political point of view says it would be an extremely damaging thing. . . . At this point, Americans are looking for signs from the court system in general. And whoever achieves the next victory or suffers the next defeat, it might be a pivotal moment."

The U.S. Supreme Court will hear oral arguments on the case Friday and is expected to issue a ruling early next week.

Effect on Gore Case Seen as Limited

The central question before the justices is whether last week's state Supreme Court decision effectively rewrote Florida's election laws. Bush's camp argues that the state court violated a federal statute that requires electoral college delegates to be chosen under laws in force on election day.

But Gore's challenge is proceeding under the contest provisions of Florida law, which were unambiguously in place on election day. Attorneys in both camps say that even if the U.S. Supreme Court strikes down the Florida ruling, it would not derail Gore's legal case.

"Can the Supreme Court decision affect where we are now? In the short run, the answer to that is no," one senior Bush legal advisor said.

Attorneys on both sides caution that no one can predict how broad a decision the U.S. Supreme Court may reach. But most believe that if the high court overrules the Florida Supreme Court, the practical effect would be to turn the clock back to Nov. 18--the date Secretary of State Katherine Harris originally sought to certify Bush as the winner in Florida. At that point, Bush led Gore by 930 votes.

Since then, Gore has gained 567 votes through a hand recount in Broward County, while Bush has gained a smattering of votes through reconsideration of overseas absentee ballots that were rejected earlier; in all, Bush's lead stood at 537 votes when Harris certified his victory after the state Supreme Court's Sunday recount deadline had passed.

But four senior advisors said the Gore camp is prepared to seek the restoration of those Broward County votes through the contest procedure. The Florida law governing elections gives the state courts broad authority to order any remedy that would ensure that the winning candidate is actually the one who received the most votes.

Under that provision, Gore has asked the Circuit Court in Leon County--where the state election division is located--to appoint special masters to finish the hand recount in Miami-Dade County--and to reassess thousands of ballots rejected by the Palm Beach County canvassing board as lacking evidence of "voter intent" to support Gore or Bush.

Possible Attempt to Amend Contest Filing

Advisors say that if the U.S. Supreme Court rules against Gore, he simply could amend his contest filing to ask the state courts to also restore the results of the manual recount that Broward County officials completed last weekend.

Tribe said "it's possible" to amend the contest request to seek the restoration of the Broward votes, and "that's why I don't think [a Supreme Court ruling against us] necessarily would be fatal."

"Anything one could have obtained by a recount could in principle" be obtained under the contest procedure, he added.

David Cardwell, a former Florida election commissioner, agreed that Gore would retain the legal right to seek the Broward County votes by amending his contest. But, he said, the Florida courts would have to approve inclusion of the new results.

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