Whose Interest?

Vice President Al Gore’s double-whammy defeat in the courts Monday would seem to all but assure Texas Gov. George W. Bush the White House. But if the outcome of this nail-biter election is still, technically, unsettled, the locus for a final legal resolution will now certainly be the Florida Supreme Court. Unless, of course, Gore’s support inside the Beltway among Democratic politicians, which has held firm since the election, begins to peel away. Congress’ top Democratic leaders, Sen. Tom Daschle and Rep. Richard A. Gephardt, said Monday they support Gore’s court appeal, and others began to chime in. But with Congress back in session, there will be enough fingers in the Washington political winds to mimic a human wave. But politics aside, the rights of voters may end up deeply bruised in this contest.

Rapid-fire decisions Monday by the U.S. Supreme Court and a Florida county judge lobbed the case back to the state high court for what is likely to be the final legal round. The U.S. Supreme Court asked the Florida justices to clarify their Nov. 21 ruling extending the deadline for hand-counted ballots; separately, Judge N. Sanders Sauls fully rejected Gore’s motion contesting Bush’s certified election victory. Gore’s legal team quickly appealed the Sauls decision--to the Florida Supreme Court.

In its Nov. 21 decision, the Florida court rightly insisted that the “real parties in interest” in all these challenges are not the candidates themselves but the voters, and the court defined its goal as reaching “a result that reflects the will of the voters, whatever that might be.” As it responds to the U.S. Supreme Court as well as appeals from Florida courts, probably including one from a pending trial over allegations of Republican tampering with absentee ballot applications in Seminole and Martin counties, the seven justices who sit in that domed Greek revival courthouse in Tallahassee would do well to keep those principles uppermost in mind.

The U.S. Supreme Court essentially punted Monday when it sent the hand-count case back to Tallahassee. Avoiding a decision on the merits of the historic dispute, the high court said two points are unclear: the extent to which the Florida Supreme Court saw the state constitution as “circumscribing the legislature’s authority” and the relevance of a 113-year-old federal election law.

The court’s unsigned decision not to decide would seem to confirm what appeared obvious in Friday’s session--that the justices are hopelessly divided over the merits yet mindful of the need for dispatch and consensus in an atmosphere of rising partisan bitterness. Their distress over what they regard as “ambiguous or obscure adjudications by state courts” is somewhat ironic given some of the high court’s own opaque rulings. Their call for clarification may have been the only point of agreement among all nine justices.

In Leon County, Judge Sauls’ ruling couldn’t be worse news for Gore. Flatly dismissing his bid for a recount of thousands of disputed ballots, Sauls said the Democrats had “failed to carry their requisite burden of proof.” Nonetheless, doubts and legitimate questions remain about voting irregularities in several Florida counties.

Weeks after Americans went to the polls, arcane legal tangles over chads, dimpled ballots and voting machine patents threaten to obscure the “real interest” that has always been front and center in this presidential election: the voters’ rights, both to cast a ballot and have it counted. But in Florida--where we still don’t know whether thousands of absentee ballot applications were mishandled--those rights may be time-limited.