As Choices Dwindle, Vice President Will Look to Florida’s High Court

Al Gore’s struggle for the White House has been reduced almost entirely to the hope that the Florida Supreme Court can navigate between skeptical courts above and below it to order further hand recounts of thousands of disputed ballots.

Although leading Democrats publicly circled the wagons after Leon County Circuit Judge N. Sanders Sauls brusquely rejected Gore’s contest to the election result, the vice president’s advisors recognize that--politically and practically--his options are dwindling.

“I think we have one last bite at the apple,” one senior Gore advisor said. “But it’s not going to be a very big one or a very long one. And it’s going to have to happen very quickly.”

Other wild cards still loom in this relentlessly unpredictable struggle--particularly a trial that will begin Wednesday here on whether Republican operatives were allowed to mishandle absentee ballot applications in Seminole County. If the state courts threw out all of the absentee ballots cast in that county, it would cost Republican George W. Bush about 4,800 votes, more than enough to give Democrat Gore an insurmountable lead. A similar case pending in Martin County could cost Bush about 2,800 votes.

But a day that began with confusion over the meaning of the U.S. Supreme Court’s first ruling in the case ended with a resoundingly unambiguous decision from Sauls that struck some observers as, if not the end for Gore, perhaps the beginning of the end. “I think he’s hanging by a thread,” said David Cardwell, a former Florida election commissioner.

Indeed, a stark disparity has opened in the range of options available to the two combatants.

For Gore, all roads lead to one destination: the Florida Supreme Court. The court will be Gore’s only resort in his bid to reverse Sauls’ decision, and it inevitably will hold the final word on the disputes concerning absentee ballots in Seminole and Martin counties. If the state court rules against Gore on those questions, he has no obvious source of federal appeal--nor would he likely find much patience in the Democratic Party or the country for such efforts, even if he could cobble together legal grounds.

“We have said it all along: The Florida Supreme Court will resolve the matter one way or the other, and that’s where it will end for us,” Mark D. Fabiani, Gore’s communications director, said flatly.

Bush, by contrast, still has cards to play on multiple levels.

First, the Texas governor can extinguish Gore’s hope simply by prevailing in the appeal of Sauls’ ruling to the Florida Supreme Court. Although the state high court showed no hesitation last month about overruling a circuit judge in its decision to extend the deadline for manual recounts, many observers believe it may be more hesitant to dismiss Sauls’ finding, because his ruling was much more heavily based on a factual investigation. Traditionally, appellate courts have been more deferential toward lower courts concerning issues of fact than interpretations of law, many analysts note.

“Sauls’ ruling created a very formidable hurdle for Gore,” said Nat Stern, a Florida State University law professor. “This is a case where the legal issue blends into the factual one.”

If the state court rules against Bush, he still has other alternatives.

For starters, Bush attorneys say they could appeal a state Supreme Court decision favoring Gore’s contest to federal court--particularly if the Florida high court also uses that decision to respond to the U.S. Supreme Court’s ruling Monday.

At the same time, a federal appeals court is hearing Bush’s argument that Florida has violated the equal protection clause of the U.S. Constitution by allowing manual recounts in some counties, but not in all. And the U.S. Supreme Court still could strike down the Florida Supreme Court’s decision extending the recount deadline if it doesn’t accept the new reasoning the state justices will attempt to provide. That could cost Gore the one prize he gained from that extension: the 567 net votes he earned during the manual recount in Broward County.

Even if he can’t prevail in the courts, Bush has two other safety nets. If the Florida Supreme Court upholds Gore’s contest and authorizes further recounts, the Republican-controlled state Legislature could convene a special session to directly name the state’s electoral college representatives.

And if that produces two separate slates of electors--one authorized by the state courts for Gore, the other by the state Legislature for Bush--the federal law for resolving such conflicts would revert the decision to the governor of the state that sent the disputed slates. In this case, that would be Jeb Bush, the Republican candidate’s brother. None of these Bush options is fail-safe. Leaders in the Florida Senate are hesitant about taking the unprecedented step of attempting to substitute their own electors for those chosen through the popular vote.

Most observers believe the U.S. Supreme Court signaled Monday that it would uphold the state Supreme Court decision extending the deadline for manual recounts if the Florida court can show it relied primarily on state law (rather than on the state constitution) in reaching it. And even if the U.S. Supreme Court overturned that earlier state ruling, Gore attorneys say they could simply seek the restoration of the Broward County votes through the contest procedure the state Supreme Court will hear later this week.

Bush will win the White House if he can prevail on almost any of these fronts; Gore cannot afford any more losses. And the bottom line for the vice president is that his time is dwindling as quickly as his options: Each day of legal reversal and uncertainty leaves him with one less day to count the disputed Florida votes before the electoral college meets Dec. 18.

“At the end of the day, you’ve got to start making up votes,” one senior House Democratic aide said. “That’s the real problem Gore has here: The clock is ticking.”

Sauls’ emphatic, at times virtually dismissive, ruling immediately encouraged Republicans to intensify their calls for Gore to concede the election. “It’s time for everyone to do what’s in the best interest of the country,” said Ben Ginsberg, a top attorney for Bush.

Gore did not appear under immediate threat Monday that significant numbers of Democrats would begin echoing those demands.

Rep. Calvin M. Dooley (D-Visalia)--who leads a coalition of centrist House Democrats, most of whom represent vulnerable swing districts--said after Sauls’ decision he saw no wavering of Democratic support for one final appeal from Gore.

“I think the vast majority of my colleagues will support the vice president’s decision to appeal to the state Supreme Court,” he said. “We always expected the state Supreme Court to have the final say on how we achieve the most accurate count in Florida.”

With polls diverging on whether Americans think Gore should now concede, the intensity--if not ferocity--of Sauls’ ruling could solidify a public sense that the vice president is carrying the contest past a reasonable point. Yet, public opinion does not appear to be Gore’s greatest problem--if for no other reason than his legal options are likely to be exhausted, one way or the other, before a clear consensus coalesces against him.