Florida High Court May Hold Trump Card

The Florida Supreme Court, which has already ruled twice in Al Gore’s favor, may have one last wild card to play in the high-stakes post-presidential contest.

The odds are long, but Florida’s highest court still could toss out 25,000 absentee ballots from Seminole and Martin counties and name Al Gore the winner after hearing arguments today.

That could drag the election dispute into a deep judicial morass and pit high court against high court, an unprecedented standoff that was avoided even during the turbulent civil rights era. Two times now the U.S. Supreme Court, led by a conservative majority, has dressed down the more liberal Florida justices for the way they ruled on hand-counting votes.

“This could happen,” said Lance deHaven-Smith, associate director of the Florida Institute of Government in Tallahassee. “The Florida justices are so under siege, who knows what they will do? Everybody in this mess seems to have a trump card.”

Indeed, if the Florida Supreme Court made such a ruling, the Republicans would reach for their trump card: the Florida Legislature. Republican lawmakers control both chambers and would almost certainly accelerate efforts to directly appoint electoral delegates loyal to George W. Bush, creating even more political-legal chaos. Legislators are in a special session now, laying the groundwork for such a plan, which is essentially an end-run around the courts.

A senior Bush advisor says such nightmarish scenarios have haunted him all weekend. “There’s still a lot of twists and turns to this,” he frets.

Fla. Supreme Court Seen as Wild Card

The most unpredictable element seems to be Florida’s seven “Supremes.” Both Republicans and Democrats have described them as unabashed, independent and activist. They are capable of doing anything, some of their critics say.

The justices have clashed with the Republican-controlled Legislature on numerous occasions, struck down death penalty laws and anti-abortion measures and taken on the governor, Jeb Bush, younger brother of the presidential candidate.

While the GOP-controlled Legislature and governor may be the new face of Florida politics, the state Supreme Court is all about old Florida. All seven justices were appointed by Democratic governors. All are registered Democrats, save one independent.

When they first intervened in the election dispute on Nov. 21, the seven justices spoke in one, loud, clear voice: Keep counting. That reversed Republican Secretary of State Katherine Harris, who had tried to exclude hand counts because of a statutory deadline. The U.S. Supreme Court then weighed in, questioning the wisdom of the state court and sending back its ruling for clarification.

But on Friday, the Florida high court split 4-3 when the majority sharply reversed a trial judge and ordered hand counts statewide, a surprise decision that sent a jolt of electricity to the Gore campaign and made the contest look tight again.

Less than 24 hours later, the U.S. Supreme Court ripped into that decision, by a vote of 5-4, and brought the counts to a halt. Today the U.S. Supreme Court is scheduled to hear oral arguments on the matter, and the majority expressed serious concerns about what the Florida court had done.

After all this, the Florida Supreme Court may not have the stomach for another run-in, say some legal observers.

“They’ve pushed the envelope twice now and I can’t see it happening again.” said Steve Uhlfelder, a Tallahassee government lawyer. “And they struggled to get a fourth vote on Friday. They probably don’t have the votes to keep this up.”

Others, though, aren’t so sure.

“Based on what I’ve seen recently, there are four members on that court who feel strongly that there is no reason to bow down to the U.S. Supreme Court,” said Tommy Warren, a civil rights attorney here.

While Uhlfelder said the chances of the Florida Supreme Court throwing out absentee ballots from Seminole and Martin counties was less than that of having “an earthquake in Florida,” Warren doesn’t see it that way.

“If this were such a weak case, it would have been dismissed long ago,” Warren said. “My guess is that it was a very, very close question for them and though the defendants won, it wasn’t by much.”

Absentee Ballot Issue Still in Play

The two absentee vote lawsuits, filed by Democratic activists in Seminole and Martin counties, tried to paint a dark picture of a Republican conspiracy between Republican supervisors of election and party operatives. Both sides agreed that the supervisors did allow operatives to correct flawed absentee ballot applications, a violation of Florida law. But the question turned on what to do about it, and Republican lawyers argued that to throw out all the ballots was a remedy far too draconian.

The two judges who heard the cases separately both ruled for the Republicans Friday. Those decisions have been appealed to the Florida Supreme Court, which asked for legal briefs by 9 a.m. EST today.

In the Martin County appeal, lawyers indicated they will take a new tack--and try to use the Republicans’ own words against them.

Bush attorneys had argued last month that Florida law established deadlines for certifying the vote and that those deadlines needed to be followed to the letter of the law.

Democrats say that if the state election laws should be followed so literally, then the courts must not allow the 1998 Florida law saying only the voter, the voter’s legal guardian or the voter’s relative can fill out absentee ballot request forms to be broken.

“It’s an inconsistent position, and it may come back to haunt them with dire circumstances,” said Harry Jacobs, the Orlando, Fla.-area Democratic activist who brought the Seminole County lawsuit.

Republican attorneys dismissed Jacobs’ attack with the wave of a hand.

“This case is still like it was the day it was filed,” said Jonathan E. Sjorstrom, a Tallahassee attorney who represents the Republicans.

Both sides say the U.S. Supreme Court hearing today will not directly affect the Florida Supreme Court’s ability to rule on the two absentee ballot cases. But again, the Florida Supreme Court may not have the last word because the Republicans have already raised U.S. constitutional concerns that could land the case before the U.S. Supreme Court.

But the Florida Legislature has its own backup plan.

State Rep. Mario Diaz-Balart, a Miami Republican, has been paying close attention to the absentee ballot cases, if the state Supreme Court tries to “stick it” to the U.S. high court, he said.

“If they do it to spite the U.S. Supreme Court, it does put our electors at risk,” Diaz-Balart said.

For the past two weeks, Republican lawmakers have been saying they need to directly appoint delegates because the pending lawsuits threaten to imperil Florida’s 25 electoral votes.

Still, while many vow on the Legislature floor to fight for Florida’s votes, some Republican lawmakers acknowledge that it is very risky politically to get involved--especially since the popular vote in Florida was split so closely.

“I don’t want to do it,” said Republican state Sen. Ken Pruitt, who lives in Martin County. “But there are still cases out there. If the [U.S.] Supreme Court rules with us, I would think it’s over. But I’m not going to hit the button yet.”

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Day 33: A Summary

Developments Sunday in the unsettled presidential election:

Courts

In Washington, lawyers for Al Gore and George W. Bush filed briefs outlining their cases to be argued today before the U.S. Supreme Court. The high court issued an order Saturday halting hand recounts of more than 43,000 ballots statewide in Florida. Gore wants the count resumed, arguing that the right of voters to have their ballots counted ‘dwarfs any due process claim [Bush and others] assert here.’ Bush counters that a hand recount is unreliable because election officials in different Florida counties use different standards for determining whether a vote is valid. If Gore loses, his attorney said, ‘that’s the end of the road.’

In Tallahassee, Fla., the candidates’ attorneys prepared briefs for the Florida Supreme Court, which may hear Democrats’ appeal of two cases seeking to reject 25,000 absentee votes.

Legislature

Florida lawmakers took the day off from their special session, which the Republican leadership convened on Friday to name the Legislature’s own slate of presidential electors loyal to Bush. Both chambers plan to reconvene today, and the House could pass legislation Tuesday.

Candidates

In Austin, Texas, Bush and wife, Laura, hosted a holiday party for staff members.

Gore went to church in Arlington, Va., with his wife, Tipper, and daughter Kristin.

Sources: Times staff, Associated Press