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Bush Wins in Supreme Court; Gore Is Pressured to Concede

TIMES STAFF WRITERS

In a dramatic coda to a remarkable election, a divided U.S. Supreme Court cleared the way Tuesday night for Texas Gov. George W. Bush to become the nation’s 43rd president by calling a halt to the counting of Florida’s disputed ballots.

Capping hours of suspenseful deliberations, the justices voted, 5 to 4, to overturn a Florida Supreme Court decision allowing the hand tabulations sought by Vice President Al Gore.

The Bush camp hailed the decision as an unqualified triumph. The Gore camp withheld comment pending further study of the ruling.

But pressure mounted on Gore to concede, as fellow Democrats immediately started coaxing him to abandon his postelection struggle.

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“This is it,” said Ed Rendell, general chairman of the Democratic National Committee.

“Clearly the race for the presidency has come to an end,” agreed Sen. Robert Torricelli (D-N.J.).

The high court decision, a complicated skein of overlapping opinions, provided a fittingly confusing end to a campaign that has been muddled from the moment the polls closed.

The opinion in Bush vs. Gore was handed down at 10 p.m. EST, exactly five weeks after the election night debacle in which the television networks first called the presidency for Bush, then judged it too close to call.

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The justices said that a hand recount would be unfair and unconstitutional because the state of Florida lacked a clear standard for deciding what is a legal vote. It is too late to set such standards, the court’s conservative majority said.

Gore hoped a recount of several thousand undervotes--ballots that failed to register a preference when run through counting machines--would help him overcome Bush’s Florida lead of fewer than 200 votes. Both candidates need the state’s 25 electoral votes to claim the White House.

But the Supreme Court’s decision suggests the court’s majority was determined to block Gore from winning the bitterly fought Florida race by hand counting disputed ballots.

The majority cited the federal law that says the state’s choice of electors “shall be conclusive” so long as all disputes are settled by Dec. 12, today, six days before the electors meet in state capitals to vote for the next president.

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And by overturning the Florida Supreme Court’s ruling, the high court rejected Gore’s last remaining challenge.

All five justices in the majority are Republicans who were appointed by Presidents Nixon, Reagan or Bush.

In dissent, Justice Stephen G. Breyer, a Clinton appointee, called Tuesday’s decision a “self-inflicted wound--a wound that may harm not just the court but the nation.”

The other dissenters angrily criticized the conservatives for first stopping the hand recounts on Saturday and then announcing late Tuesday that there was no time to resume them with clear standards.

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“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the law,” wrote dissenting Justice John Paul Stevens, who was appointed by Republican President Ford.

The justices ruled hours after the GOP-run Florida House approved a resolution awarding the state’s 25 electors to Bush--an action that may now be moot.

In another boost for Bush, the Florida Supreme Court refused to throw out thousands of absentee ballots in Republican-leaning Seminole and Martin counties--a move that could have pushed Gore into the lead in Florida for the first time since the Nov. 7 election. The vice president was never a party to the suits, but he took a keen interest in their progress.

Ruling 6-0, the Florida justices said the absentee votes should count even though local election officials allowed GOP activists to correct absentee ballot applications that were improperly filled out. Democrats, who did not have the same opportunity, argued that Bush received more than 2,000 votes because of the arrangements--and said it amounted to election fraud.

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The high court disagreed. Reading a summary of their ruling on the courthouse steps, spokesman Craig Waters said the justices could find no evidence of fraud in either case and upheld the lower courts’ rejection of the lawsuits last week.

“That’s it,” Ken Wright, an attorney for the Florida Republican Party, said after the decision. “I think the fat lady has sung.”

But the decisive blow came from the high court in Washington.

The five conservative justices were divided among themselves as to why the Florida court should be reversed. The fractured set of opinions strongly suggests that they found it much easier to agree on a result than a reason.

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In the end, the ruling was surprisingly limited. The majority did not conclude that the hand recounts ordered by the Florida courts were unnecessary or illegal. Further, the high court did not rule that the Florida judges had changed the rules after election day.

Justices Sandra Day O’Connor and Anthony M. Kennedy played the decisive role. They joined their conservative colleagues only on the narrow rationale that the hand counts would violate the equal protection clause of the Constitution because the standards were not clear and precise.

For the process to be constitutional, the unread ballots must be judged under “specific rules designed to ensure uniform treatment,” they said.

Chief Justice William H. Rehnquist, Antonin Scalia and Clarence Thomas said in a separate, concurring opinion that they would have gone further and ruled that the state judges had unconstitutionally changed the rules for the presidential election after election day.

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All four of the liberal justices--including David H. Souter, a Bush appointee, and Ruth Bader Ginsburg, a Clinton appointee--issued separate dissents. Several of them accused their conservative colleagues of making up a weak federal rationale to justify overturning a state court’s interpretation of state election law.

In a partial concession, Souter and Breyer said they agreed on the need for strict, clear standards for counting ballots. But both said the problem could be easily resolved by telling the Florida courts to set a more precise standard.

During Monday’s oral argument, they suggested paper ballots that had a punch hole would count, while those that were merely indented would not.

“Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18,” Souter said in his dissent.

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“I agree [on the need for] the adoption of uniform standards,” Breyer said. “Nonetheless, there is no justification for the majority’s remedy, which is simply to reverse the lower court and halt the recount entirely.”

Two weeks ago, when Bush’s lawyers appealed, the justices voted to set aside the Florida Supreme Court’s first ruling in the case, which extended the time period for a manual recounting of votes in South Florida.

On Saturday, the five conservatives voted together to stop the recounts of an estimated 43,000 ballots in Florida that went unread by the tabulating machines.

Gore’s lawyers particularly wanted to count the remaining 9,000 unread ballots from Miami-Dade County, and they told the court that could have been completed in one more day.

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However, O’Connor and Kennedy agreed with the complaint voiced by Bush lawyer’s that the county-by-county hand counts would violate the Constitution’s equal treatment guarantee, a claim that most lawyers saw as unusually weak.

Since states and counties nationwide use different systems for counting votes--from electronic scanners to punch card machines and paper ballots--all states could be charged with violating the Constitution’s equal protection clause if it were interpreted to require uniform systems for tallying votes.

Gore’s lawyers pointed out that the punch card systems used in South Florida are far more likely to miss legal votes than scanners, for example.

During Monday’s oral argument, Kennedy said the statewide recount ordered by the Florida Supreme Court would be “standardless” because some counties might include ballots with “dimples” or “identations” and others would not. This would create unequal standards for counting votes, he said.

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The Florida Supreme Court had said the unread ballots should be examined to determine the “actual intent” of the voter.

The five-member conservative majority spoke through two opinions. One was unsigned and spoke for all of them. It said the state must “assure uniformity” in counting the votes. “The state has not shown its procedures include the necessary safeguards,” they said. Moreover, this problem cannot be solved in time because of the federal deadline for resolving controversies over the state’s electors, they concluded.

“A desire for speed is not a general excuse for ignoring equal protection guarantees,” the majority said. The federal law protecting the state’s electors from further challenge “requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards.”

The justices were apparently determined to issue their ruling before midnight Tuesday, believing that federal law protected Bush’s electors in Florida from a further challenge in Congress.

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The postelection battle has heightened the partisan divide around the nation and drawn judges to the fray as well.

Nearly all of the judicial rulings have been praised or condemned by partisans on both sides, depending on whether the outcome favors Bush or Gore.

The U.S. Supreme Court’s ruling is likely to be seen through the same prism.

Republicans are likely to praise the high court for bringing finality to the postelection battle.

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But the Democrats are likely to condemn the court’s staunch Republicans for intervening in a political dispute to halt Gore’s challenge to Bush’s extremely narrow lead in Florida.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

The Majority

Chief Justice William H. Rehnquist

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Justice Sandra Day O’Connor

Justice Antonin Scalia

Justice Anthony M. Kennedy

Justice Clarence Thomas

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The Dissenters

Justice John Paul Stevens

Justice David H. Souter

Justice Ruth Bader Ginsburg

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Justice Stephen G. Breyer

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Times staff writers Nick Anderson, Edwin Chen, James Gerstenzang, Jeffrey Gettleman, Scott Gold, Janet Hook, Richard A. Serrano and Richard Simon contributed to this story.

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More Inside

Supreme Court: The full text of the per curiam opinion in the case of Gore vs. Bush, which divided the justices and may have harmed the panel’s reputation, Section 1A

Congress Reacts: Members from both sides of the aisle see this as the end of Gore’s uphill battle to win Florida, A24

Media Scramble: When the decision came, the major networks were ready to report it once they could figure out what it was, A24

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Absentee Ballot Ruling: Despite irregularities, the evidence ‘does not support a finding of fraud,’ Florida’s justices say, A28


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