Gore Camp Sees Pluses, Minuses in Court Action

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.

The senior Bush attorney said that if the U.S. Supreme Court upholds Harris’ right to certify the race as of Nov. 18, Republicans could argue that it would be inappropriate to reinstate Broward’s hand-counted results because they failed to meet the deadline she originally set. But the attorney acknowledged that the state Supreme Court well could feel differently:

“I think [the Gore camp] would have some problems doing that, because Broward didn’t get done within the original statutory time frame,” the attorney said. “But is there any restraint on what the state Supreme Court can do? The obvious answer is no.”

Although the legal effect of a negative U.S. Supreme Court decision might not be insurmountable, it would present other serious dangers, Gore advisors acknowledge.

The most immediate problem would be time. Gore is already racing against the Dec. 12 deadline under which states must select their electoral college representatives if those electors are to be guaranteed immunity from challenge in Congress.

Gore on Tuesday asked the Florida court hearing his contest to adopt an extremely expedited schedule for concluding the case; amending his complaint to request consideration of the Broward County votes could lengthen and complicate the proceedings, his advisors acknowledge.

Moreover, Democratic attorneys fear that if the U.S. Supreme Court rebukes its counterpart in the state, the Florida high court might be less likely to provoke another confrontation by upholding Gore’s contest--and in effect reopening the election.

“It might well be that the principles announced by the Supreme Court in such an opinion . . . would then be influential in the Florida courts as they proceed [and] would result in a much steeper and uphill battle,” Tribe said.

Some Gore Backers Growing Restive

Above all, a court ruling against Gore--following Harris’ official certification of Bush as the Florida winner--could coalesce a public sense that the vice president is fighting on past a reasonable point. Although Democratic lawmakers staunchly have supported Gore so far, his aides acknowledge that some are growing restive as polls show more public impatience over the continuing fight.

Conversely, if the U.S. Supreme Court upholds the state ruling, Gore aides hope it might both embolden the state courts to accept the vice president’s contest and buy him more time with the public and Democratic officials.

“We are in good shape politically with the Democrats right now,” acknowledged another senior Gore aide. “But it is an hour-by-hour almost thing. We need some victories.”

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Tuesday in Court

THE ISSUES

“Butterfly Ballots” (Palm Beach County)

Democrats charge the county’s “butterfly ballots” were confusing and caused some voters to mistakenly cast votes for Reform Party candidate Pat Buchanan instead of Democrat Al Gore.

WHAT THEY WANT

Democrats asked the Florida Supreme Court to overrule the Circuit Court judge. The judge had said that the Florida Constitution did not give him the authority to order a new election.

WHAT’S NEXT

Attorneys submitted written arguments Tuesday on why the Florida Supreme Court should or should not take the case. The justices will hear those arguments today. It’s unclear when they will decide whether to hear the full case.

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THE ISSUES

Absentee Ballots (Seminole County)

A Democratic Orlando-area attorney sued county election officials, saying they improperly allowed Republican Party operatives to correct more than 4,700 incomplete Republican applications for absentee ballots.

WHAT THEY WANT

The suit asks that 15,000 absentee ballots in Seminole County be tossed out. If those ballots were eliminated, George W. Bush’s statewide lead in Florida would disappear.

WHAT’S NEXT

After the case was transferred from Seminole County, a Tallahassee judge Tuesday refused to consolidate the case with Gore’s election contest now before the state’s Supreme Court. A trial is set for Dec. 6.

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THE ISSUES

Stopped Recount

(Miami-Dade County)

Gore attorneys argue that Miami-Dade County election officials improperly halted a hand recount of votes. Bush lawyers say the ballots have already been counted and it is time to wrap up the election.

WHAT THEY WANT

Gore attorneys want Leon County Circuit Judge N. Sanders Sauls to order Miami-Dade to complete the hand recount and compel the secretary of state to accept the results. Gore’s lawyers also asked Tuesday for a court-appointed master to oversee the hand recounts in Miami-Dade and Palm Beach.

WHAT’S NEXT

Both the Gore and Bush sides on Tuesday proposed timetables for dealing with these and other issues. In a Tuesday evening proceeding, Sauls set a hearing on several issues for Saturday.

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THE ISSUES

Incomplete Recount

(Palm Beach County)

Gore attorneys argue that the Florida secretary of state should accept results of hand recounts in Palm Beach County. The secretary refused to accept the results, saying the county failed to meet a Sunday deadline to complete them.

WHAT THEY WANT

Gore attorneys ask Sauls to compel the secretary of state to accept hand-count results from Palm Beach.

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WHAT’S NEXT

Next hearing on Saturday.

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THE ISSUES

Recount Tally

(Nassau County)

County officials threw out results of a mechanical recount, saying the results were somehow flawed, and submitted election night results to the state instead.

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WHAT THEY WANT

Gore attorneys ask Sauls to bar the state from certifying Nassau’s votes until the conclusion of court challenges to the election results. Gore attorneys argue the results of the mechanical recount should be submitted to the state.

WHAT’S NEXT

Next hearing on Saturday.

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THE ISSUES

Federal Appeal

(U.S. Supreme Court)

Republicans argue that the Florida Supreme Court overstepped its authority when it ordered the secretary of state to accept results from hand recounts past a state-mandated deadline.

WHAT THEY WANT

Bush attorneys ask the U.S. Supreme Court to bring “legal finality” to the election by overturning the Florida high court’s decision and ending any further recounts. Gore’s team says the issue does not belong in federal court.

WHAT’S NEXT

Attorneys for both Bush and Gore filed legal briefs Tuesday with the U.S. Supreme Court, which is scheduled to hear arguments on the case Friday. In Atlanta, the Florida Democratic Party filed a motion Tuesday asking the U.S. 11th Circuit Court of Appeals to dismiss a Bush appeal seeking to disqualify manual recounts in Florida. Bush’s team Monday had appealed a Miami federal judge’s ruling denying a preliminary halt to manual recounts.