For Gore, it’s likely the last
stand
Supreme
Court
holds his
hopes in its
hands
Vice President Al
Gore and his wife,
Tipper, leave Mount
Vernon Baptist Church
after services Sunday
in Arlington, Va.
MSNBC
Dec. 11 — Nine justices, three lawyers,
90 minutes. A hearing Monday before
the U.S. Supreme Court is effectively
Al Gore’s last chance to win a Florida
recount — and the presidency. If the
court sides with George W. Bush,
Gore’s bid for the presidency is all but
over. If it sides with Gore, the
Democrat could push forward and
claim he won Florida, and thus the
Oval Office.
THE LEGAL ISSUE to be argued
Monday at 11 a.m. ET is what to do about the
43,000 so-called undervotes — ballots in
which voting machines read no selection for
president. Like the nation at large, the courts
have also been divided.
If the U.S. Supreme Court sides with
Bush and chooses to overrule the Florida
high court’s Friday ruling, it will effectively
mark the end of the Florida recount fight. If
the justices allow the Florida ruling to stand,
Gore may be able to get a final accounting on
disputed Florida counties and thus make the
case that he won the state’s pivotal 25
electoral votes.
Bush’s lawyers insist that the recount
Gore needs quite simply goes against the way
the electoral system is set up.
“The issue is, is the system appropriate
and proper and constitutional? Or does it
represent a change in the law after the game
has been played?” James Baker, Bush’s point
man, said Sunday.
Indeed, Gore’s lead attorney, David
Boies, said on NBC’s “Meet the Press” that
if the justices rule in Bush’s favor, it would
be “the end of it. ... Their voice is final. They
have the power to decide this.”
Monday’s showdown in Washington
underscores just how compressed the
timeline in the election fight has become. It’s
not clear when or if the Supreme Court will
make a decision about the fate of the Florida
recount, but the first in a series of deadlines
comes just one day later: Federal law grants
the Florida Legislature power to choose a
slate of electors if no result is reached by
Tuesday, and lawmakers are almost certain to
pick a slate loyal to Bush.
Because the actual voting by electors
doesn’t occur until Dec. 18, they could be
chosen after Tuesday, but their validity could
be challenged in Congress.
The only recourse left for Gore should he
lose in the U.S. high court would be to seek
legal closure on the few issues unresolved by
the Florida court system. Boies declined to
predict whether the vice president might
delay a concession until another case seeking
to throw out Florida absentee ballots works
its way through appeal.
“I’m not going to say what’s going to
happen in terms of pending Florida Supreme
Court appeals,” Boies said.
Even if Gore wins the case, the high
court would need to restart the recount
process and have it completed within a day
— or else any Gore claim to victory would
likely remain open to challenge.
In presenting their cases Sunday to the
Supreme Court, both sides relied heavily on
core arguments they have repeatedly used in
both state and federal courts. The Bush team
maintains that the Florida court is meddling
in affairs it has no power to decide — and
thus violated both the U.S. Constitution and
federal law. Gore’s team believes that the
current Florida vote tally is simply inaccurate
and that the only way to keep from “tainting”
the electoral result is to allow the recount.
DEFINING A VOTE
The difference between the two
arguments underscores the core split in
strategy between the two men: Bush seeks
legitimacy in the official Florida vote tallies
that give him a slim win, while Gore hopes to
portray those official results as fundamentally
flawed.
Earlier
Sunday, Baker
said on “Meet the
Press” that “we’re
not afraid to let
every vote be
counted.”
“The issue is,
what is every legal
vote?” Baker
added, echoing the
opinion of U.S.
Supreme Court
Justice Antonin
Scalia, who sided
with the majority
in Saturday’s 5-4
decision to
suspend the
recount pending
Bush’s appeal.
Baker
also claimed the Florida Supreme Court
changed “the rules after the game has been
played,” ordering only a recount of certain
disputed votes and not setting clear
guidelines for a recount.
Boies pointed out that the Gore argument
follows the minority opinion from the U.S.
Supreme Court justices who sought to give
Gore his recount.
The dissenting justices, Boies said,
argued that “if you don’t count the votes, that
is what is most likely to cast a pale of
illegitimacy over a presidency.”
House Minority Leader Dick Gephardt,
D-Mo., said Sunday he expected that Gore
would concede if he lost in the U.S. Supreme
Court. “I believe he will” concede, Gephardt
said on ABC, although Gephardt
spokeswoman Laura Nichols later said he
wasn’t trying to pressure Gore.
INSIDE THE COURTROOM
December 10 —
James Baker explains
some of the Bush
camp concerns on
NBC’s “Meet the
Press.”
Boies will represent the Gore camp in
the case, formally docketed as Bush v. Gore
— not Laurence Tribe, who argued before the
court for Gore last week. A Gore lawyer said
Boies was chosen because he’s worked more
closely than Tribe on the Florida recounts.
Arguing for Bush will be Ted Olson.
Florida Secretary of State Katherine Harris
joined Bush’s appeal, and the justices Sunday
gave her lawyer 10 of the 45 minutes allotted
to the Bush team.
As it did last week when it heard
arguments in the related Bush appeal, the
court will distribute an audiotape of the
hearing immediately afterward to
broadcasters. MSNBC Cable and
MSNBC.com will provide the audio as soon
as it is available Monday. The U.S.
television networks, except Fox, have also
petitioned the court to provide live video
broadcasts.
December 10 — Gore
attorney David Boies
argues on “Meet the
Press” that state laws
allow recounts, even
when they involve just
one group of votes.
Saturday’s U.S. Supreme Court ruling
capped a breathless day of rapid-fire
political and legal maneuvers. It started with
lawyers for Bush urging three courts to stop
the recounts, which Florida’s highest court
ordered Friday. That 4-3 decision overruled
a lower court and ordered a manual recount
of disputed ballots in 64 Florida counties,
ending a string of legal setbacks for Gore.
Still, waiting in the wings was the
Republican-dominated Florida Legislature,
which met Friday on the first day of a special
session in which it could select a slate of
electors supporting Bush, whatever the courts
rule. Both houses scheduled committee
hearings for Monday.
ARGUMENTS IN DETAIL
Among the “unconstitutional flaws” in
the Florida Supreme Court decision with
which the Bush lawyers took issue:
The Florida court’s action conflicts with
Florida state law and the state Legislature
and thus violates federal requirements that
only a state legislature may set the process of
choosing presidential electors. The Florida
justices’ action “created a regime virtually
guaranteed to incite controversy, suspicion
and lack of confidence,” wrote Bush’s
lawyers, who also insisted that the court
violated federal law by trying to set rules for
resolving election disputes after Election
Day.
The Florida court’s method of recounting
votes was “arbitrary, standardless and
subjective,” they argued. Among the Bush
team’s examples: The court took pains to
ensure that the undervotes would be counted
but took no action on the validity of
“overvotes” — ballots on which more than
one candidate’s name was punched.
The guidelines Florida Circuit Judge Terry
Lewis set late Friday for a quick, final
recount were the “unconstitutional fruit” of
the Florida Supreme Court’s ruling.
Therefore, the circuit court was acting based
on a flawed decision, Bush’s lawyers argued.
Bush’s team also chastised the Florida
court for issuing Friday’s ruling without any
mention of the U.S. high court’s last ruling on
the election, which specifically struck down
a previous Florida ruling — essentially
making a case that the Florida justices had
ignored the federal justices.
Watch the latest NBC and
MSNBC reports on the Florida
presidential dispute.
Gore’s lawyers countered in their briefs
that the Florida high court’s decision “does
nothing more than place the voters whose
votes were not tabulated by the machine on
the same footing as those whose votes were
so tabulated. In the end, all voters are treated
equally: ballots that reflect their intent are
counted.”
Other Gore arguments:
Under the same federal law used by Bush’s
side, the Florida high court was within its
rights to rule as it did because the law allows
for “judicial determination” of electoral
disputes; the Florida Supreme Court was
simply clarifying “the meaning of state law”
in its actions, not changing the meaning of the
law, and the court’s actions were “consistent
with state law.”
Although the Florida Legislature can turn to
a state circuit court to resolve election
disputes, as the Bush team argued, the Gore
lawyers claimed there must be a role for
“judicial review” in that process; Bush’s
team claimed only that a circuit court could
weigh in.
If the U.S. justices were to overturn the
state decision, Gore lawyers argued, they
would “run an impermissible risk of tainting
the result of the election in Florida — and
thereby the nation.”
POLL SHOWS MIXED REACTION
Results of an NBC/Harris-Teeter poll
released Monday indicate that a majority of
Americans support the U.S. Supreme Court’s
decision to stop the Florida recount until the
court hears arguments in the case.
The poll was given to 538 people and
has a margin of error of plus-or-minus 4.3
percent.
A total of 287 respondents, or 53
percent, said they approved of the court’s
decision. Fifty-seven percent of respondents
said that they would accept a final decision
by the court not to allow a recount of the
unrecorded ballots.
However, 46 percent said they believed
the Supreme Court is not the proper place to
decide who won the presidential election in
Florida, compared to 44 percent who said it
is the proper place. And 53 percent of
respondents said they believed the court’s
5-4 decision to halt the recounts was based
mostly on politics, compared to 34 percent
who said they believe the decision was based
mostly on the law. |
