Washington The legal teams representing Vice President Al Gore and Texas Gov. George W. Bush laid out their cases Sunday to a deeply divided Supreme Court, where either of two justices who usually hold the middle ground in the most controversial cases could determine the identity of the next president of the United States.
Legal scholars generally agreed that heading into today's oral arguments before the high court, it was Gore's lawyers who faced the far heavier burden. They said that is because the high court's 5-4 ruling Saturday ordering at least a temporary halt to the manual recounting of thousands of votes in Florida suggested that a majority of the justices is poised to rule the same way on the merits of the case.
But as so often has been the case in recent years, the outcome could come down to two last votes those of Justices Sandra Day O'Connor and Anthony M. Kennedy.
As both sides submitted briefs written overnight and hurriedly prepared for oral argument this morning in one of the most important cases to come before the high court, constitutional scholars and lawyers for both sides said that Gore's only remaining hope for winning the presidency most likely hinged on persuading one of those two justices to back off from a position they endorsed as part of the five-justice majority.
O'Connor and Kennedy, both appointed by President Reagan, have emerged as the court's fulcrum. They essentially hold the balance of power on the deeply splintered bench and determine the outcome of many cases by tipping either to the liberal side (composed of Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer) or, as occurs more often, siding with their fellow conservatives (Chief Justice William H. Rehnquist, and Justices Antonin Scalia and Clarence Thomas.)
Their critical role in this case emerged clearly when the court heard oral arguments, 10 days ago, in its first foray into the presidential election dispute. Both justices questioned Gore's and Bush's lawyers skeptically, suggesting at various times that they could go either way in that first case.
"They are clearly the pivotal votes, but the fact that they added their votes to stop the (vote) counting was telling," said Susan Low Bloch, a constitutional law professor at Georgetown University Law School. "It's not inconceivable that one of them will rule differently on the merits, but I think it's highly unlikely."
In the briefs they submitted Sunday, the teams for Gore and Bush outlined three legal and constitutional grounds on which this potentially climactic court battle to decide the presidency will be fought.
At issue is the legitimacy of a ruling by the Florida Supreme Court, which voted 4 to 3 on Friday to order the manual recounting of an estimated 43,000 ballots across Florida. Gore is seeking their recount in the hope of overtaking Bush's slim lead and snatching the state's crucial 25 electoral votes from his Republican rival.
Bush's lawyers argued that the Florida Supreme Court's "sweeping and novel procedures for recounting selected Florida ballots" violated the U.S. Constitution, federal law and the equal protection and due process clauses of the 14th Amendment to the Constitution.
"This case is the quintessential illustration of what will inevitably occur in a close election where the rules for tabulating ballots and resolving controversies are thrown aside after the election and replaced with judicially created ad hoc and post hoc remedies without regard to uniformity, objectivity or finality," Bush's lawyers wrote. "The Florida Supreme Court has not only violated the Constitution and federal law, it has created a regime virtually guaranteed to incite controversy, suspicion and lack of confidence not only in the process but in the result that such a process would produce."
Gore's lawyers argued that nothing in the Constitution or federal law precluded the Florida Supreme Court from "interpreting, applying and enforcing" election laws passed by the Florida Legislature. They also warned the U.S. Supreme Court that its intervention in the case risked "tainting the result of the election in Florida and thereby the nation."
"There can be little doubt that a count of the still uncounted votes, as the Florida Supreme Court ordered in this case, will eventually occur," Gore's lawyers wrote. "The only question is whether these votes will be counted before the Electoral College meets to select the next president, or whether this court will instead relegate them to be counted only by scholars and researchers."
In addition to arguing that the Florida Supreme Court unlawfully usurped the authority of the state Legislature and local election canvassing boards when it ordered the recounts, Bush's lawyers contended that the recount process the state court imposed "is arbitrary, standardless and subjective." They said it will mean that "voters who cast identical ballots in different counties will likely have their ballots counted differently."
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"The Florida Supreme Court's new election procedures are retroactive and anything but clear and consistent," Bush's lawyers added. "In fact, they substantially deviate from practices established before Election Day. Changing the legal status of ballots after the election on the basis of selective, subjective, standardless and shifting methods of manual recounting is fundamentally unfair."
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Gore's lawyers replied in their brief that the Florida Supreme Court had not ordered a "selective recount" of ballots, but a consistent statewide review of all uncounted ballots in counties that have not already completed a manual recount. "Virtually every Florida election contest case involves a small fraction of the votes cast in the contested election," they said.
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"In the end," Gore's lawyers added, "(Bush's) argument amounts to a charge that the system of manual recounts, expressly authorized by Florida statute and previously used in innumerable instances over the years by Florida (and states throughout the country) is unconstitutional on its face. Such an ambitious and far-reaching claim has no legal support whatsoever."
Gore's legal advisers believe that their core argument coincides with the very principle to which both O'Connor and Kennedy have fervently adhered: state's rights. But they also believe that state's rights is so ingrained in the U.S. Supreme Court that it could have an impact on all the justices.
To emphasize their point, Gore and the legal team selected David Boies, rather than Harvard Law School professor Laurence Tribe, to deliver the arguments before the court. Tribe argued for Gore the first time the tangled presidential election reached the nation's highest court, but Boies has led Gore's trial team handling the Florida litigation and has been immersed in the state laws and court rulings that Gore wants to emphasize.
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The first time the presidential election battle reached the U.S. Supreme Court, the justices were able to rule unanimously. Their unsigned order set aside a Florida Supreme Court ruling mandating manual recounts in some counties and asked for clarification of the grounds for that state court decision.
Michael W. McConnell, a professor of constitutional law at the University of Utah College of Law, said there was still a faint chance the U.S. Supreme Court could reach a unanimous decision in this case that would represent a partial victory for both sides, but would probably be better news for Gore than for Bush.
He said this would involve overturning the Florida Supreme Court ruling as a violation of the equal protection clause because of the lack of a single standard for recounting votes but also ordering a statewide recount with a single standard imposed by the high court.
"That would enable the Supreme Court to get out of this without any great loss to its reputation," McConnell said. "They have to be worried that a 5-4 decision along party lines makes them look like one more political institution."