A final decision at hand ... maybe

With tomorrow's deadline looming, Supreme Court hears recount case.

Often in a closely fought football game the team holding the ball last wins.

This year, the same may be true of presidential candidates.

Instead of the ball, one key to victory for George W. Bush may be the US Supreme Court's decision to hear his case today, on the eve of the Dec. 12 deadline for Florida to designate its 25 delegates to the Electoral College.

If the high court rules decisively in Mr. Bush's favor later today or Tuesday, it could eliminate the possibility of Vice President Al Gore seeking a resumption of hand recounts of some 43,000 disputed ballots in Florida.

The final buzzer will have sounded. The game will be over.


Florida Justice Major Harding relied on the wisdom of Vince Lombardi in his dissenting opinion issued Friday. "We didn't lose the game," he quoted the football coach as saying. "We just ran out of time."

He wasn't speaking of the vice president's chances of victory, he was referring to the Florida Supreme Court's inability to bring order to the apparent chaos that has characterized Election 2000 in Florida.

There still may be major twists and turns to come in the race for the White House. But the hearing scheduled today at the US Supreme Court marks the best shot yet for Bush to gain a decisive edge.

For Mr. Gore, it could be the equivalent of watching an opponent's 50-yard field goal sail between the uprights with 3 seconds left on the game clock.

Under federal law, if a final determination of a presidential election contest - like Gore's lawsuit challenging Bush's win in Florida - is definitively resolved by Dec. 12, delegates picked for the winning candidate may not be challenged in Congress.

What is unclear is whether a majority of justices at the Supreme Court are prepared to definitively end the election. They may rule in a way that leaves open the possibility of a congressional challenge to electors in January. There are a variety of scenarios in which this is possible, such as if the high court only strikes down part of the Florida Supreme Court ruling, or if it seeks to set standards for a recount.

If the justices take a less-definitive route, even if they rule in Bush's favor, Gore may seek to continue recounting in Florida in hopes of assembling evidence for Congress - and the US public - that he won more votes in Florida than Bush. But time is short.

Many analysts believe that, by voting 5 to 4 to halt the partial recount of ballots in Florida, the justices tipped their hand as to how they might vote on the merits of the case.

Justice Antonin Scalia did little to discourage such speculation in a concurrence issued Saturday with the order to stay the recounts. "The issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success," he writes.

Analysts are divided over what might happen next. "I think there will be no recount, period," says John Baker, a constitutional-law professor at Louisiana State University. "By issuing the stay, there will be no time for a recount."

Mr. Baker says the Supreme Court will likely overturn the Florida Supreme Court ruling, but the justices will decline to end the election fight. "Ultimately, they are going to say any dispute about the Florida election is going to be settled in Congress." Bruce Rogow, a constitutional-law professor at Nova Southeastern University in Fort Lauderdale, Fla., and a lawyer for the Palm Beach County supervisor of elections, believes the justices will end the election with their ruling. "Having taken the case on this expedited basis and having granted the stay, it appears the outcome will be 5-4 and that this really will end everything," he says.

Mr. Rogow says the confrontation between the Florida and US Supreme Courts may have been inevitable. "I think the plan from the Bush side was to try to get to the US Supreme Court, because they felt that was their friendliest venue, and the Gore people were happy in the Supreme Court of Florida. They thought that was their friendliest venue," he says. "It turns out that each one was right."

Rogow adds that in such a closely fought election it is not unusual or improper to see split decisions at the highest courts in Florida and Washington. "There is no single right answer in a situation like this. And the fact that five justices are seeing it differently than four Supreme Court of Florida justices is just the way the law is," he says. "It is probably right that this case gets decided by one vote, since the election almost got decided by one vote."

At issue is whether the Florida Supreme Court overstepped its authority, usurping legislative powers and intruding into areas of federal and constitutional law. In the 4-to-3 decision, the court ordered a statewide manual recount of undervotes - ballots in which voting machines registered no vote for president - to determine whether they contain legal votes. It also ruled that manual-recount tallies of dimpled ballots in Palm Beach and Miami-Dade Counties should be counted as legal votes for Gore.

Lawyers for Bush see the ruling as an example of a court changing the substance of state law after the election in a way that creates a new pool of votes that might alter the final result of the election. Lawyers for Gore counter that the Florida Supreme Court has acted within its powers and that it has merely interpreted the law rather than changed it.

(c) Copyright 2000. The Christian Science Publishing Society

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