- The Washington Times - Tuesday, November 28, 2000

Florida's Legislature yesterday asked the U.S. Supreme Court to dismiss Texas Gov. George W. Bush's appeal and let the state Senate and House decide the issues as the U.S. Constitution directs.

"The Constitution grants plenary authority to the state legislatures to appoint their presidential electors in any manner they direct. The Legislature itself, and not the courts, is the arbiter of when a failure to make such a choice has occurred," said a 15-page friend of the court brief filed by the state's newly organized lawmakers.

The Legislature selected lawyer Charles Fried, of Cambridge, Mass., to argue that position at Friday's hearing. In a related development, Florida's Secretary of State Katherine Harris and Attorney General Robert A. Butterworth each asked the court for time to argue their divergent positions.

That extraordinary session may unravel one complex snarl in Florida's presidential vote count, but its issues seemed too narrow to deny Florida courts more chances to reverse the slim victory that promised to make Mr. Bush president-elect when the Electoral College meets Dec. 18.

Vice President Al Gore took the first steps yesterday toward opening those legal floodgates, sending lawyers into Leon County Circuit Court in Tallahassee to "contest" Sunday night's certification of Mr. Bush's victory and to re-fight the recount battles of Palm Beach and Miami-Dade counties under different rules applied after a vote is certified.

In the U.S. Supreme Court case, lawyers for both candidates must deliver written arguments by 4 p.m. today.

The legislators' motion called on the justices to rule the issues "not justiciable" and send the case back to Florida in a way that would clear the lawmakers to act under the Constitution's Article II, Section 1.

Even if the Supreme Court must defer to state courts, the brief argued, the justices should rule the legislature is not bound by those same rules.

If state courts cannot fix what the brief calls "those deviations" by Dec. 12, under rules that existed before the election, "then it will be necessary for the Florida Legislature to exercise its authority to appoint electors to assure Florida is represented in the Electoral College."

Today also is the deadline for filing all legal papers before the 11th U.S. Circuit Court of Appeals in Atlanta.

That court's 12 judges are pondering a federal court's jurisdiction to oversee hand recounts, and will decide if selecting only Democratic strongholds or using different counting rules in different counties violates the U.S. Constitution guarantees of equal protection or due process.

The U.S. Supreme Court likely will be asked to review whatever the 11th Circuit decides, but is not apt to second-guess Florida courts on what the state law permits or requires.

The case it agreed to hear was framed not as an appeal of a state-law interpretation but as whether the Florida Supreme Court order violates procedures for choosing presidential electors set by federal law and the Constitution.

Dec. 12 is the federal deadline to resolve all challenges to appointment of presidential electors, who then meet Dec. 18 at each state capital to cast votes for transmission to Congress to be counted on Jan. 6.

A high court ruling that the state Supreme Court violated federal law by extending the vote-count deadline 12 days, setting the clock back to the original Nov. 14 deadline, would pose a major public-relations setback for Mr. Gore.

But even such a defeat would not bar him legally from going to court to "contest" the certified results on the basis of anything that occurred before that date, which could include virtually all the grounds on which Mr. Gore has been protesting the procedures.

While a contest may require proof the result was changed for reasons including "misconduct, fraud, or corruption," or bribery of election officials, Mr. Gore yesterday, in his new state case before Leon County Circuit Judge N. Saunders Saul, invoked two other provisions: tallying illegal votes and failing to count legal ones.

Those questions hinge on thousands of so-called undervotes, in which ballots were not punched clearly enough to be counted by machine, despite dimples, dents, hanging or swinging chads or other signs used to divine voter intent.

Mr. Gore's new state contest insists that granting his challenges to ballot problems that occurred on Nov. 7 will make him the winner of Florida's 25 electoral votes, and thereby the presidency.

Mr. Gore was anything but apologetic for stretching out the Florida election with court skirmishes, and defended his tactics in a telephone press conference with Senate Minority Leader Tom Daschle of South Dakota and House Minority Leader Richard A. Gephardt of Missouri, both of whom had joined other political observers in Tallahassee.

"You go to court and say, 'Look, here's the situation. Take a look at it and do the right thing,' " Mr. Gore said in asserting the legal goal to see that "every vote that is legally cast is actually counted, according to the law, the laws of America including the laws of Florida."

While Mr. Bush held an official lead of 537 votes in Florida, Mr. Daschle exuded confidence that number would turn around, if by the slimmest of margins, if the Gore challenges were granted.

"We'd actually be ahead by nine votes," Mr. Daschle said.

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