- The Washington Times - Wednesday, November 29, 2000

Vice President Al Gore's chief lawyer charged at the Supreme Court yesterday that George W. Bush is raising flimsy arguments to become president, but Mr. Bush's lawyers said Friday's constitutional battle could decide the presidency.

"In any event, enforcing the constitutional structure in this case will imbue this election with the finality that the carefully wrought federal system was meant to secure," said Mr. Bush's 50-page brief, filed with the court clerk just before the 4 p.m. deadline.

He asked the Supreme Court to nullify the Nov. 21 Florida Supreme Court order delaying vote certification in the state and "confirm that the secretary of state and the Elections Canvassing Commission have the authority expressly delegated to them by the legislature to certify the results of the election based on returns received by the statutory deadline of November 14."

In an unprecedented step, the court announced it will provide a complete audio-tape recording for broadcast shortly after the hearing ends, plus a printed transcript.

On Monday, Chief Justice William H. Rehnquist denied requests for television and audio broadcasts. The court routinely releases audio tapes at the end of each term, but never has permitted same-day broadcast of a hearing.

The Gore brief, also 50 pages and filed personally by Harvard law professor Laurence H. Tribe at almost the same minute, defends the Florida Supreme Court's decision. The brief described that ruling's 12-day extension of the certification deadline to Nov. 26 to accommodate selective recounts in three overwhelmingly Democratic counties as "garden variety" court action that did not rewrite state laws or violate the U.S. Constitution.

"[Mr. Bush's] claim that the Florida Supreme Court may not interpret state electoral statutes calls into question not only that court's indisputable power of judicial review, but also the important and established interpretation of such statutes by state attorneys general nationwide," the Gore brief said, challenging Mr. Bush's reading of Title 3, Article 5 of the U.S. Code.

Mr. Bush's brief told the justices that reversing the Florida Supreme Court order would "restore the legislatively crafted method for appointing electors in Florida to its status prior to November 7, would allow the completion of the proper selection of presidential electors in Florida according to the plan contemplated by the Constitution, and would aid in bringing legal finality to this election."

"The Florida Supreme Court's decision, which conflicts with both federal statutes and the federal Constitution, will thus continue to affect, and has the theoretical potential to change the outcome of the presidential election in Florida, and thus the nation," Mr. Bush's brief said.

After tomorrow's second round of legal briefs, the justices will have the chance to question lawyers for the vice president and Mr. Bush, as well as Florida Secretary of State Katherine Harris and Florida Attorney General Robert A. Butterworth.

Each side has 45 minutes, with 35 minutes reserved for representatives of the candidates, 10 minutes for Mrs. Harris and 10 minutes for Mr. Butterworth.

A member of the Gore legal team said two new issues of mootness and "harmless error" will be raised in tomorrow's filing, in hopes the justices will simply throw out Mr. Bush's appeal.

"We're not raising it now because if there are results in the contest in the Florida courts that put us up over the top, it's not moot," said the Gore lawyer who asked not to be identified in discussing future strategy.

A case is moot when the matter disputed is no longer meaningful, because of events outside the court.

Mr. Bush's brief yesterday argued that many issues still would be affected by a U.S. Supreme Court ruling, including "some of the recently filed election challenges to the election results" filed by Mr. Gore this week.

One example is the complaint that the Miami-Dade County recount stopped. If the Supreme Court rolled events back to the original deadline of Nov. 14, that action would be meaningless because it had not begun.

Although the briefs were less combative than last week's petition to take the case, the tone was different at the courthouse door where Mr. Tribe termed the issue of rewriting state law "one of the flimsier claims Bush makes."

He accused Mr. Bush of treating elections "as some sort of game" and said the issue his Supreme Court appeal raised "passes the laugh test" only until close examination.

"It's a case about counting ballots, it's a case about fairness," said Mr. Tribe, paraphrasing a brief that he predicted will lead to a high court victory as early as Monday.

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