- The Washington Times - Monday, December 11, 2000

A divided Supreme Court convenes at 11 this morning to hear lawyers for George W. Bush and Al Gore urge victory for their man in the landmark lawsuit that likely will decide which one is inaugurated 43rd president of the United States.
Lawyer David Boies, who will argue the Gore case in place of Laurence H. Tribe, said defeat at the high court would be "the end of the road."
The justices will hold an immediate conference after the 90-minute arguments end and may decide the case as soon as tonight, but likely no later than tomorrow the first deadline in the electoral timeline that allows states to immunize elector slates against challenge in Congress by ending all election disputes.
Both sides filed 50-page legal briefs on the merits of the case, delivered right at yesterday's 4 p.m. deadline. Each revives now-familiar legal and constitutional arguments, along with soaring political rhetoric that matches the stakes of the case.
Mr. Bush's legal team told the justices the 4-3 Florida decision flouted high-court orders and asked that this time the U.S. Supreme Court reverse the lower court outright instead of sending its order back to be fixed, as it did once before.
"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," said the brief signed by Bush counsel of record Theodore B. Olson.
"Such intervention would run an impermissible risk of tainting the result of the election in Florida and thereby the nation," the Gore team responded, calling for the court to rethink Saturday's stay order and resume the recount of so-called undervote ballots.
"They must be examined. This is basic, essential, to our democracy, and to all that gives it legitimacy," said the vice president's brief.
Mr. Olson will have 35 minutes to make his case, followed for 10 minutes by Joseph P. Klock Jr. of Miami, representing Florida Secretary of State Katherine Harris. Mr. Boies then gets 45 minutes to respond.
As was the case Dec. 1, the Supreme Court again will release an audiotape of the complete argument shortly after it is complete and post a printed transcript on the court's Web site located at (www.supremecourtus.gov) where all legal briefs in the case already were to be posted.
Without explanation, the vice president made a key last-minute quarterback substitution, sending in Mr. Boies, the private litigator used by the Justice Department in the Microsoft antitrust case who has argued only once before at the high court. He replaces counsel of record Mr. Tribe, a Harvard law professor who is a familiar figure to the justices and a near-legend at the Supreme Court who has won 19 of the 30 cases he has argued.
"It's one of those choices you have to make, and this time the vice president made a considered decision," said former Secretary of State Warren Christopher, who has headed the Gore recount team in Florida.
"This has been David Boies' case from the very beginning," said Mr. Christopher, praising Mr. Tribe "as very much a member of the team" who worked on the briefs filed yesterday.
Mr. Christopher, who reminisced on his own stint as a Supreme court clerk 50 years ago, said a decision for Mr. Bush would weaken the court's legacy.
"I have a real hope that on more mature consideration the United States Supreme Court will decide the count should go forward," he said. "Looking down the road to history they will be seen as not strengthening the court but weakening it by stopping the vote count."
At the Dec. 1 hearing on the same issues, Justice Stephen G. Breyer derided Mr. Bush's claims as speculation not yet ripe for decision.
The now overripe case produced briefs from Mr. Bush and Mr. Gore, and a score of amicus filings taking sides. Virtually all noted that time is running out before electors cast their ballots a week from today in state capitals. That sets the stage for a joint session of Congress to perform on Jan. 5 or 6 the first count in 40 years that is not totally ceremonial.
The extraordinary appeal in a case now called Bush vs. Gore will be heard in a ceremonial courtroom crowded with people who spent the night on a court sidewalk.
The appeal will be argued against the background of public criticism triggered by bitter comments Saturday between two justices that indicated a 5-4 tilt toward Mr. Bush.
"It suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success," Justice Antonin Scalia wrote in an unusual opinion concurring with the grant of a stay that stopped the recounts in midtally.
Justice Scalia was reacting to a dissent by Justice John Paul Stevens who said Mr. Bush would suffer no irreparable harm if the recount were finished, the standard that must be met in applying to stay a court order.
"Counting every legally cast vote cannot constitute irreparable harm," Justice Stevens wrote in a dissent joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
"One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are … legally cast votes," Justice Scalia snapped. "Count first and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires."
That view was reflected in Bush briefs filed yesterday that repeatedly charged that the four-member majority in the Florida court continually flouted the Constitution's Article II and failed to abide by the Supreme Court's orders in Friday's decision, which it said didn't even mention the Supreme Court decision vacating its Nov. 21 ruling.
"The decision … acknowledges but fails to adhere to Article II, Section 1, clause 2 of the federal Constitution… . The court's newly devised scheme for re-tabulating votes is plainly arbitrary, capricious, unequal, and standardless."
While the Florida Supreme Court is entirely the product of appointments by Democratic governors, the dissent that appears to have been a road map for the Supreme Court decision to hear the case was written by one of those Democratic appointees, Chief Justice Charles T. Wells.
And the Bush brief pointed out that adding to Mr. Gore's total 215 votes from a late count in Palm Beach County and 168 from an incomplete count in Miami-Dade County "openly relied on manual recounts that had occurred only because of that opinion."
"Just four days later, without a single reference to this court's December 4 decision, the majority of the Florida Supreme Court announced sweeping and novel procedures for recounting selected Florida ballots to determine anew the winner of the November 7 presidential election in Florida," Mr. Bush's written brief said.
"The new set of manual recount procedures concocted by the Florida Supreme Court is arbitrary, standardless, and subjective, and will necessarily vary in application, both across different counties and within individual counties, in violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment," said the Bush brief.
The Gore brief on the merits contradicted that conclusion, saying the Florida court acted in accord with the federal law governing appointment of presidential electors.
"Petitioners err in asserting that the Florida Supreme Court's decision makes new law in numerous respects," Mr. Gore's brief said, arguing that its reliance on voter intent sets a valid standard for counting statewide.
"The 'voter intent' standard is the same throughout Florida, and the circuit court issued detailed guidelines to ensure that the manual counts proceeded in a uniform fashion," they said.
Many of the Gore arguments departed from legal or constitutional standards, arguing to the justices as they have to the public about risks that historians would obtain Florida ballots under the state's "sunshine law" and interpret them in a way that contradicts final vote totals. In their view that would undermine Mr. Bush's claim on the presidency for all time.
"This case raises the most fundamental questions about the legitimacy of political power in our democracy," they said.

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