- The Washington Times - Thursday, December 7, 2000

Al Gore's divisive, self-absorbed legal war to win in the courtroom what he could not win at the ballot box appears to be coming to an end.
Monday's back-to-back U.S. Supreme Court and Florida Circuit Court rulings dealt Mr. Gore a devastating double blow that most independent observers believe will not be overturned by the state's now-chastened Supreme Court.
"The courts have spoken, and the fat lady has sung, all on the same day," exclaimed independent pollster John Zogby after state Circuit Judge N. Sanders Sauls handed down a tough-as-nails ruling that embraced George W. Bush's entire case against Mr. Gore's demands for a fifth recount in selected, heavily Democratic precincts.
Mr. Gore, refusing to abandon his futile crusade, clung to the slim hope that the Florida Supreme Court would overturn Judge Sauls' ruling, but election-law attorneys said the state's highest court has a history of being "very supportive of trial judges."
"That deference [for decisions made by lower-court trial judges], combined with Sauls' finding of fact, look like very good news for Bush," elections attorney Jan Baran told me.
"Gore's not going to get the vote count unless the Supreme Court reverses Judge Sauls, and that seems unlikely," Baran said.
Especially after the U.S. Supreme Court handed down a ruling that vacated the state Supreme Court's earlier decision that rewrote Florida law by throwing out the deadline for final counts and gave a few heavily Democratic counties more time to produce the number of votes Mr. Gore needed to overtake Mr. Bush's lead.
But the high court here did more than just set the state Supreme Court's decision aside. It gently lectured the seven Florida justices about the dubious constitutionality of their order, letting them know they may have violated Article II of the Constitution and an important federal law that says you can't change the rules in the middle of an election.
The nine justices, in an unsigned order, gave the Florida jurists a second chance to re-examine its pro-Gore ruling. But the language they used in doing that contrary to the neutral spin Mr. Gore's attorneys gave it spoke volumes about what the high court thought of the lower court's ruling.
"It is fundamental that state courts be left free and unfettered by us in interpreting their state Constitution," the court said. However, it added, "it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this court of the validity under the federal constitution of state action."
The justices said they found "considerable uncertainty as to the precise grounds for the decision" extending the deadline to search for votes, and wanted the Florida judges to go back and revisit their opinion.
What worried the justices most was "the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under" Article II, Section 1 of the U.S. Constitution. That section says the state legislatures are in charge of writing laws governing the selection of presidential electors.
In other words, they seem to be suggesting that if you based your ruling for Mr. Gore on the state constitution, that would violate the U.S. Constitution's delegation of such powers to the legislature.
The Supreme Court also said it was "unclear" as to whether the Florida justices all appointed by Democrats had considered the 1887 federal law that says federal election disputes must be settled under laws that were in effect on Election Day.
Translation: "Did you think about this law when you changed the statutory deadline in the middle of the game? There does not seem to be any indication in your ruling that you did, and that is a no-no."
Clearly, the Supreme Court was telling the Florida court that it may have crossed the line on both counts, and that is why Mr. Bush brought the suit in the first place.
It was an ignominious defeat for Mr. Gore and for David Boies, the ultraliberal mastermind of his legal war and the man who led the Justice Department's outrageous antitrust suit against Microsoft.
When the smoke had cleared from Monday's climactic battles, Mr. Gore's strategy was in ruins. The U.S. Supreme Court had thrown out the only significant court victory he had, raising serious questions about its constitutionality. And the Circuit Court found Mr. Gore had not provided any persuasive evidence to support its recount demands, adding that his request for partial, selective hand counts was inherently unfair to the voters in the other 64 counties of Florida.
Hours after the decisions, Mr. Gore began losing Democratic support for his last-ditch appeal to overturn Mr. Bush's certified election. Former Clinton White House chief of staff Leon Panetta suggested Mr. Gore and Mr. Boies were irresponsibly pursuing "a scorched-earth" strategy. "Enough is enough," said Rep. Jim Traficant, Ohio Democrat. Rep. Barney Frank of Massachusetts predicted Mr. Gore would probably lose his appeal "and then it's over."
Mr. Gore had one last card to play, however a desperate Hail Mary pass. It was a case brought by his supporters to have 15,000 absentee ballots thrown out in Republican-heavy Seminole County because, they argued, GOP voting officials added missing voter ID numbers to a large number of the the absentee request forms before mailing them out.
This is the most shameful of all Mr. Gore's postelection maneuvers. After saying over and over again that all the presidential votes should be counted, he has become a party to throwing out the ballots of people who legally and unambiguously voted.

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