- The Washington Times - Thursday, November 30, 2000

Florida's official certification on Sunday that George W. Bush has won its presidential vote count means he is probably just one U.S. Supreme Court ruling away from ending Al Gore's courtroom war to overturn the election.

The end of Mr. Gore's ill-fated challenges the first time in U.S. history that a presidential candidate has sought to change the outcome of an election in court was much closer than he or his advisers were willing to acknowledge.

Right after Florida Secretary of State Katherine Harris duly certified the fourth recount Sunday night showing Mr. Bush to be the winner, Gov. Jeb Bush quietly signed the Certificate of Ascertainment and sent the official papers, certifying the 25 electors pledged to his brother, off to the U.S. Archivist here. The Florida governor's official action was given little notice in the news media, but it further sealed the 271 electoral majority his brother now has, and thus his constitutional claim to the presidency.

Florida's formal certification of the 25 electors who will vote for Mr. Bush when the Electoral College meets to elect the next president on Dec. 18 gives his election added weight and legitimacy.

Now the burden of proof shifts to Mr. Gore in the state courts to show that the multiple counts, recounts and hand counts he has demanded and has won were still not enough to decide the rightful winner of the election.

If there is any election authority left in Florida that Mr. Gore is not suing, I'm not aware of it.

Mr. Gore and his lawyers have filed suit against the Democratic-dominated Miami-Dade County canvassing board because it refused to recount rejected, spoiled ballots as he demanded. He is suing the Palm Beach County's Democratic board because they used a more stringent standard to count dimpled ballots than the count-them-all standard he demanded. He is appealing a ruling supporting Palm Beach's "butterfly ballot," even though the circuit judge there threw his case out of court.

In his televised speech Monday night, Mr. Gore said he is only doing this to protect everyone's right to vote and to have all the votes counted. But one of his allies sent out a memo that coached vote-counters on how to throw out military overseas absentee ballots on mere technicalities. Hundreds of military ballots may have been thrown out, but Mr. Gore is not lifting a finger to get them reinstated, as Mr. Bush is requesting.

In fact, one of his suits this week in Seminole County seeks to throw out more than 5,000 duly cast and counted overseas absentee military ballots, enough to overturn the election. What about their right to vote?

Will he get any satisfaction in these court suits? Perhaps, but the bulk of them are not going anywhere not while the U.S. Supreme Court is about hear a case that could lead to its striking down the Florida Supreme Court's distortion of the state's elections laws.

The high court is asking a critical question on which the legality of the hand counts and the thrust of Mr. Gore's entire case rests: Did the state Supreme Court overstep its authority when it took control of the state elections process that the Constitution and federal law places solely in the hands of the state's executive and legislative branches?

Article II, Section 1 of the Constitution says each state will choose its electors "in such manner as the legislature thereof may direct." It does not say "in such manner as the courts thereof may direct."

At the same time, federal law provides that each state's electors will be chosen in accordance with "laws enacted prior to" Election Day. It does not say the electors can be chosen under court rulings and changes in the law made after the election.

Mr. Bush and his attorneys maintain that the Florida Supreme Court overreached in its ruling, unconstitutionally rewrote the election rules and state law by extending the deadline to comply with Mr. Gore's wishes, and usurped lawmaking powers that can only be exercised by the legislature.

And to make absolutely sure everyone understands the reasons the U.S. Supreme Court agreed to hear Mr. Bush's case and the pivotal issue at stake here it asked both sides to address one central question in their presentations: "What would be the consequences of this court's finding that the decision of the Supreme Court of Florida" was unconstitutional?

The consensus from the pundit class seems to be that the high court's stake in this dispute will turn out to be smaller than what happens in the lower-court cases now being fought out in Florida.

But if the Supreme Court decides on the merits of Mr. Bush's complaint, it could very well rule that Florida's high court exceeded its authority, that it unconstitutionally overturned state law governing a federal election, and that it acted arbitrarily in setting a new deadline.

Thus, it could rule that the original deadline for legal contests to begin (within 10 days of the state's statutory Nov. 14 vote-certification date) should stand.

If so, that would send a powerful message to the lower courts and to Mr. Gore's army of lawyers that this unprecedented legal insurgency against Mr. Bush's certified election must end.

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