The day after

Attorneys for both sides file briefs with Supreme Court; Gore team's David Boies concedes that the end may be near for the vice president's campaign.

By Salon Staff

Published December 10, 2000 6:29PM (EST)

On the eve of the U.S. Supreme Court's historic second hearing on the disputed 2000 presidential race, lawyers for Vice President Al Gore and Texas Gov. George W. Bush filed 50-page briefs outlining the legal arguments they will make before the high court Monday morning.

In its filing, the Bush camp argued that a Florida Supreme Court ruling Friday ordering that undercounted votes in the state be tabulated and added to the state's certified results represented a "wholesale revision" of Florida law and "overrides numerous legislative choices embodied in the Florida Election Code." Whether the state court was, in fact, effectively writing new law will weigh heavily in the Supreme Court's considerations Monday.

Lawyers for Gore, whose case is to be argued by lead attorney David Boies, countered by arguing that not counting the undervotes will disenfranchise Floridians. "Voters have important rights to have their ballots counted," their brief stated, "and the magnitude of those rights dwarfs any due process claim [that Bush and others] assert here." The Gore team also urged the court to affirm the Florida Supreme Court's 4-3 judgment in favor of a sweeping manual count of undervotes.

What have we learned in the day after the U.S. Supreme Court moved to shut down the recount in Florida? We know that in most counties the recount was going fast -- very fast. The New York Times estimates that the ballots were counted at a rate of more than 1,000 per hour. The eight judges counting at the Leon County Public Library in Tallahassee were already halfway through the 9,000 Miami-Dade County ballots that were in their charge. If the high court hadn't intervened on Saturday, the recount effort might well have been completed before the 2 p.m. EST Sunday deadline set by Judge Terry Lewis.

Less clear is how the completed recounts might have shifted the statewide tallies. Gore senior legal advisor Ron Klain stated Saturday that Gore had picked up 58 votes in 13 counties where counts had either started or been completed. An Associated Press survey cited by the Miami Herald put the figure at a mere 16 additional votes. And a Republican election observer, quoted by the Times, stated that Bush had picked up 42 votes in the Miami-Dade County recount alone. No official tallies have been released. But that's all ancient history in this fast-moving story.

Former Secretary of State James Baker, Bush's man in Florida, started Sunday with an appearance on NBC's "Meet the Press" with Tim Russert. The grill session focused on Saturday's 5-4 Supreme Court ruling halting the hand counts until the court hears Bush's appeal Monday. Russert asked Baker why the Bush campaign had sought the injunction and why the campaign seems to fear the tabulation of undercounted votes.

"We're not afraid to let every vote be counted," Baker said. "The issue is, What is every legal vote?"

Echoing a legal argument by Bush's legal team, Baker said he believes the Florida Supreme Court's decision violates Article 2 of the U.S. Constitution. "We think that the court, by changing the rules after the game is played through judicial interpretation of Florida law, has violated elements" of federal law.

Baker cautioned that counting undervotes would be opening an electoral Pandora's box. "There are undervotes in every state of the union in a national election," he said, adding that there were close to 1.4 million nonvotes and undervotes nationwide. And he asserted that the "Florida [Supreme] Court is using the contest provisions of Florida law to establish an entirely new manual recount system."

Despite some highly suggestive writing on the wall in the U.S. Supreme Court's Saturday ruling, Baker refused to speculate on how the high court would ultimately rule. In a hotly debated concurring opinion, Justice Antonin Scalia wrote that the "petitioner has a substantial probability of success."

"It absolutely is not a foregone conclusion" that the court will rule in Bush's favor, Baker said. "We're aware of the ups and downs this odyssey has taken over the course of the past 33 days."

One of the day's rare moments of humor came when Russert played for Baker a clip from a Nov. 21, 1999, interview with Bush. Russert asked the Texas governor which Supreme Court justice he most respected. "Well, that's -- Anthony Scalia is one," he responded. The clip was juxtaposed against an April 10 clip of Gore dissing Bush's fave justice as the "most far-right member of the court."

The Gore camp, meanwhile, dispatched attorney Boies to represent its case on the Sunday talk shows. Boies' appearance came with an announcement on CNN by former Secretary of State Warren Christopher, who is overseeing the recount efforts for Gore in Florida, that Boies would represent the camp in oral arguments before the U.S. Supreme Court.

On the talkies, Boies had his own spin on the Supreme Court's ruling: "I think the dissent had it right when [it] said that if you don't count the votes, that is what is most likely to cast a pale of illegitimacy over a presidency. The American people have a right to know what votes were cast and for whom," Boies said in rebuttal to Baker's arguments. (Note: As might seem fitting for the winner of the day's legal sweepstakes, Baker appeared before Boies on just about every talk show in which they both appeared. Doesn't it seem peculiar that these guys never duke it out in hand-to-hand combat on these shows?) "I don't think the American people like to be told you can't be trusted to know these particular facts," Boies said.

Speaking on ABC's "This Week," Boies told host Sam Donaldson: "I don't think it's all over, at least until Monday." Of the possible outcome of the case he said, "Obviously the Supreme Court, as the highest court in the land, has the power to stop the counting if it decides to do so. Certainly the fact that you had five justices rule in favor of interrupting the counting indicates that at least five justices believe that Governor Bush's arguments have a strong probability of success." Indeed, the Gore camp faces an uphill battle Monday.

Boies also expressed dismay at the Republicans' legal efforts to stop the hand counts. "The Republicans have thrown up one obstacle after another to counting these votes. We found out yesterday that if they'd just let the votes be counted, they could be counted in a matter of hours."

In a separate appearance on Fox News, Boies conceded that the end may be near for the Gore campaign. "If no votes are counted, then I think that's the end of the road," he said.

A major subtheme of the talkies was the earsplitting volume of partisan attacks that have been directed at both the U.S. Supreme Court and the Florida Supreme Court this week, as spinners from both parties attempt to politicize the election crisis.

On Friday, House Majority Whip Tom DeLay, R-Texas, accused the Florida justices of committing "judicial aggression." House Speaker Dennis Hastert, R-Ill., dismissed them as "a bunch of partisan hacks." Former Republican vice presidential candidate Jack Kemp called the decision a "coup d'état." And then, of course, there's the vice president, who ridiculed Scalia as a right-winger in April. Responding to a question about the war of words on "Meet the Press," a highly defensive Baker said, "You haven't heard those comments from me. You haven't heard comments like that ... My criticism has rested on legal grounds." But as long as the race remains undecided, there's little hope for comity in Washington -- not in Congress and not on television.

The Florida Supreme Court also had words for the public Sunday afternoon, but not the kind of defensive language one might have expected from the beleaguered court. Spokesman Craig Waters appeared before reporters to say that court papers in Gore vs. Harris, including the undercounted ballots from Miami-Dade and Palm Beach counties, were returned to the court Saturday evening. These papers, excluding the ballots, were then sent by air to Washington Sunday at the Supreme Court's request.

The U.S. Supreme Court will hear oral arguments at 11 a.m. EST Monday, and audiotapes of the hearing will be released immediately after it concludes. Spectators were already camping out on Maryland Avenue Sunday afternoon, near the high court's imposing marble edifice, for seats at the historic hearing.

Both houses of the Florida Legislature also meet Monday to continue a special session to select a slate of electors, likely to vote for Bush, and thus ensure inclusion of Florida's vote in the Electoral College.

Salon Staff

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