It’s up to the high court


Associated Press

Holding nine crucial votes in America’s election saga, U.S. Supreme Court justices quizzed campaign lawyers Monday about a muddle of Florida recount laws and the judicial branch’s power to settle Bush v. Gore, the case that may determine the 43rd president.

"We’ll await the outcome," Texas Gov. George W. Bush said, and the nation joined him in suspense after 90 minutes of historic oral arguments.

No timetable was set for a ruling that could end Democrat Al Gore’s quest for the presidency or throw open the state to recounts, jeopardizing Bush’s officially certified, razor-thin lead. Florida’s 25 electoral votes would put either man in the White House.

In case the court rules against Bush, Florida’s GOP-led Legislature moved closer Monday to naming its own slate of electors loyal to the Texas governor. Separate House and Senate panels recommended the GOP slate after a constitutional scholar told lawmakers "the buck stops here."

The Supreme Court rushed against a deadline todayc for states to select presidential electors. The Electoral College meets Dec. 18, and Congress will count electoral votes Jan. 6.

If left unsettled for much longer, the 2000 presidential election could spill into a GOP-controlled Congress, where House Majority Whip Tom DeLay vowed that Republicans would "stand up and do our constitutional duty."

Chief Justice William Rehnquist opened the session: "We’ll hear argument now in number 00949, George W. Bush and Richard Cheney v. Albert Gore et al."

And off they went.

"Where’s the federal question here?" Justice Anthony Kennedy asked Bush attorney Theodore Olson less than two minutes into arguments over the Gore-sought recounts ordered by the Florida Supreme Court on Friday. In a 5-4 decision on Saturday, the U.S. Supreme Court halted the counting.

Justice David Souter, who voted against the Saturday stay, seemed to ponder the ground rules for a possible resumption of the recount. "Why shouldn’t there be one subjective rule for all counties?" he asked.

Some justices who made up Saturday’s majority seemed skeptical of a recount, under any standard.

Justice Sandra Day O’Connor warned of a "big red flag" in election law that seemingly requires courts to defer to the legislative branch. With Republicans controlling the Florida Legislature and Congress, Bush’s legal team has raised the same issue.

Justice Anthony Kennedy, who along with O’Connor is a frequent high court swing vote and sided with the majority on Saturday, asked pointed questions about standards that county election boards use in Florida to determine voters’ intent on questionable ballots.

The justices pummeled both sides with questions, layering their skepticism evenly in arguments that covered the full landscape of the 34-day dispute. Obscure legal terms mingled with the popular culture’s latest buzzwords.

"Were those dimpled or hanging chads, so to speak?" asked O’Connor at one point.

Some Gore advisers were reviewing various contingencies for him to concede the race or suspend his campaign in the event of an adverse ruling. Democratic running mate Joseph Lieberman said if the court ruled in Bush’s favor, "that’s probably the end of it."

But other Democrats warned that they wouldn’t accept defeat easily; the Rev. Jesse Jackson said a Bush victory would "incite a massive civil rights rebellion."

Kennedy and O’Connor seemed intensely interested in the question of whether there was a federal issue for the justices to decide.

Asked by Justice Stephen Breyer what type of standards should be set for manual recounts, Bush lawyer Olson said the ballot should be punched through. "Indentations are no standards at all," he said.

Souter asked Gore lawyer David Boies to explain how a recount could be conducted under different standards without violating the rights of voters to be considered equally.

"What would you tell them? Under what standard" would the recounts be conducted? he asked Boies.

After a long pause, Boies said. "I think that’s a very hard question."

Throughout the day, the contested election ricocheted among other courts as well:

  • Florida’s top court, in reply to the U.S. Supreme Court, said its ruling to allow some recounts had been based on state law.

  • An appeals court in Atlanta upheld a federal judge’s refusal to throw out 2,400 overseas ballots.

  • Democratic lawyers in Tallahassee asked the Florida Supreme Court to reject thousands of votes for Bush under a lawsuit challenging absentee ballot applications.

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