Supreme Court appears divided during arguments

By LAURIE ASSEO

Associated Press

WASHINGTON – U.S. Supreme Court justices appeared divided during a historic argument today that could decide whether George W. Bush or Al Gore becomes president.

“Where’s the federal question here?” Bush lawyer Theodore Olson was asked by Justice Anthony M. Kennedy. Kennedy voted with the 5-4 majority to hear the case but is considered one of two possible swing votes.

Several justices seemed troubled by the Florida Supreme Court’s order requiring recounts of thousands of votes statewide. “Do you think in the contest phase there must be a uniform standard for counting the ballots?” Kennedy asked.

Justice David H. Souter said, “Why shouldn’t there be one subjective rule for all counties? If there isn’t, why isn’t it an equal protection violation?”

Lawyers for Bush and Gore argued their cases in the solemnity of the Supreme Court, urgently pressing rival claims about the suspended manual recount in Florida and the nation’s overtime presidential election.

“I am keeping my emotions in check,” Bush said in Texas a short while before his attorney, Theodore Olson, stepped before the nine justices to argue the recount should be shut down – and Bush’s certified victory allowed to stand.

Gore was at the vice president’s residence, pinning his hopes on attorney David Boies and his ability to persuade a majority of the court to resume the recount. Three of Gore’s children – Karenna, Kristin and Albert III – were among the spectators given seats to the historic arguments.

The court allotted 90 minutes for the oral arguments, which unfolded only two days after a 5-4 majority voted to stop the recount at least temporarily.

Justice Antonin Scalia, in a concurring opinion, said at the time it “suffices to say … that a majority of the court” believes that Bush had a substantial probability of success on the final ruling.

That meant that Gore faced an uphill struggle as the black-robed justices settled in their seats for the formal arguments. Boies said on Sunday that defeat at the high court could mean the end of the road for the vice president’s 2000 quest for the White House.

The atmosphere inside the courtroom stood in contrast to the noisy scene outside the building – where demonstrators protested beneath the chiseled marble inscription “Equal Justice Under Law.”

Andrew Alexander, 19, of Harrisonburg, Va., dressed as Santa, held up a sign that read, “Ho, ho, ho, Gore’s got to go.” His brother Stephen, 11, came along with his poster: “All I want for Christmas is Bush for president.”

Nearby, a Gore supporter shouting “Who’s afraid of the Florida vote?” stood on the sidewalk with a dark brown mule. About 200 Gore supporters marched with printed signs reading, “This is America. Count every vote.”

The court set no timetable for a ruling, but its decision to set oral arguments on such a quick timetable signaled its understanding of the importance of speed. Bush is the certified winner in Florida, by 537 votes, but the recount ordered by the state Supreme Court last Friday presented Gore with an opportunity to overtake his rival.

Failure to settle the issue by Tuesday would expose the state’s 25 electors to greater risk of challenge. And finally, the state Legislature is poised to name its own slate – loyal to Bush.

Hovering in the background are inevitable questions about the ability of the winner – either Bush or Gore – to claim legitimacy after an election so close and contested.

Montana Gov. Marc Racicot, a Bush backer, dismissed the idea that winning a narrowly divided court decision on the votes of five conservative justices would cost Bush legitimacy as president.

“That’s something that’s bestowed by the American people,” Racicot told CNN.

The Bush campaign is arguing that a recount won’t be fair because Florida counties use varying standards to determine a voter’s intent.

The “crazy-quilt ruling” is a “recipe for electoral chaos,” Bush’s lawyers said in court briefs filed Sunday. “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.”

Attorneys for Gore argued in court papers that the Florida court simply placed “the voters whose votes were not tabulated by the machine on the same footing as those whose votes were so tabulated. In the end, all voters are treated equally: Ballots that reflect their intent are counted.”

If Gore prevails, the hand counting could continue and possibly help him overtake Bush, who leads by fewer than 200 votes. A ruling for the Texas governor would shut down the recounts.

A CNN/USA Today Gallup Poll conducted Sunday found a nearly even split over whether the court should allow the recount to continue – 47 percent for a recount and 49 percent against, with a margin of error of plus or minus 4 percentage points.

The survey of 735 adults also found 72 percent believe the Supreme Court will rule fairly in the case. However, among people who identified themselves as Bush supporters the figure was 87 percent, while among Gore supporters it was 54 percent.

The court again agreed to release a full audiotape of today’s argument for broadcast shortly after its conclusion. But the justices stuck to their long-standing ban on television and still cameras inside the courtroom.

Neither side committed to giving up if the Supreme Court issues an adverse decision, but even Gore’s advisers conceded he has fewer options than Bush beyond the high court.

“If no votes are counted, then I think that’s the end of the road,” said attorney David Boies, who was arguing the case for Gore. But Boies stopped short of saying his client would bow out if the Supreme Court ruled against him, suggesting Gore might await appeals of failed Democratic lawsuits seeking to throw out as many as 25,000 Florida absentee ballots.

The U.S. Supreme Court first heard arguments in the case on Dec. 1. Justices unanimously set aside the Florida court ruling and sent the case back for clarification of why it allowed ballots to be recounted after the Nov. 14 deadline set by the Florida secretary of state.

In response, the Florida Supreme Court issued a 4-3 decision Friday ordering a hand recount of all undervotes statewide. Hours after the tally began Saturday, the U.S. Supreme Court voted 5-4 to grant Bush’s request to halt the recount until the court determines its legality. When the counting stopped Saturday, an unofficial Associated Press survey put Bush’s lead over Gore at 177 votes.

The high court split along philosophical lines.

Chief Justice William H. Rehnquist and Justices Scalia, Sandra Day O’Connor, Anthony M. Kennedy and Clarence Thomas voted to grant review. Scalia wrote that the action suggested most justices believed Bush “has a substantial probability of success.”

Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer opposed halting the recount. Writing for the four, Stevens said the majority “acted unwisely” in stopping the count.

Bush’s lawyers said the state court violated the Constitution and federal law when it ordered the hand recount of ballots. The court changed the rules after the election, allowed votes to be hand-counted by widely varying standards and trounced on the state Legislature’s authority to decide how presidential electors are to be chosen, they contended. They also said the Florida Supreme Court lacked authority to act in the case at all.

Gore’s lawyers said the Florida court did not violate the Constitution or federal law, nor did it create new law that would conflict with standards set by the state Legislature.

Tuesday is the date for choosing presidential electors under a provision of federal law that shields them from challenge in Congress. Members of the Electoral College will cast their votes for president on Dec. 18.