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The legal road map: What's going on in courts from Tallahassee to Washington

( -- The past three weeks have been nothing less than a field day for the nation's lawyers, most of whom seem to be stocking up on SPF 15 and subletting condos down in Florida. But what about the rest of us? The presidential morass has reached a point where it's not only trying our patience but also testing our capacity for abstract legal thought. And with that very conundrum in mind, has produced this handy primer, explaining the legal paths from here on out.

Should Al Gore have accepted Sundays certification of the Florida vote?

Election Q&A

First, how the heck did we get here?

One week ago, the Florida Supreme Court ruled that the recounts were to continue, and the results were to be included in the final state tally. The Bush legal team immediately filed an appeal to the United States Supreme Court, which agreed to hear opening arguments from both campaigns this Friday.

Many legal analysts snickered at the Bush team's attempt to push the case toward the Supreme Court, pointing out there was little in the GOP challenge to recommend it to a federal court. The Justices surprised a lot of folks on November 24 when they agreed to hear Bush's case. One of those was Barbara Perry, a professor of government at Sweet Briar College who specializes in the study of the United States Supreme Court.

By accepting the case at all, says Perry, the Court has indicated the possibility of a preexisting majority opinion. "Usually you need four Justices to agree to take a case, not a majority. But often, Justices won't agree to be part of the four unless they see a relatively easy fifth vote."

That suggests that whatever the Court does, it won't be wildly contentious. Five of them probably see a path through the thicket.

The options for SCOTUS action are varied, according to Perry.

One outcome could send the case right back out the door. "The Court could decide the Bush appeal is moot," says Perry. "The Court is always concerned about overstepping its bounds, and the Justices could decide that in the period since they agreed to hear the case, the facts have changed such that the case is no longer alive." In other words, the Justices could look at Sunday's certification as evidence their assistance is no longer needed. And while other legal experts might disagree, Perry doesn't think this scenario is very likely, particularly because the Justices were apprised of the Florida certification deadline before they took the case in the first place.

A second possible outcome has the Court finding for Bush, and ruling that the Florida court overstepped its bounds by insisting on a recount and extended the legislature's deadline for results. This is what the Bush team was hoping for when they first introduced their appeal: A reprimand to the Florida Supreme Court and a reversal of the recount ruling. In order for the Court to find for Bush, they must accept the GOP premise that Florida's high court Justices violated federal election statutes by usurping the legislature's right to determine the state's slate of electors. Sure, it's a roundabout argument, but it's got roots in federal law -- the most important requirement for any case with aspirations to appear before SCOTUS. If the Court does rule for Bush, the recount numbers will be rendered invalid, and the Texas governor will be back to his pre-recount lead of 900-plus votes, in which case nothing really changes.

And then there's the vague possibility the case will never see the inside of the nation's greatest courthouse at all. The Bush team could always drop the case, and just go along with the certified recount numbers. Unlikely, yes, but it could happen.

First, the butterfly ballot appeal. Voters in Palm Beach county were famously confused by a butterfly ballot. Plaintiffs (i.e., Gore) claim that the ballot (which placed candidates' names on both sides of the ballot's punch holes) violates state election law, which requires that all candidates' names be to the left of the holes, and are asking for a recount. A lower court has already denied that request.

Monday, the Florida high court got an unwelcome surprise when a state appeals court decided it wanted nothing to do with this case and passed it on to the state Supremes. No word on when they might rule.

Monday, the Gore team marched into the Leon County circuit court in Tallahassee to officially contest Florida's vote certification, claiming the results were, in the words of Joe Lieberman "inaccurate and incomplete." Voting results from three counties form the core of their argument. The Leon County court is responsible for election cases in those three counties. Here are the individual Gore arguments:

County election workers were up in arms because Secretary of State Katherine Harris refused to accept their recount numbers after they missed the deadline at 5 p.m. Sunday. Gore lawyers argue those new calculations would have helped their candidate.

The county stopped recounting its votes altogether last Wednesday after deciding they couldn't possibly finish before the Sunday deadline. The Gore team points to very preliminary numbers out of Miami-Dade showing considerable gains for the vice president.

. The canvassing board there reverted to election night tallies after discovering a ballot-counting machine had malfunctioned during the recount. A recount here is likely to produce more votes for Bush than for Gore, but that hasn't stopped the Gore legal team from stepping in and demanding updated numbers.

Let the arguments begin.

Copyright © 2000 Time Inc.


Monday, November 27, 2000


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