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Writing final chapter on election

Outcome of presidential race likely to hinge on 7 justices in Florida's high court

Posted: Tuesday, November 21, 2000

AUSTIN, Texas -- As one of the closest presidential elections in history hangs in the balance, George W. Bush and Al Gore concentrated on seven ''votes'' that could decide the outcome -- those of the justices of the Florida Supreme Court.

The stakes -- both legal and political -- were enormous in Monday's courtroom showdown.

''All eyes are on Tallahassee,'' said Bush campaign spokesman Ari Fleischer as lawyers for both camps mounted what could be their last, best chance to influence the election outcome.

Some political analysts and legal scholars believe the state's high court may be the one to write the final chapter to this extraordinary American political cliffhanger.

The federal judiciary already has shown a disinclination to inject itself into the dispute. An appeals court in Atlanta last Friday rejected Bush's request for an immediate end to ballot recounts Gore has requested in Democratic-leaning counties, saying it saw no reason to step in.

And the likelihood that the U.S. Supreme Court would review the Florida decision is somewhere between ''nil'' and ''remote,'' suggested New York University law professor Stephen Gillers.

''It's nil if the state court rules against Gore. I don't think he'll appeal. His brief didn't introduce any federal issues. If the state court rules against Bush, I think the Bush team will wait to see what the recount is likely to show before taking an appeal to the Supreme Court,'' Gillers said.

And if the Bush team does appeal, ''the chance of getting a discretionary review from the Supreme Court is remote,'' Gillers added. ''I don't think the Supreme Court will be eager to get involved in answering what Bush says are the federal issues.''

Thirteen days of legal maneuvering and posturing by both camps came to a head Monday as Florida's Supreme Court entertained arguments in the case.

Bush wants the justices -- all chosen by Democratic governors -- to stop the manual recounts of ballots in Broward, Palm Beach and Miami-Dade counties. Gore wants them to continue.

If the high court says Secretary of State Katherine Harris was wrong to try to certify the election results with Bush ahead, the counts could go on, with Gore hoping to pick up enough votes to overcome Bush's statewide lead of 930 votes.

Both sides left open the possibility of additional steps. But each team also recognized that the Florida ruling could be the final determination on Florida's 25 electoral votes -- and with them, the presidential election.

The importance of the case was not lost on the justices. ''This is a matter of utmost and vital importance to our nation, our state and our world,'' said Chief Justice Charles T. Wells.

Thomas Mann, a senior fellow at the Brookings Institution, a Washington think tank, suggested a less-than-clear cut ruling could prolong the dispute.

''The justices could rule very narrowly. They basically could ask the secretary of state to let hand counts continue and allow her to make a decision again,'' he said. ''We could end up going through more litigation in the state Supreme Court.''

Some Gore supporters accuse Harris, a Republican and Bush campaign worker, of partisan motives. Republicans argue that she was right to try to stick to the Nov. 14 deadline set by state law.

A less-than-decisive ruling also could provide impetus for finding a political solution, such as the GOP-led Florida Legislature naming its own slate of Bush electors, Mann said. ''That's kind of risky,'' he said. ''I can't imagine a Bush presidency recovering from that kind of chicanery.''

Richard Friedman, a law professor at the University of Michigan who follows Supreme Court issues, said he's certain Florida will be able to certify its electors in the normal fashion well before the Electoral College meets Dec. 18 to elect the next president.

''My anticipation is that things are now going to come to a head quite quickly,'' Friedman said. ''I don't think this suit is going to go anywhere higher.''

Would Bush appeal to the U.S. Supreme Court if the state court rules against him?

''That's a judgment that has to be made after you know precisely what it is that the court renders,'' said Montana Gov. Marc Racicot, a lawyer and Bush adviser.

Tom Raum has reported on politics and government for The Associated Press for 30 years.



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