Associated Press
November 21, 2000

Gore Urges Court To Set Standards

By Linda Deutsch

TALLAHASSEE, Fla. (AP) -- George W. Bush's legal team filed a surprise brief with the Florida Supreme Court on Tuesday questioning the justices' authority in a crucial part of the historic presidential case they are considering.

Al Gore's attorneys said it looked as if the Republicans were stalling and they filed an immediate response, urging the court to go ahead with its decision and to set standards on disputed manual vote recounts.

The Democratic attorneys accused the Republicans of raising a ''parade of horribles'' to steer the court away.

The justices worked into the night Tuesday.

''There are a lot of knitted brows here,'' said court spokesman Craig Waters. ''There's a lot of seriousness and a lot of humility.''

In the court filings earlier, the Bush lawyers contended the court was ''without power'' to set standards for the counting of ballots by county canvassing boards.

The issue of what rules should be applied to such things as ''dimpled ballots'' -- those with indentations but not punched through -- was raised in oral arguments Monday and also was addressed in the response brief to the court from Gore's lawyers. Republican Bush's legal team said it was too late, that the issue should have been raised earlier.

In a telephone conference Tuesday, Bush lawyer Michael Carvin said he did not respond on the issue when it was raised in a Democratic brief on Sunday because he was preparing his oral argument. ''I didn't think anyone would take this very seriously,'' he said.

Bush's lawyers suggested that the court should not even address the issue of a voter's intent when punching a ballot.

''This is an intensely fact-bound question, and there is no existing Florida law on this question. It would thus be particularly inappropriate to decide this question in this legal and evidentiary vacuum. At a minimum, if the court does proceed, we request an opportunity to be heard on this question,'' the Bush lawyers argued.

The Gore lawyers responded: ''The issue is one of law appropriate for determination by this court. ... It does not present factual issues.''

Jenny Backus, a spokeswoman for the Democratic Party, said of the Bush filing: ''It's not only highly unusual. It has the appearance of being an attempt to delay action by this court.''

The Bush brief said there was ''an extremely tight timeframe for consideration of these issues,'' suggesting officials had already missed the last deadline for certifying the election in time to allow it to be contested properly.

Bush's lawyers said state law requires a 22-to-27 day period for candidates to contest certified results, meaning the state should have certified the vote by Monday of this week ''at the very latest.''

In case they lose in Florida, Republican lawyers were prepared to seek an emergency appeal directly to the U.S. Supreme Court, bypassing lower federal courts where they have suffered setbacks.

Florida Gov. Jeb Bush, the Republican candidate's brother, said he expected a conclusion soon. ''This is going to come to an end, and the rule of law will prevail, and we'll move on,'' he said.

The 11th U.S. Circuit Court of Appeals in Atlanta is considering George W. Bush's efforts to stop the recounts but set a timetable Tuesday that would allow some written arguments to be filed as late as Nov. 29 -- with the counting proceeding in the meantime.

In another brief filed with the Florida Supreme Court Tuesday, Broward County's canvassing board said it was waiting for the justices to rule on the question of what ballots could be counted -- ''and it is imperative that it be resolved immediately.''

Before the day's briefs were filed, the justices already were faced with multiple choices in crafting a decision for history that would end the stalemate holding up the selection of the nation's 43rd president.

Some experts suggested the court could choose not to rule at all.

The scenario they posed was that if the continuing recounts weighed in favor of Bush, then Gore might concede the election before the court issued its ruling.

''There is a strong incentive to delay,'' said election law scholar Richard L. Hasen, who said the court may be waiting to see the outcome of hand recounts in heavily Democratic Palm Beach County.

So far, the count there has not added significant numbers of votes to Gore's tally.

''The court is concerned about issuing a ruling that might be perceived as partisan,'' Hasen said, noting that the justices are Democratic appointees.

Legal analysts said that while the justices face a perplexing task -- interpreting conflicting state statutes for the first time -- their choices are fairly clear.

Loyola University law School Professor Laurie Levenson outlined three possibilities. The justices could:

-- Lift their own injunction and allow Secretary of State Katherine Harris to certify the election results without further recounts -- but with the potential for the Democrats to challenge the certification.

-- Allow recounts to continue according to a specific schedule ensuring that Florida's 25 electoral votes would be submitted by the Dec. 12 deadline.

-- Set up a schedule and specific standards for counting questioned votes such as the ''dimpled'' ballots.

''There are a myriad options here,'' said Levenson. ''The court is very aware of the time pressures on everybody.''

She also raised the possibility of a concession making the court's ruling moot.

But concession clearly is not a word in the current Gore vocabulary. He is pressing for the recounts in hopes of overtaking Bush's 930-vote lead in the statewide election. Bush is hoping to shut the recounts down.

If Harris certified a Bush victory, the Gore camp could contest it under a state law that allows an election to be challenged if a number of legal votes were rejected ''sufficient to change or place in doubt the result of the election.''

The catch in that plan, said Hasen, is that for Gore to challenge the election, he must have access to the results of the completed hand recounts -- which may not be finished until December in some counties.

The court's Web site acknowledged the press of public interest, posting this notice: ''Please do not call the court expecting to speak with a justice about the election cases.''

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