In an appeal, Democrat Vice President Gore's lawyers asked the high court to overturn Monday's order from a county judge denying a hand recount of more than 13,000 disputed ballots cast in last month's presidential election. Gore's lawyers said the ruling by Leon County Circuit Judge N. Sanders Sauls contained three major errors.
At the same time, Republican lawyers representing President-elect Bush filed a brief that defended Sauls' ruling as "well-reasoned and careful."
The Florida high court will hear oral arguments by both parties on Thursday morning in an effort to resolve the month-old dispute over which candidate carried Florida's 25 electoral votes, which look almost certain to supply the ultimate margin of victory in the struggle for the U.S. presidency.
Attorneys for the Bush team expressed confidence that Sauls' original ruling would be upheld because not doing so would change the rules of the November election. This, the GOP lawyers said, would run counter to Article II of the U.S. Constitution and Title III, Section 5 of the federal code.
The brief filed by the Gore team, led by New York attorney David Boies, argues that Saul based his decision on 1974 and 1982 laws that were reworked by the state Legislature to allow broader election challenges last year.
"If this state's contest provision is to have any meaning, the meaning must be this: It is a mechanism for determining if state authorities certified the wrong candidate as the winner of the election," the filing says.
But even if he succeeds on this element of the case, Gore must still prove to the Supreme Court that the election would have turned out differently, something that Sauls decided that he had not.
Specifically, Gore's lawyers argue that Sauls made three crucial errors in rejecting their petition for a recount.
In the case of about 10,000 disputed ballots in Miami-Dade County, for example, there was no exercise of discretion because the ballots were never examined, the Gore team says.
"The lower court ignored the most important piece of evidence, which is all those votes on the ballots here in Tallahassee that have not been looked at yet," Gore spokesman Doug Hattaway said. "We need to count the votes to determine who won the election, and that hasn't happened yet."
The legal squad working on behalf of Bush makes the interesting claim that the court should not bother to hear the claim at all because Sauls' ruling was sound, and because the public interest "would be frustrated, not furthered, by prolonging these legal proceedings."
Bush's lawyers argue that the Supreme Court should not take up this case, which it has not yet decided to do – despite scheduling oral arguments – in order to allow the cases, and the election, to come to closure.
They further argue that by denying Gore's appeal, the court can avoid the tougher questions about its previous authorization of hand recounts raised by the U.S. Supreme Court earlier this week, "and thus make resolution of the complex constitutional and federal issues unnecessary."
The final broad argument raised by the Bush brief says that the court should ignore Gore's request to protect the ability of Florida to name electors to the Electoral College voting, scheduled for Dec. 18.
Bush attorneys told United Press International that they believed the outcome of the case was tied up with the Monday ruling by the U.S. Supreme Court, which they characterize as a defeat for Gore. They said that by setting aside the original judgment by the Florida high court, instead of just asking for reconsideration, the Supreme Court was implying that the original decision was faulty.
A Gore victory, or partial victory, in Thursday's appeal would counter the U.S. high court's ruling, they argue.
"In the case of a partial victory in the Florida Supreme Court, I would find that a curious opinion," a top Bush attorney said.
"To reach any partial solution would require the Florida Supreme Court jumping in with equitable powers, something that the U.S. Supreme Court warned them against."
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