Gore, Bush File Briefs

Acknowledging the stakes, a Democratic lawyer said Sunday that if the Supreme Court won't allow the recount to continue, it would likely be "the end of the road" in the long-running battle for the U.S. presidency.

Meanwhile, a committee of the Florida Legislature also convenes Monday as the legislature moves toward naming its own slate of electors for Republican Texas Gov. George W. Bush if the uncertainty continues past Tuesday.

Both hearings underscore the narrowing options for Democratic Vice President Al Gore, whose hope of overtaking was dashed at least temporarily Saturday when the U.S. Supreme Court stepped in to suspend the recount. Both sides acknowledge the stay, by a vote of 5 to 4, could foreshadow a decision to stop the recount altogether.

That would sustain Bush's certified lead of 537 votes in Florida and give him the state's 25 electors, enough to win a majority in the Electoral College and make him 43rd U.S. president.

At issue is whether a statewide manual recount in Florida of 43,000 so-called undervotes – ballots on which machine counters detected no presidential vote – is constitutional. The recount was requested by the Gore campaign and was ordered Friday by the Florida Supreme Court. Less than 24 hours later, the U.S. Supreme Court stepped in.

Gore lead attorney David Boies Sunday acknowledged an adverse ruling would likely end Gore's chances: "If no votes are counted, then I think that's the end of the road.''

Boies will argue the case for Gore Monday; Ted Olson will appear on behalf of Bush.

In their brief, attorneys for Bush said the Florida court "completely rewrote the Florida Legislature's pre-election laws" – a two-pronged attempt to raise federal issues, which the Supreme Court must agree exist before it can take jurisdiction. The Legislature's prerogative to determine how electors are selected is in the U.S. Constitution, and a federal statute requires that elections must be held in accordance with laws enacted before the election takes place.

The Republican brief also argues that the Florida court "establishes a standard for the instigation of recounts not recognizable under Florida law, requires manual recounts of 'under-voted' but not 'over-voted' ballots (ones on which more than one candidate for the same office was voted for), and mandates inconsistent recounts within certain counties in violation of fundamental principles of equal protection and due process." That would also be unconstitutional.

The Democratic brief argues that the "Florida Supreme Court has determined, in a way that would be unremarkable but for the stakes in this election, that in order to determine whether lawfully cast ballots have been wrongfully excluded from the certified vote tally in this election, they must be examined. This is basic, essential, to our democracy, and to all that gives it legitimacy."

The brief says the matter does not raise a federal issue because the Florida statutes were correctly applied and "the question is whether this Court may properly override Florida's own state-law process for determining the rightful winner of its electoral votes in this Presidential election." That, says the brief, "would run an impermissible risk of tainting the result of the election in Florida – and therefore the nation."

Republicans also battled Democrats on the nation's airwaves Sunday for the legal and moral high ground as they awaited Monday's hearing.

"We're not afraid to let every vote be counted at all," James Baker, a top adviser to Republican Texas Gov. George W. Bush, said on NBC's "Meet the Press." "The issue is, what is every legal vote?"

Baker was endorsing the view of Justice Antonin Scalia, who wrote in comments accompanying the order Saturday that continuing the recount before determining its legality could undercut the legitimacy of whoever becomes president.

"Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," Justice Antonin Scalia wrote as part of the order.

Baker agreed. "You normally don't apply a remedy" – recounting all undervotes statewide – "before you have established the fact that someone is entitled to the remedy," he said Sunday. "So the difference here is whether or not you do that in advance of a finding that a remedy is called for."

The only other apparent legal "out" for Gore would be if the state Supreme Court reversed lower court judges Friday who refused to toss out absentee ballots in two counties. Democrats claim the votes were tainted by Republican irregularities involving the ballot applications.

But attention Sunday was focused squarely on the U.S. Supreme Court in the matter of Bush v. Gore. Bush returned to the governor's mansion in Austin from his ranch in Texas and greeted a buoyant crowd outside; Gore went to church but otherwise remained out of sight at the vice president's residence in Washington.

Gore adviser Warren Christopher, speaking on CNN, expressed optimism that the court would order the recount to resume despite the 5-4 majority dubious enough to intervene immediately.

"I'm hoping on more mature consideration the Supreme Court of the United States will decide the recounts should go forward," Christopher said. Written briefs are due by 4 p.m. Sunday.

Christopher also batted down speculation that if Gore loses in the Supreme Court, he might try to pry loose the two out of 271 Bush electors that would be needed to reverse the outcome. Gore said soon after Election Day Nov. 7 that he would not accept such electors, and Christopher, asked if Gore would reject any such efforts on his behalf, said "I think he will."

Baker said that if anyone attempted to convert Bush electors, the Bush camp would retaliate in kind.

Sen. Christopher Dodd, D-Conn., agreed with U.S. Supreme Court Justice John Paul Stevens, who argued that the ultimate damage in the election contest would not be to the candidates, but rather to the public and the incoming president.

"Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election," Stevens wrote in disagreeing with the majority's decision to stay the recount and hear argument, saying that "the Florida court's ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted."

Baker stopped short of saying the Florida Legislature, which convened in special session Friday and will continue Monday, should choose electors if the matter remains undecided by a federal deadline Tuesday.

"I'm not saying they should. They're going to do what they're going to do," Baker said, adding that the Bush campaign has been giving advice to the state legislators on how best to proceed.

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