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The Florida Supreme Court's Six Options

Monday, 20 November 2000 12:00 AM

First off, don't look for a decision today. After what will probably be a hurly-burly hearing with more questions from the justices than uninterrupted debate by the two sides, the court will want to sleep on the hearing, research and write an opinion the next day, with the hammer falling in the form of a relatively short opinion Wednesday, just in time to ruin a lot of folks' Thanksgiving.

Today's transfixed viewers should not make much of questions from the bench. Judges often give the lawyer they agree with a hard time just to probe his position's weaknesses so they can, upon finding them, paper them over in their opinion. But sometimes they're annoyed with one side and let it show. You just don't know.

Now, what might they do? Here's a list:

1. Side with Gore and order the unfair and fraudulent hand recounts included in the state's total vote count. When the obscene chad dance is done, this will likely give the state and the presidency to Gore. The justices know that. For reasons stated by this writer previously, this would be a naked act of judicial activism that would turn the entire Republican Party into a force hell-bent to rein in the judiciary. However, these justices might just be craven and reckless enough to do it.

2. Side with Bush, Harris and Judge Lewis (the Democrat judge who looked at the law and applied the facts to it), finding that there is no statutory or other legal basis for a hand recount of any ballots, since there is no allegation by Team Gore, as required by the state election law, of any fraud or mechanical malfunction of the machines in these three counties. This gives the state and the presidency to Bush.

3. Do #2 above but also eviscerate in their opinion Secretary of State Katherine Harris and the rest of the Republicans, including Governor Bush. Although there would be no basis for judicially drawing and quartering the GOP, the high court's doing so would give a lot of Democrats what they could live with: a Bush presidency crippled significantly by a state Supreme Court opinion setting in stone, in their minds, the illegitimacy of it. This gambit might let the court have its judicial activism and eat it, too.

4. Order a statewide recount, even though Bush didn't ask for it, on the logic that Gore did and that general equity principles should allow a "more accurate and fair" determination of which man got the most votes. If that is what they order, they will also lay down rules as to what chads – pregnant, hanging, swinging, whatever – can be counted.

5. Ask the Florida legislature, pursuant to United States Code Title 3, Section 2 to decide who gets Florida's electoral votes. If this happens I'm going to see Jim Carrey in "Grinch" with my 8-year-old again, to see something closer to reality than this option. Won't happen. But it is something Harris should trigger if the Supreme Court tries to give it to Gore.

6. Finally, they may fashion a "solution" nobody has yet come up with – something that, because of its novelty, would appear to be "impartial" but which would ultimately give the presidency to the man they want to win. Judges love to appear Solomonic, especially when they aren't. The more clever the better. Don't be surprised by a ruling showcasing some bizarre approach that causes the liberal intelligentsia to marvel and Al Gore to kiss Tipper even deeper.

Such "extreme judicial activism" might be too tempting to resist. After all, why not incinerate the intent of the Constitution's Framers with a nuculear blast? It would be fun!

So, what WILL the Florida Supreme Court do? My guess: Let Bush win. He's already won. If they don't, kiss the Constitution bye-bye.

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First off, don't look for a decision today.After what will probably be a hurly-burly hearing with more questions from the justices than uninterrupted debate by the two sides, the court will wantto sleep on the hearing, research and write an opinion the next day, with the...
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Monday, 20 November 2000 12:00 AM
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