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The final showdown may be at the federal Supreme Court

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December 11, 2000 

Washington (AP)--On the eve of historic U.S. Supreme Court arguments, Al Gore's attorney said Sunday the vice president urgently needs a legal victory to recount Florida's votes or ``that's the end of the road'' for his dogged drive to the presidency. A chorus of jittery Democrats agreed.

As both sides previewed their cases in legal filings, George W. Bush's lawyers asked the high court to overturn a Florida Supreme Court recount plan they said would ``incite controversy, suspicion and lack of confidence'' in the first American presidential election of the 21st century. Democratic attorneys defended the Florida court.

``Voters have important rights to have their ballots counted, and the magnitude of those rights dwarfs'' any legal arguments raised by Bush, the vice president's brief said. Though confident, Gore's attorneys conceded publicly and privately that the odds are stacked against them.

As deeply divided as the country, the high court justices voted 5-4 on Saturday to temporarily halt manual recounts in Florida and consider the landmark Bush v. Gore case. More than 50 people lined up outside the court at midday Sunday, pitching tents and spreading sleeping bags across bone-chilling concrete in hopes of snaring a courtroom seat. Gore, who trails Bush by less than 200 votes out of 6 million cast, wants to recount about 45,000 ``undervote'' ballots throughout the state. Bush argues there is no fair way to count the ballots that didn't register presidential votes in a machine count, and the legislative branch of government — not the courts — should determine the nation's 43rd president.

The state's 25 electoral votes would put either man in the White House. A CNN/USA Today Gallup Poll conducted Sunday found a nearly even split over whether the court should allow the recount to continue — 47 percent for a recount and 49 percent against, with a margin of error of plus or minus 4 percentage points. The survey of 735 adults also found 72 percent believe the Supreme Court will rule fairly in the case. However, among people who identified themselves as Bush supporters the figure was 87 percent, while among Gore supporters it was 54 percent. Neither side committed to giving up if the Supreme Court issues an adverse decision, but even Gore's advisers conceded he has fewer options than Bush beyond the high court. ``If no votes are counted, then I think that's the end of the road,'' said David Boies, who will argue the case for Gore. But the lawyer stopped short of saying his client would bow out if the Supreme Court ruled against him, suggesting Gore might await appeals of failed Democratic lawsuits seeking to throw out up to 25,000 Florida absentee ballots. ``I'm not going to say what's going to happen,'' Boies said. House Minority Leader Richard Gephardt, a steadfast Gore supporter, told ABC, ``I believe he will'' concede if the court rules against him — and Bush should do the same if the tables are turned. A spokeswoman later said the Missouri lawmaker would defer to Gore's judgment if the vice president thought he had other legal options. ``I believe that probably is the last word, and it's the last chance to have this issue not go to the United States Congress,'' Sen. Robert Torricelli, D-N.J., said of the court.

The GOP-led Florida Legislature, under guidance from the Bush camp, is preparing to appoint its own slate of Bush electors — raising the possibility of two separate slates for a divided Congress to sort out. Gore's own advisers said privately the pressure to concede would be unbearable if the Democrat lost the Supreme Court fight. They discussed worst-case scenarios in small groups over the weekend, including the possibility Gore would suspend his campaign with a high-minded speech that stopped just short of a concession.

That would leave his options open in the unlikely event that Democrats prevail in the absentee ballot cases or the Supreme Court ruling is viewed as partisan and political pressure builds against Bush, senior advisers said. They stressed that no recommendations have been made to Gore, the son of a senator who first ran for president in 1988. They said their boss appeared to be confident of victory in the high court. The presidents-in-waiting laid low Sunday. Gore went to church, where the sermon was titled ``Preparation'' and Rev. Martha E. Phillips prayed for the country ``in this time of turmoil.'' Bush traveled from his secluded ranch to the Texas capital in Austin, where he was throwing a Christmas party.

The Supreme Court is pressing against deadlines set in federal law. States must assign electors Tuesday, and those individuals meet Dec. 18 as the Electoral College to name the nation's next president. With the judiciary and legislative branches potentially at odds, the Supreme Court is assessing Bush's arguments against recounts: the Florida Legislature has the sole right to assign state electors, and reviewing ballots under a variety of county standards would violate due process requirements in the U.S. Constitution.

``The court's newly devised scheme for re-tabulating votes is plainly arbitrary, capricious, unequal and standardless,'' the GOP brief said, referring to the Florida Supreme Court. Gore wants recounts of the undervote ballots, saying many of them contain clues to the will of Florida voters. In a 4-3 decision, the Florida Supreme Court approved the plan for a weekend recount, prompting Bush's appeal to the nation's highest court.

When the counting stopped Saturday, an unofficial Associated Press survey put Bush' lead over Gore at 177 votes. Bush's point man in Florida, former secretary of state James A. Baker III, said the Texas governor is not afraid of every vote being counted. ``The question is what is every legal vote?'' he said. Boies said the high court's action Saturday suggests he has ``a hill to climb'' Monday. ``I think that you've got five justices there that have decided that there is a substantial probability that Governor Bush is right on this issue,'' Boies said. Gore is betting that written and oral arguments will ``convince them that we are right and that those votes ought to be counted,'' Boies said.

Strikingly more confident, Baker refused to say Bush would concede if the Supreme Court ruled against him. He also warned that Republicans could try to swing Gore electors to their side if Democrats try to turn GOP electors against Bush. ``Maybe we ought to consider doing the same thing to theirs,'' Baker told CNN. ``What's fair for one side seems to me is fair for the other.''

Gore has denied any involvement in attempts to sway electors, who traditionally are loyal to the candidate who selects them. If Bush wins Florida's 25 electors, he will be just one electoral vote over the 270 needed to claim the presidency.

Determined to send a slate of Bush electors to Washington, majority Republicans in the Florida Legislature will oversee testimony Monday from legal experts and public witnesses on lawmakers' authority in presidential elections. GOP Senate leaders suggested Sunday they may delay a decision on selecting electors until after the U.S. Supreme Court rules. The House could vote as early as Tuesday on a presidential slate. The Senate isn't expected to take action before Wednesday. Gore's allies in the Democratic Party's liberal base plan to apply political pressure Monday when the Rev. Jesse Jackson and AFL-CIO President John Sweeney hold a news conference to call for prayer vigils across the country as the Supreme Court deliberates the case.