Once More Into the Breach

Walter Reed Army Medical Center, Washington, DC, 2005/5/13
When we last left the seven justices of the Florida Supreme Court, they were buying Al Gore the time he thought he needed to overtake George W. Bush in the race for the state, its electors and the presidency.

For a variety of reasons, however — both thoroughly expected (the Secretary of State sticking to her guns, for example) and startlingly unexpected (the folks in Miami-Dade simply giving up on their recount, for example) — the court's extensions last month neither gave Gore enough time to win nor guaranteed that he would lose.

So now we return to the scene of this beautiful courthouse on Duvall Street waiting to hear whether the justices are willing to go much, much further than merely extending a few deadlines.

Now the justices are being asked to give substantive — even monumental — help to the vice president. They are being asked to count the ballots themselves, or authorize others to do so on their behalf, and they are being asked to do so immediately so that their count may yet make a difference in the race.

The significant difference in remedies sought by the Democrats then and now may ultimately prove to be the difference in how the justices react to their request.

Just because the justices were willing to help Gore then, in other words, doesn't necessarily mean that they will help him now. Indeed, the legal burden upon the Gore campaign now is much greater, legally speaking, than it was in November.

Back then, the justices were relying almost exclusively on statutory language and a trial judge's brief ruling. Now, they are being asked to overturn a trial judge who presided over a trial of witnesses, cross-examination and the submission of written evidence.

And the judge's ruling itself Monday didn't exactly leave a whole lot of meat on the bone for the justices to pick on, even if they are inclined to help the Democrats. For those reasons, I think, it will be very difficult for Gore to get what he needs this time around.

There were no significant surprises in the briefs filed by the parties on Wednesday.

Team Gore, as expected, argues that Judge Sauls got it completely wrong when he ruled Monday that no additional ballot-counting was justified.

They argue that he committed an error when he issued his decision without looking at those ballots from Miami-Dade and Palm Beach counties and that he applied the wrong legal standard — the "reasonable probability standard" (get used to it, you are going to hear it a lot during oral argument) — in denying the relief request by the Democrats.

But there was one interesting new twist. Remember when the Republicans were arguing before the United States Supreme Court that the Florida justices had improperly and unfairly made "new" law after the election when they extended those certification deadlines?

Well, the Democrats apparently feel that turnabout is fair play. In heir brief, they contend that Judge Sauls' ruling improperly constitutes a new post-election law, which ought to be thrown out. How would you like to be the Republicans arguing against that particular point before the justices?

The Republicans, too, didn't offer many surprises in their written court papers. They argue that the trial judge got it right and that the justices shouldn't and even cannot overrule him except in extraordinary circumstances which do not exist here.

The GOP also told the justices that they cannot overrule what those county canvassing boards had decided unless those local officials had abused their discretion, a legal standard which is very difficult to overcome.

If there was anything in the Bush brief that made me sit up and take notice it was the stridency of the positions contained in it. For example, "(e)ven in an extremely close election," the GOP told the justices, "where the number of undervotes attributable to voter error easily exceeds the margin of victory, a court may not order a manual recount … unless (Gore) first establishes that the Canvassing Board failed to perform a mandatory statutory act."

That's a very strong and strict standard under Florida law and I wonder whether it's so strict that it won't force the court to rule to the contrary.

Pushing a legal position to its absolute limits before an appellate court, as opposed to seeking a more moderate position, is tantamount to waving a red flag in front of a bull.

So in an ironic way — and this has been a month of ironies — about the best thing going for Gore going into this oral argument Thursday is the position taken by Bush. Go figure.