Y THE TIME the Supreme Court heard oral argument yesterday on the case of George W. Bush v. Palm Beach County Canvassing Board, et al., it should have been clear that the political train wreck in Florida had been brought about by an act of unfettered judicial activism by the state Supreme Court. That court converted a legislatively mandated seven-day period for the certification of county results into a 19-day deadline and interpreted an act permitting the secretary of state to extend the deadline to one requiring her to do so.
That the US Supreme Court would find these actions repugnant to a federal law that basically prevents states from changing the rules in federal elections after the day of the vote, is now considered highly possible, even in legal circles which a few days ago were scoffing at the very notion of intervention by the federal judiciary. Yet now many of these analysts offer the view that Sunday's certification of Bush following the latest manual recount renders the case nearly moot, because Florida has moved from the ''protest'' to judicial ''contest'' phase of its election cycle. In other words, it matters little which way the court goes.
The ''experts'' may well be proven as wrong about the consequences of a Supreme Court ruling as they were about the likelihood of the court taking the case.
For one thing, a decision striking down the action of the Florida court could more than double the Bush lead of 537 votes by restoring the situation that existed at the conclusion of the electronic recount augmented by the absentee ballots. Thus the 567 dimpled chad votes Gore picked up in Broward County would be eliminated providing Bush with a buffer against any recounts ordered during the contest period.
Challenges by Gore to counting - or noncounting - decisions made by the Palm Beach and Miami-Date County Boards would also be rendered invalid since those decisions occurred after what would be the restored seven-day deadline.
Presumptively valid for purposes of the contest period would be those electronically recounted ballots. Gore would then have to convince circuit court justices in Florida and eventually the state Supreme Court that there is some reason to begin a fresh counting procedure.
Implicit in a decision for Bush would be a rejection of Gore's central contention - that the employment of manual recount procedures in carefully selected counties is somehow more just than holding to the results of the state-wide electronic recount. This would send a dramatic message to the state courts that there is a limit to result-oriented judicial edicts tolerable to the federal courts even in an area where state prerogatives are given broad latitude. The political impact of such a message would not be lost on the Gore camp and could conceivably affect both the timing and content of Gore's next move.
But the argument inside the court suggested a reluctance at least on the part of several justices to review the merits of the state court's action. One after another they questioned the appropriateness of federal judicial intervention, indicating a reluctance to hold that, however wise or unwise its decision, the Florida court reflected anything more than a state court interpreting state law.
A victory for Gore would also have dramatic impact on events in Florida. Almost certainly that state Supreme Court - its authority refurbished - would sanction the undercounted Miami-Dade County ballots urged by Gore. The odds are high it would also order counted the Palm Beach County votes which narrowly missed the Sunday deadline. And the court could well hold that the Palm Beach County Canvass Board erred in failing the adopt the more permissive ''dimpled chad'' standard followed by neighboring Broward county. In all likelihood this combination of measures would convert the certified winner, George W. Bush into a 13th-hour loser.
And how would this play with the Florida Legislature, which has already taken the initial steps necessary to convene in special session for purposes of designating a set of electors, presumably those loyal to Bush? Pretty badly, one suspects. Indeed it is hard to imagine that predominantly Republican body backing down from its conviction that Gore and his allies had ''stolen'' the election from them. Given such a mentality few would be surprised to see competing electors representing Gore and Bush present themselves to the US House of Representatives.
Thus in averting a crisis in federal-state relations by deferring to the Florida Supreme Court the nation's highest tribunal would perhaps ensure an even more profound crisis a few weeks hence.
Bob Zelnick, author of ''Gore: A Political Life,'' is professor of journalism at Boston University.
