Courts, clock deal blow to Gore's hopes

By Susan Milligan, Globe Staff, 12/13/2000

ASHINGTON - Throughout their five-week struggle to win the presidency for their client, Al Gore's lawyers knew they had two obstacles: the courts and the clock.

Yesterday, the two came together to give Gore's hopes a potentially lethal blow.

As they battled from canvassing board to courtroom, Gore's spokesmen repeatedly accused the legal team of George W. Bush of deliberately delaying the process, knowing that even a sympathetic court could not help the vice president after the deadlines for the selection and meeting of Florida's 25 Electoral College representatives had passed.

It was that fight the Gore campaign lost last night, when the US Supreme Court, in a deeply divided opinion, concluded that there wasn't enough time for the votes to be constitutionally recounted.

''It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work,'' the high court found.

Four justices on the nine-member court thought a way could be found to give Gore a constitutional count. But the five-member bloc of conservatives who had issued a stay of the Florida Supreme Court's decision granting recounts last weekend clung together, resisting any attempts by their liberal colleagues for a compromise.

The stay that the five justices ordered Saturday consumed the last, remaining hours Gore had to count votes. Those same five justices then ruled last night that he had run out of time.

If the Bush camp was trying to win by delaying - a contention Bush lead attorney Barry Richard repeatedly has denied - ''it worked,'' said Milton Heumann, chairman of the political science department at Rutgers University.

''If they felt a deadline could have been met, they shouldn't have issued the stay,'' Heumann said. ''You can't stop it and then say it's too late,'' he said.

The deadline that apparently concerned the court expired at midnight. It was the so-called safe harbor provision of the federal code, a provision that says a state's electoral slate cannot be challenged by Congress if it is formally named by Dec. 12.

The deadline had been invoked by the Florida Supreme Court in an initial decision, favoring Gore, that allowed the recounts to continue. The US Supreme Court pointed to the Florida court's reliance on the importance of the Dec. 12 deadline in its decision last night.

In doing so, the US Supreme Court was reviving a slumbering issue. The parties on both sides of the case had in recent weeks amended their view of the ''drop dead'' date for selecting electors, indicating that Dec. 18 - the day the Electoral College will meet - was the true deadline for determining the results of the election.

''It's not really a deadline like a statute of limitations,'' after which Florida could not name its 25 electors, said professor Joel Gora of Brooklyn Law School. ''It is more like a student saying, `I'll try to get the paper in today.'''

According to the National Archives, only 29 states and the District of Columbia made yesterday's deadline by close of business. But in the case of states like Massachusetts - which had not filed its slate of electors by late yesterday afternoon - the issue is meaningless, scholars said, because Massachusetts' slate would not be challenged by Congress.

Last night ''was the drop-dead date in the sense that that was the last possible day anyone could win without undergoing a congressional vote,'' said John Yoo, a law professor at the University of California at Berkeley. ''The court seemed to want to keep a president from being selected by Congress.''

Seven justices of the high court joined in a concern about the equal protection issue, worried that the haphazard standards used to recount the votes would deny voters ''equal protection'' under the 14th Amendment of the US Constitution.

But that issue could have favored either Bush or Gore, legal scholars said. The court could have ruled that a uniform standard should be set - or could have set it itself - and then allowed a recount to continue, finishing by the Dec. 18 meeting date of the Electoral College.

But instead, a five-member majority of the court said there simply wasn't enough time to set new standards and then to do the recount, since the job clearly could not have been finished in the two hours between the issuance of the opinion and the expiration of the ''safe harbor'' deadline.

''What was awkward for the Supreme Court was the lateness of the hour, that limited the kind of relief'' that Gore could be awarded, said John Attanasio, a law professor at Southern Methodist University. But Attanasio said the court was also apparently ''skeptical'' of the rulings by the Florida Supreme Court, and the state court's failure to answer the questions the high court raised earlier.

Scholars also worried about the narrow division of the critical element of the decision - the 5-4 split over timing - and the implications it might have for public confidence in the high court. Saturday's ruling ordering a halt to the recounts was particularly damaging, many legal scholars said, because the court divided along ideological lines.

But the court has survived sharp disagreements in the past, and will probably weather this political storm, at least internally, said Yoo, a former law clerk to Supreme Court Justice Clarence Thomas. ''The justices are pretty good about putting it behind them,'' Yoo said. ''They really do let bygones be bygones.''