Gore's best hope rides on high court ruling

Vice president's legal and political routes narrowing

By Glen Johnson and John Aloysius Farrell, Globe Staff, 11/21/2000

ASHINGTON - When Al Gore closed out his presidential campaign by telling Floridians their every vote mattered, never did he dream his comments would apply to the state's Supreme Court.

In essence, the court's seven justices hold Gore's political future in their hands today, as they weigh whether to allow their state to continue recounting the votes in three heavily Democratic counties.

A ''yes'' vote would allow Gore to proceed on the most favorable territory as he tries to pick up votes in his now two-week-old battle with Republican George W. Bush.

But a ''no'' probably would sound the death knell for Gore in Campaign 2000, for reasons personal, legal, and political. Bush, by contrast, has more viable avenues of appeal in the federal courts, the Florida Legislature, or Congress.

The forces first confronting Gore will be political. Once the recount issue is settled, ''I think there will most likely be a call from the American people that we have an accurate count of the votes in Florida that is reasonable and responsible, and we should live with that outcome,'' US Representative Calvin M. Dooley said yesterday.

Dooley, a Californian, is a moderate Democrat who is cochairman of the New Democrat Coalition and expects the recounts to be allowed. As Dooley sees it, the public supports legal action that allows for the most accurate tabulation of ballots, but would start to voice discontent if the wrangling in court extended beyond that point.

''I'm not aware of any compelling argument that, I guess, would merit a continuation if after the recount of these votes, if Vice President Gore was not ahead in the recount,'' the fifth-term congressman said.

Other Democrats, from US Senator John Breaux of Louisiana to US Senator Robert Torricelli of New Jersey, have made similar remarks since Gore and Bush deadlocked on Election Day, failing to win Florida's 25 electoral votes and the Electoral College majority needed to become president.

On the legal front, Gore's options will narrow dramatically should the Florida justices rule against him.

The first decision Gore's team would face is whether to appeal to the US Supreme Court on due process grounds. Legal analysts said yesterday that the vice president's lawyers would probably get a cold shoulder from the nation's highest court.

''He can go to the Supreme Court, but I don't think he will get much relief,'' said Susan Low Bloch, a Georgetown University law professor. The federal courts, she said, have traditionally given states great leeway in how they conduct elections.

''Under normal circumstances the Supreme Court would be very unlikely'' to hear the case, said Bloch. If the Supreme Court justices do feel the urge to add their voices to a unique national controversy, she said, it would most likely be to affirm the Florida court's ruling in the hope of providing ''finality'' to the dispute.

When making the decision to base its case on Florida state law - as opposed to federal law - the Gore legal team took ''a real roll of the dice,'' said Michael Glennon, a law professor at the University of California at Davis. Now, if Gore loses in the Florida Supreme Court, he will be hard-pressed to find a reason for the US courts to intercede.

''The Gore campaign has been intent upon trying to minimize the possibility of federal judicial review,'' said Glennon.

If he decides not to appeal to the US Supreme Court, Gore could wait for Secretary of State Katherine Harris to certify the results and then formally contest the Florida election in the state's lower courts. Yet there were signs in yesterday's oral arguments of a major obstacle he would face by choosing that route: the calendar.

By law, the Electoral College meets to cast its votes on the first Monday following the second Wednesday of December - this year, Dec. 18. The states are required by federal law to dispose of any disputes six days before that, by Dec. 12, which would give Gore but two weeks to start all over in the Florida courts and win a definitive decision.

Nor could Gore count on much leeway from state courts in his second time around. In yesterday's session, Chief Justice Charles Wells repeatedly worried aloud about the prospect that Florida would fail to certify its electors by the Dec. 12 deadline.

Even if the Democrats should tie the Florida courts in knots, the Republicans have another weapon in their arsenal. By federal law, the GOP-controlled Florida Legislature could intercede and name the state's electors. The never-used provision in the law is ''an anachronism,'' Glennon said, but might be seen as ''the lesser evil'' if the alternative is ''the disenfranchisement of Florida's voters because Florida would miss the deadline.''

Bush has a final ace to play should the Florida dispute still be raging when Congress convenes in early January to tally the Electoral College results. Gore's supporters in Congress could challenge the Florida results, but both houses of Congress would have to vote to disallow the state's votes. Since the House, and perhaps the Senate, will be under Republican control, Bush has a clear advantage in this venue as well.

On a personal level, Gore could risk his political future if he presses his legal challenge beyond the highest court in Florida.

One aide to a high-level Democratic official said that House minority leader Richard A. Gephardt and Senate minority leader Thomas Daschle, the two top Democrats on Capitol Hill, are content to let Gore fight for the recount of the three counties' ballots.

But beyond that, the vice president risks losing any public sympathy he may garner for another presidential bid in 2004, and needs to start worrying about fallout from Democrats concerned about their party's standing with their constituents.

Right now, the party is just shy of a majority in both the House and Senate, and many Democrats are afraid of jeopardizing their chances at taking control in the 2002 congressional elections with a protracted, unpopular fight over the presidency.

If Gore begins losing support in public opinion polls, Democrats are already talking in general terms about sending a high-level delegation to the vice president's official residence to appeal for an end to the dispute.

''Daschle and Gephardt are for letting the counts go forward,'' said the Democratic aide, ''but beyond that, nothing's been predictable in these ... windows of legal maneuvering.''