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Supreme Court and Election Returns

December 5, 2000 GMT

WASHINGTON (AP) _ A century ago a sarcastic commentator famously observed that the Supreme Court follows the election returns. Rival brigades of lawyers are now trying to make the reverse happen _ not only with one Supreme Court but two, America’s and Florida’s.

At least the court’s tortured reasoning was understandable when it decided that the United States could tax people in territories captured in the Spanish American War, vindicating the position of winning Republicans in the 1900 presidential election.

That decision prompted humorist Finley Peter Dunne to coin the line suggesting the Supreme Court really wasn’t an impartial bastion beyond politics but reflected the nation’s political mood.

Dunne wrote his Chicago newspaper pieces in the brogue of an imaginary Irish-American called Mr. Dooley. ``No matter whether th’ Constitution follows th’ flag or not, ‘th Supreme Coort follows th’ iliction returns,″ he commented on a 1901 decision.

In 2000, the election returns are too divided to be followed, putting it up to the courts to decide which counts count, with Gore contesting Bush’s razor edge for the Florida electoral votes that will decide the presidency. That accounts for all the lawyers and all the court cases.

Bush won a pivotal case in a Florida court on Monday, when Judge N. Sanders Sauls rejected Gore’s bid for selective recounts of 14,000 disputed ballots his lawyers said would have reversed the state outcome. Sauls said Gore hadn’t proved it.

The Texas governor also claimed satisfaction in the ruling by the Supreme Court that set aside the decision of the Florida Supreme Court to extend the deadline set by state law for certification of a victor.

The state court ruling permitted the partial recounts that narrowed Bush’s margin to 537 votes, of some 6 million cast on Nov. 7.

The Bush camp claimed to have won in the Supreme Court, while Gore’s lawyers said it was a standoff, no decision. The Supreme Court decision was seven impenetrable pages of legal prose, leading to a judgment that the justices were unclear on the basis for the Florida Supreme Court’s ruling.

So the nine justices sent the case back to Tallahassee ``for further proceedings not inconsistent with this opinion,″ leaving the seven justices on the state’s high court to figure out what is and what isn’t consistent.

While the state justices set about that task on Tuesday, they also likely will receive Gore’s appeal of a Leon County Circuit Court decision denying the vice president’s bid for further recounting of 14,000 disputed ballots. The Gore side said that recount would overturn Bush’s lead. The judge said they hadn’t proved it would, that there was no misconduct or breach of state laws, and rejected Gore’s challenge.

That was the one clear verdict of the day. In a courtroom packed with lawyer legions for both presidential sides, Judge N. Sanders Sauls had heard nearly 24 hours of testimony and argument on Gore’s recount case.

The Supreme Court listened and questioned the Bush and Gore lawyers for 90 minutes last Friday, retreated to the privacy of their marble halls to consider the case, and had the decision issued while they were on the bench, hearing a case about a soccer mom arrested for failing to use seat belts.

Routine handling, but then, it was a decision that settled nothing. Indeed, even a decision that did affirm or deny the Florida Supreme Court ruling would not have settled the election dispute.

The Sauls verdict did deal with the central issue in the monthlong struggle, by rejecting Gore’s case for selective recounts. He’d delayed his decision to try to discern whether the Supreme Court ruling in the other case affected his, then delivered the most severe court blow so far to Gore’s bid to overturn the state-certified win that would deliver Bush 25 electoral votes on Dec. 18 and the White House on Jan. 20.

``They won. We lost. We’re appealing,″ said David Boies, Gore’s lead lawyer.

Plain language, finally.

In earlier rounds, on the Supreme Court decision, Boies and other Gore attorneys had tried to argue things their way, saying it was not a win for either side, although it did, at least temporarily, vacate the state court decision Gore had won.

James A. Baker III, Bush’s adviser on the Florida cases, and other Republicans contended they had, too, won in the Supreme Court, although the decision invited _ indeed, instructed _ the Florida court to go back to work on the case it had unanimously decided in Gore’s favor.

Bush, no lawyer, called it ``a very positive statement on our behalf,″ but otherwise stuck to a legal script, saying three times, in only slightly varying words:

``The sentiment I want to convey is this, that I am comforted by the fact that the highest court of our land heard our case and will make sure this election is fair.″

Boies said the final judgment on all of this would come from the Florida Supreme Court, where the Gore camp thinks it has the upper hand. But Baker said that will not be the last word. ``Any further action will be subject to U.S. Supreme Court review,″ Baker said.

For courtroom drama, the day belonged to Sauls. In a singsong drawl, he read his verdict against Gore’s challenge, as clear as the Supreme Court’s language was opaque.

``All right,″ he said. ``That’ll conclude. The court will stand in recess.″


EDITOR’S NOTE _ Walter R. Mears has reported on Washington and national politics for more than 35 years.