Full Court Press

Survivors sit among the debris at their home in Dumas, Ark., Feb. 25, 2007. AP

The United States Supreme Court oral argument Friday was the sizzle. The hearing Saturday in Tallahassee in the Gore campaign's contest lawsuit is the steak. The former was historic and profound and fascinating. The latter clearly will go much further in determining the identity of the next President of the United States.

Barring an extraordinary departure from its own precedent, the Supreme Court is not likely to order an end to the contest lawsuit.

The Republicans asked the Court to do so only in an unfocused way, as if even the GOP figures that the Court would not and could not do so at this time. Moreover, the Court itself did not invite briefing on that particular issue because, I suspect, the Justices understand that they cannot and will not void a trial which has not occurred. So don't look for a bevy of conservative Justices to blow Team Gore out of the water.

Nor, conversely, can the High Court somehow add more votes to Al Gore's column. The best the Democrats can hope for from the Justices is the maintenance of the status quo. The Gore team is playing defense at the High Court, in other words, they are simply defending the position the Florida Supreme Court gave them.

And even if the Court rules in favor of the Republicans, the practical effect of such a ruling would not necessarily spell doom for the Democrats.

A Supreme Court ruling for the GOP, for example, might mean that all those Broward County votes added to the Vice-President's column as a result of that county's manual recounts would be taken out of the Gore column because they were counted after the initial, November 14th deadline.

That would increase George W. Bush's vote lead back to 930 or so but it also would leave open the possibility that the Democrats could ask the trial judge in the contest lawsuit simply to reinstate those votes during this part of the process. And Florida law indicates that the trial judge could do so, applying well-settled principles applied by other Florida judges in the past.

So while the Supreme Court ruling, when it comes, will have a political impact on this election fight, and while an adverse ruling for the Democrats would make their already tough battle all the more tougher, the real prize here, the real court case to watch, is the one underway in Florida Circuit Court Judge N. Sanders Sauls' trial courtroom.

Saturday's hearing is crucial, absolutely crucial. If Sauls rules that those "undervote" ballots should be counted, and that the standard for discerning voter intent is broad, it will be the best legal news the Democrats have received since these flood of lawsuits started.

If, on the other hand, Sauls rules that there should be no independent evaluation of those ballots, or if he rules that the standard for determining whether a ballot represents a vote should be strict, the Gore campaign will have been dealt a blow from which I think it is unlikely that they can recover.

A victory fo Gore and the ballot counting will be off and running again, buying the Democrats precious time on the public relations front and most probably adding precious votes to the Gore column.

If this happens, the Republicans in an instant will be on the legal defensive - look for them, then, to be the ones rushing over to the Florida Supreme Court to appeal such a decision. And if this happens, the legal momentum clearly will be in favor of Gore, since it seems clear that he may have the votes he needs, when all the votes in play in the contest lawsuit are tallied together.

A defeat for Gore, of course, would mean that it is the Democrats who will have to race across Monroe Avenue, and past the Secretary of State's office, to file an emergency appeal with the state supreme court.

While it's clear that the Florida High Court is somewhat sympathetic to the Democrats, I'm not at all sure that the Court will order a recount at this time, especially after a trial judge determines that it is not appropriate or necessary.

So the next decision or two from Judge Sauls will probably dictate how the rest of this story plays out. The US Supreme Court got the glory Friday, and rightfully so. The arguments were wonderful presented and the questions were insightful and probing. But in an election the bottom line counts and the bottom line now is going to be written by Judge Sauls.



By Andrew Cohen ©2000, CBS Worldwide Inc., All Rights Reserved
  • CBSNews.com staff CBSNews.com staff

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