Analyzing <i>Gore V. Bush</i>

000606 Early Show Andrew Cohen
With the White House in the balance, the Florida Supreme Court must now consider the oral and written arguments made by lawyers for Al Gore and George W. Bush.

I was struck by the conversation that took place between the justices and the lawyers from both sides at Monday's hearing. We counted almost 180 questions by the justices in two hours - that's over a question and a half per minute. Clearly, these justices did not want to hear rhetoric and they didn't want to hear speeches from the attorneys. They wanted specific answers to the very specific questions that they asked. That's a good sign to me - it suggests that the justices absolutely had done their homework and were engaged in all of this. I think it means we're likely to get a decision sooner rather than later.

So what could Florida's top court decide? Well, the most likely option is that it will do nothing. That would be bad news for the Democrats - if the court just allows Florida's GOP Secretary of State Katherine Harris to certify the election, in which case we'll get a lot of those arguments again in court in a couple of weeks.

Another option is that the court will give the Democrats everything, that it will preclude Harris from certifying the election and require her to include the hand-counted votes in the final statewide ballot total.

The third of the likely options, I think, is waiting - waiting for the hand counts to be completed and allowing the Secretary of State to exercise discretion in determining whether they ought to come in or not. After all, the Chief Justice himself at one point said, "Why don't we just wait?" That was only a couple of words in two hours of argument on Monday, but I wonder if that may not be the direction the court is heading.

Now, the legal papers filed by the Gore and Bush teams on the eve of the hearing both were well-written, concise and persuasive, and they both demonstrate why this looks like such a close call.

The Gore campaign's filing was far more eloquent and dramatic - and that figures. Part of their legal strategy has been to try to focus the court on what they see about the senseless rush by their counterparts to declare a winner in the Sunshine State before all the results are in.

That's why Team Gore wrote that the Republican stance would mean a "revolutionary change in Florida law" and why they called Secretary of State Harris' legal attitude an "astounding one" and "Kafkaesque." The Democrats ended one paragraph with the stern sound: "We ask nothing more, and the Constitution requires nothing less," their brief noted.

The Republican brief was much more, well, Republican in nature. Businesslike and generally void of catch phrases, the Bush filing methodically made out the case that no court, even the Florida Supreme Court, ought to second-guess what Harris decided last week, because Florida law gave her the authority to make the call.

Fittingly enough, the Repblican argument here jibed with what conservative jurists argue all the time - that judges shouldn't try to interpret ambiguous statutes in a way that overshoots what the legislators may have intended. So the Bush lawyers were on familiar turf when they talked about limitations on judicial intervention at the hearing.

The Democrats have two big things going for them. First, Florida law encourages judges to interpret the state's election statutes broadly to help ensure that vote results are as accurate as possible and reflect what Florida's voters intended to do. As the seven members of the Florida high court review all the arguments they've heard, that perspective may well make a difference, since the Republican argument urges a strict interpretation of the law and how it was followed by Secretary of State Harris.

The other thing the Democrats have going for them is that the Florida Supreme Court has involved itself before in elections. Having gone down that path in the past, it is arguable that the justices may be a little more willing to go down it again. In the past in Florida, elections have been re-counted and votes even have been re-distributed based upon statistical evidence. This isn't a state, in other words, where the courts are shy about how it deals with its elections - and the justices' peppering the lawyers from both sides with questions at the hearing was no exception to that.

But the Republicans also have a few things going for them. First, appeals courts generally are reluctant to overturn lower courts, especially without much of an evidentiary record below and especially in cases where, as here, the lower court has ruled that a state official was acting within her "discretion." If the Supreme Court were to overturn this case in favor of the Democrats, in other words, it would be overturning both the trial judge's view of the law and Harris' as well. That typically is tough to do and it may prove to be impossible to do in this particular case.

The Republicans have also the advantage when it comes to the Parade of Horribles Theory. The idea behind that theory is that courts generally will side with certainty and finality over chaos when they consider what their effect their decisions may have on the world outside their courtroom. I suspect that's why Harris used the word "anarchy" in her filing Sunday - anarchy as in "if you don't end this with a ruling in favor of the Republicans, all hell with break loose."

All of the possible outcome scenarios on how the court might rule would move this dispute along. The problem is, we still don't know how far, or how long it will take until the last court has heard the last argument in what is essentially the case of Gore v. Bush.