'Substantial Probability'

When the dust finally settles at the U.S. Supreme Court, Tuesday or Wednesday I'm guessing, one of two things will have occurred. Either Al Gore will virtually be out of legal options and on the verge of a concession speech. Or the vice president will be in better shape, legally and politically, than he even was in on Friday when the Florida Supreme Court ordered additional recounts in that state.

The oral argument Monday morning, and the decision which should follow shortly thereafter, clearly are the defining legal moments in this post-election fight. Neither party may legally or successfully appeal a decision by the Justices - you cannot go higher than the top - and neither side can politically afford to circumvent what the court rules. A Gore victory and even the Florida legislature may back off. A Bush victory and there simply won't be any more Gore votes left to count, manually or otherwise.

So it's no surprise that both sides used stern and lofty rhetoric in their court papers filed Sunday, language which surely will not make it past the Justices on the bench tomorrow. The Democrats began their 51-page submission with this missive: "This Case raises the most fundamental questions about the legitimacy of political power in our democracy" and then noted that the Florida Supreme Court decision is "basic, essential to our democracy, and to all that gives it legitimacy."

The Republicans, on the other hand, told the Justices that the Florida court "has not only violated the Constitution and federal law, it has created a regime virtually guaranteed to incite controversy, suspicion, and lack of confidence not only in the process but in the result that such a process would produce." The GOP also reminded the Justices that the Florida Supreme Court did not in its majority decision respond to the High Court's remand order of last Monday. The idea, I suspect, is to generate some bad blood between the two courts, bad blood which certainly cannot help Democratic chances of having the Florida court ruling affirmed.

The arguments presented by both sides are not new. The Republicans, who have the burden here of convincing the court to overturn what the Florida Justices decided, contend that the ruling in Tallahassee violates the Constitution because it interfered with the job of the legislature to enact laws concerning elections. The GOP also argues that the Florida ruling violates federal law because it amounts to the creation of "new" election law after the election. Finally, in what is probably the sleeper argument for Team Bush, the Republicans say that the recount procedures are so standardless and arbitrary that they deprive Florida voters of fundamental due process and equal protection rights.

The Democrats, who have the burden here of convincing the Court to release the stay and permit recounting, say that the Florida Justices did not violate the Constitution with their ruling because their ruling wa consistent with settled Florida law - included Florida law enacted by the legislature itself. Team Gore also argues that the Florida court didn't violate federal law because it didn't make new election law after election day, it only interpreted existing election law.

Finally, the Democrats contend there are no equal protection or due process problems with the manual recount procedures because to recognize such problems would be to invalidate all election procedures in all states. In other words, the Gore attorneys claim, if the Court is going to create a rule saying that all counting must be standard, then such a standard not only invalidates the method of recounting in Florida but the method of voting there, too, since punchcard ballots are different from optical scan ballots and the like.

These arguments are similar to those made a few weeks ago the first time the Supreme Court got involved. What is different is the decision itself that is being reviewed. It seems to me that the Florida Court's ruling can be successfully defended by the Democrats as one merely offering a valid interpretation (right or wrong) of existing Florida law. I don't think a majority of Justices, in other words, will see the state ruling as one which made new law or which intruded improperly upon the legislative branch.

But I do think the Justices will have a hard time swallowing the way the Florida court chose to handle the manual recount. Courts don't like standardless processes, and you certainly could argue with a straight face that the Florida court's "voter intent" standard gives way too much discretion to local officials to satisfy constitutional standards. Look for this issue to be particularly prevalent Monday during oral argument. The other, more dense, issues already have been chewed over. The recount standards, or lack thereof, are new, which makes them cannon fodder for curious Justices. And will the court be willing to set new, specific standards for recounts if it doesn't like the ambiguous one currently in place.

Meanwhile, much, too much in my view, has been made of the language used by Justice Scalia in defending the decision to stay the counting while the court considers the case. The stay only suggests a possible victory for Bush; it absolutely does not guarantee one. Courts all the time issue stays and then release them when they rule on the merits and the phrase used by Scalia "substantial probability" isn't his own word, it's standard, boilerplate language used when a temporary stay is issued. Also remember that Scalia's interpretation of that phrase may be different from the other Justices who wanted to keep the status quo in place before ruling. And even Scalia himself seemed to leave open the possibility of future counts.

But even if Scalia has dug in, his is only one vote out of nine and I bet the Gore lawyers weren't counting on it anyway. That's why if you do nothing else tomorrow listening to the U.S. Suprme Court oral argument in the aptly-named case, Bush v. Gore, listen to the questions asked by Justices Sandra Day O'Connor and Anthony Kennedy. The pair of moderate conservatives - Reagan appointees both - clearly are the bellwethers on this court and seem destined to determine the fate of the presidency when they chime in on the legality of the Florida ruling.

If either or both are inclined to permit the recounts, I'm betting that those recounts will occur, one way or the other. And don't put too much faith in the sanctity of the next deadline that "cannot be missed," Dec. 12th. If a majority of Justices on the Court go for recounts, it seems to me that they also would have to vote for an extension of that deadline in order to permit the counting to be completed. There would be no reason for the court to give the Democrats a right to recount and then not give them the remedy.