With the presidency at stake, the Supreme Court will assembletoday to seek a constitutional formula for ending the conflict over the lastunsettled electoral votes - Florida's decisive 25.
The nine justices, returning to their courtroom for the second time in 10days to confront the disputed election, will hold a 90-minute hearing startingat 11 a.m. on the case aptly titled Bush vs. Gore. A decision could come todayor tomorrow.
The court has given no sign that it expects to wrap up the electioncontroversy in this one case. But the issues are broad in scope - going to thebasics of how presidential elections are run - and the court's decision onthose issues could swing the Florida vote to either Texas Gov. George W. Bushor Vice President Al Gore.
Outside the court, there appears to be a developing expectation that thecourt is about to utter the last word - or at least set the stage for a quickwindup of the Florida dispute and a prompt answer to the question of who thenext president will be.
In final written arguments yesterday on the eve of the hearing, theopposing lawyers did not directly ask the court to make their candidate thenext president. But they vigorously defended legal positions that would, ifsuccessful, have that practical result.
Bush's attorneys lashed out at the Florida Supreme Court, denouncing itsruling permitting hand recounts as "a recipe for electoral chaos." Thoserecounts were blocked by the U.S. high court on Saturday, by a split, 5-4vote.
The Bush attorneys urged the court to bar the state court from any furtherrole in resolving the election, to undo both of the state court's rulings thatfavored Gore and to roll back the legal clock to the time before those tworulings - a result that would make Bush the Florida winner by 930 votes.
Lawyers for Gore urged the court not to second-guess the Florida court'sinterpretation of the laws of its own state. They argued that the justices'"intervention would run an impermissible risk of tainting the result of theelection in Florida - and thereby the nation."
The state court's decision authorizing recounts of votes, the vicepresident's team asserted, would do no more than make sure "all the ballotslawfully cast" were counted. If that decision were to be upheld, Gore'slawyers are confident that he would win in Florida.
A Supreme Court ruling that barred any further recounts, and barred theFlorida court from adding any new steps to the process, would have the look offinality, even if it is decided by a 5-4 majority.
And it could erode Gore's remaining political support and force him toabandon his quest for the presidency.
Even a ruling against Bush might not go far enough to enhance Gore'schances of catching up. If the court permitted hand recounts to resume, thecrucial question would become one of time - whether there were enough hoursand days left for Gore to make sufficient gains as the calendar advancestoward the voting Dec. 18 by the Electoral College.
And even if Gore did pull ahead in votes before Dec. 18, a complicationcould arise, with the Florida Legislature stepping in - as it intends to do,if necessary - to name a Bush slate of electors.
Besides the consequences of the decision itself, a good deal of publicfascination will focus on what effect a final ruling by the justices mighthave on the reputation of the Supreme Court.
Former Secretary of State Warren Christopher, speaking for the Gorecampaign on CNN's "Late Edition," said he is concerned that the Supreme Courtis "entering the political thicket in a 5-4 posture." Christopher warned that"in the long view of history," such a split "will be seen to weaken thecourt."
So far, none of the justices has used the phrase "constitutional crisis" todescribe what has been happening in Florida in the 34 days since Election Day.But the chief justice of Florida's Supreme Court used those words last week.
Last Monday, three days after holding their first hearing on the Floridadispute, the justices in Washington chose not to force a conclusion at thatpoint. But since then, these things have changed to add urgency to the court'sreturn to the dispute today:
Florida is just one day away from a congressionally imposed deadline tocomplete its choice of presidential electors, if it wants assurances that theywill be accepted when Congress counts electoral votes Jan. 5. The justicesappear to regard tomorrow's deadline as a key factor in the timing of theirdecision.
The nation is one week away from the meetings of 538 electors, who are tochoose the president, and Florida does not yet know whom its 25 electors willbe pledged to support. With Gore now leading among electors, 267-246,apparently neither candidate can reach the needed majority of 270 votes andclaim the presidency without Florida's 25 electors.
This time, the court has agreed to consider a core issue that up to now ithas avoided: the constitutionality of recounting presidential ballots by handto determine a voter's preference because machines did not register a vote forpresident on those ballots. Gore needs more such recounts if he is to overtakeBush's lead in Florida.
The justices' unanimity the last time they acted on the Florida dispute mayhave evaporated, making their task now more difficult. The 5-4 division onSaturday in favor of stopping the counting could be a sign that the courtwould split the same way on one of history's most important constitutionallawsuits.
Florida's Republican-controlled Legislature will meet today in a specialsession to prepare to name its own slate of electors, presumably for Bush, ifthat is the only way to end the dispute.
These developments combine to make today's hearing a decisive moment in thehistory of the presidency and of the court. The court this weekend founditself rushing toward that moment.
When the court agreed Saturday to hear Bush's appeal of a Florida SupremeCourt decision requiring hand-counting to resume, a majority of justicesappeared to have lost patience with the seemingly unending courthouse dramaover the choice of the next president.
Within hours of receiving legal papers from the two sides, the court turneda Bush request to stop the counting into a full-scale appeal, agreed to hearit, halted the vote-counting, ordered lawyers to file final briefs and set ahearing for the earliest available time today: 11 a.m.
The hearing will run until its scheduled close at 12:30 p.m. There will beno television broadcast. A sound recording of the hearing will be passed outquickly to networks afterward, for broadcast, and a written transcript will beavailable on the court's Web site.
As in the first round at the highest court Dec. 1, the justices will bereviewing a decision of the Florida Supreme Court. The earlier decision of theFlorida court - sent back by the U.S. Supreme Court a week ago forclarification - was different from the one under study today.
In that earlier ruling, the Florida court had permitted recounts tocontinue, but only up to a Nov. 26 deadline. That led state election officialsto certify Bush as the winner of Florida, by a margin of 537 votes.Vote-counting stopped at that point. That ruling was put on hold once the U.S.Supreme Court asked for clarification.
In its second ruling, issued Friday, the Florida court ordered a reopeningof hand counting of disputed presidential ballots and extended the recountsstatewide. The decision involved about 43,000 "undercounted" ballots that hadbeen kicked out by voting machines without registering a vote for president.
Bush, believing that the new counting threatened his certified victory,filed his appeal to the nation's highest court. In response, the justicesstopped any further counting and agreed to hear Bush's appeal.
At issue today
Two of the issues are identical to ones the justices examined the firsttime around.
One is whether the Florida Supreme Court, by giving new interpretations toFlorida election laws as they apply to presidential ballots, intrudedunconstitutionally on the power of the state Legislature to set terms forpresidential voting.
The other is whether the state court, by providing those newinterpretations, violated an 1887 federal law that requires that disputes overelectors be resolved under laws passed before Election Day.
The third issue that the court has agreed to hear in Bush's appeal concernsthe constitutionality of manual recounts unless they are done in every part ofa state. The Florida Supreme Court thought it was heading off that complaintby ordering a hand count of all ballots across the state where a machine didnot show a vote for president.
Since manual recounts have been widely used around the nation to settleclose elections, the court may be wary of writing a broad opinion that takesaway the hand recount option from state elections officials.
If the court were to rule that the Florida Supreme Court unconstitutionallyor illegally changed the election rules after Election Day, the justices mightnever need to resolve the constitutional validity of partial manual recounts.Copyright © 2015, The Baltimore Sun