TIME EUROPE
December 18, 2000, Vol. 156 No. 25
Running Out of Time
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Within hours of the decision, Bush lawyers asked the U.S. Supreme Court to intervene. But when there was no immediate word from Washington, the Circuit Court in Tallahassee got right to work organizing the recount. Judge Sauls, who had ruled that the new tally should not take place, recused himself from the process, and the job fell to Judge Terry Lewis. For the task of ruling on 45,000 ballots from 67 counties in three days, the indefatigable Lewis was probably a good choice. During the Martin County contest case, he announced one evening to the exhausted lawyers before him that he intended to go until midnight and then reconvene at 7 a.m. "Or do you want to sleep in and make it 7:15?" he added dryly.
By Friday evening, fully in command of his new case, he had already hauled the attorneys into his courtroom for a hearing on how the recount would be conducted. The Bush team's Phil Beck, a top litigator from Chicago, immediately started raising objections, contending that the judge needed to hear evidence on what criteria to use when reading punch-card ballots. At issue were the now-familiar questions that have plagued Florida courts and election officials for weeks: Do we count hanging chads, pinhole chads, dimpled chads, pregnant chads? On this point the Florida Supreme Court didn't offer much help. Sticking to the letter of the law, the high court offered only this guideline from a Florida statute: "A vote shall be counted where there is a clear indication of the intent of the voter."
Beck also complained that in Miami-Dade County, votes that had already been counted had become mixed in with the undervotes, creating the danger that some ballots would be counted twice. At one point Beck suggested that the most reliable and legally proper procedure would be for Judge Lewis to evaluate all the ballots himself. "What's your plan B?" asked the judge. Finally, Lewis said he would hear no more verbal objections and told the Bush lawyers to put their problems in writing.
After an adjournment, the no-nonsense Lewis was back in court by 11:30 p.m. to announce his plan. Undervotes from Miami-Dade, which had already been trucked to Tallahassee by order of Judge Sauls, would be counted by Lewis's court. In most other counties that still needed to count undervotes, the job would be done locally by the canvassing boards that run elections. Bush attorneys were concerned that there would be different standards for judging ballots in every county. Lewis said that observers from both political parties could watch the process and file written objections with the court but could not verbally challenge judgments on individual ballots and thus slow down the counting.
By Saturday morning at 8 a.m., teams of officials had already started wading through the 9,000 Miami-Dade undervotes at the main public library in Tallahassee. And canvassing boards across the state were trying to figure out the best way to separate the undervotes from the rest of the ballots. Then came the dramatic ruling from the U.S. Supreme Court that the new count must stop, at least temporarily.
The 5 to 4 high court vote was a classic conservative-liberal split. Backing Bush's appeal were Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Sandra Day O'Connor. On Gore's side were John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter. The high hurdle Gore now faces was apparent in the brief concurring opinion written by Scalia. "The issuance of the stay," he wrote, "suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [George W. Bush] has a substantial probability of success... The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud on what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."
Court watchers felt sure that the most conservative of the Justices — Rehnquist, Scalia and Thomas — would stay with Bush in this week's deliberations. Gore's only hope, they speculated, was to win over Kennedy or O'Connor, two swing voters who often tip the balance between a liberal or a conservative decision.
If Gore loses in the Supreme Court, he's expected to concede the race. He'll be out of options at last. If Bush loses, the recount will resume and the contest will go on. Then if Gore pulls ahead in the vote, will Bush stand down? Probably, since the recount would have been sanctioned by the Supreme Court. But nothing is a sure thing in this election. It's possible that the Florida legislature would carry out its threat to name its own competing slate of Bush electors, setting off a constitutional crisis. And some Republican leaders in the U.S. Congress are sounding militant. Referring to the Florida Supreme Court decision, Tom DeLay, the second-ranking Republican in the House of Representatives, declared that "this judicial aggression must not stand." The Florida court, he said, "has squandered and violated the trust of the people of Florida in an attempt to manipulate the results of a fair and free election."
Only one thing was certain at week's end. Perhaps the most fascinating chapter in U.S. political history was still being composed. Maybe the final draft should have been written by the voters, but it looked as if it would be written by nine judges with the future of the U.S. presidency resting squarely on their shoulders.
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