What Does Friday Mean to Dubya 'n' Al?

For much of the past week, we've heard increasingly convincing arguments that the Bush case before the U.S. Supreme Court is essentially meaningless. Even if the Court rules in favor of the governor, the logic goes, and agrees that the Florida Supreme Court did not have the authority to extend the certification deadline to allow more ballot counting to take place, the immediate outcome remains the same. After all, Bush came out ahead before and after the recounts, and what is now being battled in Florida's courts is a separate issue — a contest of the final, certified result. So why hasn't the Bush team dropped the case by now?

Apparently, they don't share the conventional wisdom.

How Bush could win the whole shebang

According to briefs filed Wednesday at the Supreme Court, the Bush team views their looming appearance before the Justices as nothing less than a test of the complete post-vote process. Their argument holds that if SCOTUS finds the Florida Supreme Court acted outside its jurisdiction in extending the recount tally deadline — that it does not, in their view, have the power to override preexisting election laws — the Court has simultaneously nullified Gore's contest of the Florida election results.

In other words, if the high court finds in favor of the Bush team's challenge to the extension per se, every vote counted after the original November 14 deadline is rendered moot, and Gore's arguments fall apart. And Bush wins the election.

That's the best-case scenario for the GOP, of course.

There are other, less happy, outcomes on the horizon as well. Most immediately, the possibility that the high court refuses to pass a sweeping judgment on Gore's ongoing contest in Florida. This would effectively pull the rug out from underneath the Republican argument, and could set them up for disappointment down the road.

How Gore could pull this thing off

It's possible, for example, says Barbara Perry, professor of law at Sweet Briar College in Virginia, that the Court could hear the oral arguments Friday morning, confer Friday afternoon and decide to dismiss the case as "improvidentially granted." This neat bit of 19th-century verbiage simply means the Court has decided, for whatever reason, that it is not interested in ruling on the case. If this happens, the case bounces back to the previous court (the 11th district circuit court in Atlanta). And since those judges have already heard the case (and ruled against Bush), unless there is a new twist in the case compelling the court to revisit the arguments, Bush loses automatically. The legal focus would then revert to the Leon County courthouse, where Gore's contest of the election results continues.

There are two further eventualities that could conceivably signal defeat for Bush:

In the first scenario, the Supreme Court accepts the case, hears it all the way through and rules against Bush. In the second, SCOTUS rules for Bush on the pre-certification extension, but refuses to rule on the subsequent contesting of the Florida vote. Back in Tallahassee, if Leon County judge Sanders Sauls rules in favor of Gore and allows the recount to take place, Gore could still win the election.

But wait, there's more

He could, that is, if a very specific chain of events comes to pass. And this is where things get ultra-complicated: If the recount leaves Gore the winner, could the Florida legislature still override the recount tally and name their own Bush-friendly slate of electors? According to Robert Bennett, constitutional law professor at Northwestern University, the answer to that question depends on one's interpretation of a specific statute, which holds that the legislature can become involved only if there is a "failure of the choice process." If one defines Election Day as the "choice process," the legislature is free to jump in any time. If, however, one extends broader parameters to the "choice process" to accommodate the extended deadline, one could argue that whoever wins the recount is the winner of said process, and there is no failure and the legislature cannot get involved. So when would the recount have to be completed in order to avoid charges of failure? The Gore teams hope to have everything wrapped up by December 12, in time for the official naming of electors, but Professor Bennett warns not to lean too heavily on that date. "Nothing is set in stone," he says. "These are, as we all know by now, uncharted legal waters."

It's always possible, of course, that even if Gore wins the recount, Florida election officials (such as Secretary of State Katherine Harris) could refuse to certify his victory. And that would mean another court proceeding in which Gore would be forced to get an injunction ordering the certification to take place.