Reporters and others try to keep warm in front of the Florida Supreme Court
Their task? First, to convince the Florida Supreme Court to formally accept their appeal. Then, to persuade the Justices that in ruling against Gore's contest of Florida's election results, Leon County Circuit Court Judge Sanders Sauls abused his judicial discretion and relied upon a flawed legal standard, misinterpreting Florida's election law, which, according to Gore lawyers, specifically allows recounts in very close elections. "If this state's contest provision is to have any meaning," the Gore brief states, "the meaning must be this: It is a mechanism for determining if state authorities certified the wrong candidate as a winner of the election."
That's a tough sell. Judges, particularly within one state, are generally uneasy about passing down what could be perceived as a personal verdict — in which one court takes another to task for essentially misunderstanding the law. But that's just what the Gore team hopes the Florida high court will do, and in briefs presented Wednesday, David Boies et al. have outlined their logic: Because Judge Sauls based his ruling on cases from 1974 and 1982 — precedents that were overwritten by another case less than a year ago, in a decision easing the prerequisites for a recount — his decision should be rejected.
Bush team urges dismissal
The Bush team, in briefs also filed Wednesday, hopes the Florida Supreme Court will choose a path of less resistance, either by refusing to rule and deferring to Judge Sauls' ruling, or by actively agreeing with Sauls' "well-reasoned" decision to reject Gore's contest.
If Florida's Justices rule against Bush, his lawyers are very likely to file an emergency appeal to the United States Supreme Court, where the nine Justices might or might not accept the case. In the meantime, in the event of a Gore victory, there would likely be a mad rush of vote counting before the December 12 elector-selection deadline. A Gore loss here, however, could be the beginning of the end: The vice president has indicated he might not appeal if he loses in Florida's high court (though it's not clear if he means this case or other actions, such as the Seminole County case, which may well end up before the same panel).
SCOTUS is watching
And, as if the Florida Supreme Court didn't already have its hands quite full, the Justices will undoubtedly cast worried glances over their shoulders as they consider the Gore appeal. As everyone is well aware, the country's highest court has fixed a keen eye on the Florida seven: Monday, the U.S. Supreme Court delivered a bit of a wrist-slap to its Florida colleagues, "vacating" their decision to extend a certification deadline, sending the opinion back for "clarification." And so the Florida judges are also accepting supplementary briefs from both the Bush and Gore camps arguing whether (and under what legal standards) the court should reissue its previous opinion.
Elsewhere Wednesday, the Bush legal team sustained a minor blow: The 11th Circuit Court of Appeals ruled against them, rejecting Bush's claims that Florida's recounts are unconstitutional. GOP lawyers had hoped a ruling in their favor would add momentum to a growing swell of Bush legal victories, and might even serve to counteract a Gore victory in the Florida Supreme Court.
But now that the Atlanta federal court's decision has stymied those plans, the Bush team (like their Democratic counterparts) looks to the Florida high court with a mixture of apprehension and excitement — their decision, after all, could be the end of the very long road that has been the 2000 election.