Is Gore Down for the 5-4 Count?

It was, as befits this labyrinthine post-election maze, a very complicated opinion. But after the smoke clears and the legal pundits have trailed off in exhaustion, the U.S. Supreme Court's book-length decision on Bush v. Gore may signal the death knell for Al Gore's presidential campaign.

Tuesday night at 10 p.m. the nation's highest court released its much-anticipated opinion concerning the hand recount of Florida's undervotes. And for the next 45minutes, the nation's leading legal experts fumbled around with the Court's language, trying to decipher the underlying message in the ruling.

Grudging agreements and stark differences

In the simplest terms possible, the Court reversed the Florida Supreme Court decision; seven Justices (Scalia, Thomas, Rehnquist, Kennedy, O'Connor, and, with reservations, Breyer and Souter) agreed there were constitutional problems with the recount ordered by the Florida court — specifically the requirements of due process and equal protection. Justices Stevens and Ginsberg argued the case should never have been accepted by the Court at all.

Rehnquist, Scalia, Kennedy, Thomas and O'Connor ruled the recount is impossible within the time restraints of the "safe harbor" statute in Florida election law, which requires electors to be chosen by December 12. The dissenters wrote blistering arguments against the majority opinion, maintaining there is a possibility for a recount before a December 18 deadline. The dissents included this passage by Justice Stevens: "Although we may never know with complete certainty the identity of the winner of this year s Presidential election, the identity of the loser is perfectly clear. It is the Nation' s confidence in the judge as an impartial guardian of the rule of law." Justice Breyer wrote, "What the court has done today it should have left undone."

Ambiguous time frame

In a per curiam decision, the Justices also remanded the case back to the state high court with an a cryptic message: "Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work." That work would require the creation of uniform standards for vote counts, the Court explained, as well as time allowing judicial review of those standards. Many observers read that as an indication that there was no way to finish a recount by the December 12 "safe harbor" deadline that loomed just two hours after the court's decision was made public. Or did it leave wiggle room to get the counts in by the 18th? The Gore campaign could only cling to that last, faint hope.

While the legal ramifications of the ruling may not be clear for some time, the political implications were immediately clear: This is spectacularly bad news for Al Gore.