Cover Story

A judge a day keeps defeat away

Last week the U.S. Supreme Court, the Florida Supreme Court, a U.S. appeals court, two Florida circuit courts, and others as well all played roles as Al Gore desperately tried to delay his unhappy ending

Issue: "Mad Dash," Dec. 16, 2000

On Dec. 7, exactly one month after Election Day, workers outside the U.S. Capitol started erecting the stands for the inauguration of the 43rd president. But with at least five legal and political brushfires still burning, no one could say with certainty just who that president would be.

Dec. 7 brought 70 minutes of crucial arguments before the Florida Supreme Court. That court, made up of seven Democrats who had previously ruled in Al Gore's favor, was the vice president's last hope for getting the manual recounts he desperately needs in two Democrat-leaning counties.

Meanwhile, in two other Tallahassee courtrooms, Democrats were maneuvering to sweep Mr. Gore into office by sweeping thousands of Bush votes into the trashcan through long-shot lawsuits. At the state Capitol, the Republican-controlled legislature was preparing for a special session to name its own slate of electors during the week of Dec. 10. And in Washington, the U.S. Supreme Court hovered in the background, having already served notice that it was keeping a wary eye on the Tallahassee tangle.

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But if it ended up as a legal logjam, the week started out as a legal and political trainwreck for the vice president. His first blow came in the U.S. Supreme Court, where the justices unanimously vacated a Florida decision extending the certification deadline in that state. The nine federal justices slapped the hands of the Florida Supremes, essentially telling them that their previous judgment in Mr. Gore's favor was incoherent, and insisting that the Florida court reconsider its reasoning and show why the judicially imposed deadline was not a usurpation of legislative power.

That represented a win for Mr. Bush, albeit a narrow one. Without overturning the Florida decision, it cast doubt on the hand count that had narrowed the Bush lead from 930 to 537, and it served notice that the justices would be carefully watching Florida's high court as it ruled in future election battles. Questioning by that court's justices during the dramatic 70 minutes on Dec. 7 showed the Floridians' concern. Florida Chief Justice Charles Wells six times essentially asked lawyers for both sides how his court could avoid stepping on the toes of the U.S. Supreme Court and the state legislature.

The U.S. Supreme Court's decision to vacate the Florida verdict also effectively re-set the vote tally at its Nov. 14 level. That decision provided cover for Florida legislative leaders who announced last week that the legislature would name a slate of electors based on George W. Bush's win at the original, statutory deadline-as well as his win in all other counts and recounts.

The U.S. court's decision was limited, however. Despite their misgivings as to the decision in Florida, the federal Supremes made it clear that they were not prepared to rule on the merits of the case. Just a few hours later, however, in a Tallahassee courtroom, Judge N. Sanders Sauls did rule on merits-and he made it plain that he saw almost no merit whatsoever in the vice president's arguments.

The decision was "a slam dunk for the other side," grumbled a Gore lawyer. "This was as complete a victory as I've ever gotten in a trial," said an incredulous Philip Beck, one of the Bush lawyers. (The two sides combined crammed some 40 lawyers into the small courtroom.) Even Katherine Harris, the secretary of state under Democratic fire for sticking to the statutory deadline for certifying the Florida vote, earned a "complete vindication" in the ruling, according to her attorney, a Democrat.

After a two-day marathon in which the two sides bickered for as much as 13 hours at a stretch, a bleary-eyed Judge Sauls swept aside the Gore arguments one by one. First, the judge made it clear that Democrats were trying to set the bar too low in asking the court to overturn a certified election because of a mere "reasonable possibility" of an incorrect count. Rather, he said, the courts could not interfere in the electoral process unless there were a reasonable probability of a miscount that put the wrong candidate into office.

"In this case, there is no credible statistical evidence and no other competent substantial evidence to establish by a preponderance a reasonable probability that the results of the statewide election ... would be different from the result which has been certified," Judge Sauls noted-and David Boies, the Democrats' lead counsel, didn't need to hear any more. Assuming defeat, he picked up his pen and started making notes for an appeal.

But Judge Sauls had much more to get off his chest.

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