Supreme Court Hears Recount Arguments

After five weeks of legal wrangling, the end is finally near.

Lawyers for Vice President Al Gore '69 and Texas Gov. George W. Bush argued for a second and presumably final time before the U.S. Supreme Court yesterday, sparring over the court's Saturday decision to halt the Florida Supreme Court-mandated recount of statewide "undervotes."

After working with Tyler Professor of Constitutional Law Laurence H. Tribe '62 throughout Saturday night to prepare the Gore campaign's brief, lead lawyer David Boies tried to persuade a majority of the court to resume a recount yesterday.

But with pressure mounting for Gore to concede, it was far from clear that Boies had convinced either Justice Anthony Kennedy or Justice Sandra Day O'Connor, who are generally considered moderates but sided with Bush on Saturday.

And with today's deadline for states

to select presidential electors looming, the Gore camp indicated that another court defeat would mean the end of the presidential contest at last.

"If the Supreme Court rules in Governor Bush's favor...that's

probably the end of it," said Sen. Joseph I. Lieberman (D-Conn.), Gore's running-mate.

Both candidates kept a low profile yesterday. Gore gave just a brief wave to television cameras, while Bush said he and his lawyers were cautiously optimistic.

Justices grilled lawyers from both sides during the intense, 90-minute proceedings yesterday, questioning the court's jurisdiction over the case and asking about the differing standards used in the manual recounts ordered on Friday.

The case focused on three issues, similar to those the court discussed in its Dec. 1 hearing on the Bush-Gore dispute, the only other time that it has heard a presidential contest case in its 210-year history.

Theodore Olson, the lawyer representing Bush, said the Florida Supreme Court violated both Article II of the U.S. Constitution, which says state legislatures must decide the procedures for choosing electors.

He said the Florida court also violated a federal law by changing the election's rules after the fact when it extended the original Nov. 14 statewide certification deadline to Nov. 26. Federal law says electors must be chosen under procedures spelled out in state laws passed before Election Day.

He also argued that the Florida ruling Friday violates Bush's 14th Amendment rights, as the differing "voter intent" rules counties use would cause some votes to be given more weight than others.

Boies countered that the Florida court interpreted state law and did not pass new legislation, arguing that the Florida Supreme Court has asked local officials to apply the "voter intent" standard in contested elections since 1917.

But O'Connor and Kennedy seemed skeptical of approving a recount.

O'Connor warned of a "big red flag" in election law that seemingly requires courts to defer to the legislative branch, and Kennedy pointedly questioned recount standards that would vary from "table to table and county to county."

Without a change in one of their votes, the Court's 5-4 decision in favor of Bush on Saturday is likely to stand--and Gore's election challenge will effectively be over.

The justices set no timetable for a ruling yesterday, but given the importance and time constraints of the case, a decision as early as today is possible.

Although Tribe was replaced by Boies to argue before the court yesterday, Gore Deputy Press Secretary Julia M. Payne said the change was made because Boies knows Florida law best, disparaging "horrible Washington rumors" that the Gore team was disappointed with Tribe's performance before the court Dec. 1.

"Since David has been involved in the Florida legal effort since the start, it would obviously be best" for him to argue the Florida case before the court, Payne said. "He and Larry Tribe worked all night on the brief, and Mr. Tribe returned to Florida this morning when the case went to court."

--Wire reports were used in the reporting of this story.

--Staff writer Edward B. Colby can be reached at ebcolby@fas.harvard.edu.