Bush choice of responses to Florida ruling includes legal options

Gore content to let recounts play out

By Ian Christopher McCaleb
CNN.com

WASHINGTON (CNN) -- The presidential campaign of Texas Gov. George W. Bush is left to overcome its shock and outrage at the Florida Supreme Court's decision to allow handcounts in three state Democratic strongholds, and the campaign may be crafting a new strategy that will both thwart Democratic legal advances without angering an increasingly impatient public.

With his significant legal victory, Vice President Al Gore's strategy is fairly simple: Watch the hand counts continue through the court-imposed deadline of this Sunday evening, and remain relatively quiet through the long holiday weekend, while the Democratic legal team in Florida keeps tabs on Bush's next move.

Bush, on the other hand, now has a wide range of difficult choices to make -- most of which could quash any hopes of a relatively quick end to the election gridlock in Florida.

From the legal end of this complex situation, there are of course, more litigious routes to be taken. Representatives for both sides, bracing themselves for the court's decision, said as much when making their rounds on the weekend talk shows.

VIDEO Bush announced a statement on Cheney, then spoke about the Supreme Court ruling, too (November 22) Play video (QuickTime, Real or Windows Media) Bush attorney Bill Ginsberg responds to the Supreme Court ruling and talks about the campaign's next moves (November 22) Play video (QuickTime, Real or Windows Media) Gore campaign attorney David Boies says the Supreme Court ruling is supported by law (November 22) Play video (QuickTime, Real or Windows Media) Watch all up-to-the-minute video of Election 2000     RESOURCE • Excerpts from the ruling     COURT DOCUMENTS Key court filings in the election cases before the Florida Supreme Court from the court's Web site (These require Adobe® Acrobat® Reader™) • Response by Al Gore on election certification timeframe - November 21 • Response from George W. Bush on ballot standards and certification timeframe - November 21 • Petition from Palm Beach County - November 14 • Initial brief of Attorney General Robert A. Butterworth - November 18 • Brief of Al Gore and Florida Democratic Party - November 18 • Answer of George W. Bush - November 19 • All election litigation filings before the Florida Supreme Court     COURT TRANSCRIPT • Florida Supreme Court hearing on election ballot recount - November 21     COURT RULINGS • Florida Supreme Court Clerk's Procedures for Opinion Release - November 21 (FindLaw)     CASE LAW • Beckstrom v. Volusia County Canvassing Board, Florida Supreme Court, 1998 (FindLaw) • Nelson v. Robinson, Florida District Court of Appeals, 1974 (FindLaw)     RELATED LAWS Florida Code Title IX - Laws concerning Florida Electors and Elections (Florida Legislature Web site) Read more election-related cases in CNN'S Law Library     INTERACTIVE Key players in the dispute Election timeline Previous close elections What they're saying Not ready for Webster's: What is a pregnant chad?     ALSO Tony Clark: Bush keeping touch with hospitalized running mate Campaigns, lawmakers react bluntly to ruling Jeb Bush worries post-election battle may project image of instability Cheney hospitalized with chest, shoulder pains A civics lesson on how Florida justices do their work

Bush's legal representative in Florida, former Secretary of State James Baker, all but confirmed the governor's team was thinking through its legal options when he voiced the Republicans' first reaction to the ruling late Tuesday night in Tallahassee.

Republicans, Baker said, were investigating "whatever remedies we may have to, to correct this unjust result." "I would not be surprised to see the (Florida) legislature ... perhaps take action."

Bush himself blasted the court's action at midday Wednesday by leveling a description of the judicial body designed to mobilize his conservative base. The court, he said, was engaging in judicial activism.

"I was disappointed with the Supreme Court decision. The court over-reached," he said from Austin.

"We believe the justices have used the bench to change Florida's election laws, and usurp the authority of the Florida elections officials," he added.

At present, Bush officially leads Gore in the Sunshine State by a 930-vote margin, according to official but uncertified results provided by the Florida secretary of state's office. This figure includes all 67 counties' tabulation of overseas absentee ballots, due to Tallahassee last Friday.

Should Bush's lead hold, the Republicans will win Florida's 25 outstanding votes in the Electoral College, and Bush will win the presidency.

Gore can keep his battle going as long as the recounts continue. After that, he's got some hard decisions to make if he doesn't gain at least 931 votes. If he still trails Bush when the recounts end, he may decide to step aside and concede the race.

See you in court, again

Unless minds or hearts are changed at the Bush campaign, it appears quite likely that the first response to the court's ruling will be a petition for some sort of legal relief, or clarification.

"The court has decided that selective recounts will continue more than a week after the law says they should," Bush said Wednesday. "It cloaked its ruling in legalistic language... but the court rewrote the law. It changed the rules and it did so after the election was over."

Bush's lawyers have a "bookmark" in place with the federal 11th Circuit Court of Appeals in Atlanta, where they have appealed an earlier federal decision against a Republican-requested injunction seeking to have the recounts ceased.

That federal appeal could be resurrected in short order.

There are also several plans on the table to take the case all the way up to the U.S. Supreme Court in Washington, though, at this point the path to the nation's highest court has not been made clear. There, the Republicans could argue that the Florida high court ruling violated the due process provisions of the U.S. Constitution.

In addition, the Republicans have indicated they may approach the Florida Legislature to overturn the state Supreme Court ruling. Sources told CNN on Wednesday that leaders of the Republican-dominated legislature have been meeting informally, but were trying to keep a low profile.

The legislative leaders believe they are empowered to assign the state's 25 electoral votes to Bush under a federal law detailing the authority of state lawmakers in contested presidential elections.

On the public relations front, the Republicans could question the political affiliations of the Florida high court justices. The court is dominated by Democrats. Such an effort would have to be coordinated with the legislature to contest the court action.

Speaking Sunday, some of Bush's people made mention of the makeup of the court, but did so under the context of hoping for a politically neutral decision based only upon state statutes.

Anticipating such potential tactics by the Bush camp, David Cardwell, a former Florida elections official serving as an analyst for CNN, said Monday that the court is considered moderate, and he suggested the Bush campaign would have a difficult time divining its motives.

"I think it is a very diverse court that represents the diversity of Florida," Cardwell said.

Gore stands pat

With the recounts ongoing, and a standing mathematical likelihood remaining that Gore could squeak ahead of Bush once all three counties report their amended results, Gore needs to just sit still for the next few days.

Then, should he claim the White House, all of the time consumed by the recounts and the legal challenges would seem justified.

Gore's publicity apparatus has attempted in recent days to deflect the public's attention from the vast number of court rulings issued across Florida. Rather, the vice president's people have attempted to keep the recounts front and center.

The vice president himself has played a vital role in that effort, twice extending an offer to Bush that would see him abandon his efforts if the three county hand counts don't yield him a victory.

Though Bush appeared on television just a handful of hours later to rebuff Gore's entreaties, it would be very difficult for the vice president to go back on his word.

"The question is, are Republicans willing to say that? I mean, they've used words like 'election fraud' and 'stealing the election.' Both of those words are not only irresponsible but paint them in a corner of perhaps not being able to accept the fact that they might lose," Kerrey said.

Polls show that though the public is willing to wait the process out, the virtue of patience would seem to be evenly divided. Results of the latest CNN/USA Today/Gallup poll, released Sunday, who 51 percent of respondents were content to wait out the process, while 48 percent thought it had already gone on too long.

But core supporters of each candidate are becoming more and more polarized. The same poll indicated that some 40 percent of those who back a Bush presidency would not accept Gore as the nation's chief executive.

"Each side has set up a scenario where a substantial number of their supporters will not accept the legitimacy of the next president if their man loses," said Catholic University political scientist Mark Rozell told the Reuters news agency before the court issued its ruling. "That's frightening."

Rhetoric on the Republican side has been especially caustic in recent days.

"If it is finished and Republicans in large numbers feel that it was rigged in the sense that you kept on counting until you found a way to win, I think it's going to be very difficult to work with the vice president," said New Mexico Republican Sen. Pete Domenici.

Reuters contributed to this report