Frenetic recount stilled by high court order

<br>With the Florida election dispute headed back to a divided U.S. Supreme Court, a lawyer for Al Gore said Sunday the Democrat needs to force the counting of more ballots or ``that's the end of the

Sunday, December 10th 2000, 12:00 am

By: News On 6

With the Florida election dispute headed back to a divided U.S. Supreme Court, a lawyer for Al Gore said Sunday the Democrat needs to force the counting of more ballots or ``that's the end of the road.''

David Boies, Gore's lead lawyer, stopped short of saying whether Gore would immediately concede the election if he lost in the Supreme Court. But in a round of interviews on the morning TV news shows, he made clear the high stakes of Monday's hearing.

``If no votes are counted, then I think that's the end of the road,'' Boies told Fox News.

The nation's nine justices ``have the power to decide this,'' Boies added on NBC, seeking to assure the nation the month-old election dispute was nearing finality.

But the Gore lawyer declined to say whether, if Gore lost in the high court case, the vice president might delay a concession until another case seeking to throw out Florida absentee ballots works its way through appeal.

``I'm not going to say what's going to happen,'' Boies said.

Meanwhile, George W. Bush's camp answered criticism that they were afraid that more counting would lead to a Gore victory, saying the Florida Supreme Court erred in ordering as many as 45,000 disputed ballots to be counted before the election is decided.

That order was temporarily set aside by the U.S. Supreme Court with a 5-4 decision on Saturday.

``We're not afraid to let every vote be counted,'' said James Baker, the former secretary of state and Bush's point man on the Florida dispute. ``The issue is what is every legal vote.

``You normally don't apply a remedy until you've established that someone is entitled to that remedy,'' he told NBC.

Democrats, whose hopes for a Gore victory have been on a legal rollercoaster, suggested Sunday that the U.S. Supreme Court needs to be the final arbiter _ not the Florida Legislature or Congress.

``I believe that it probably is the last word and it is the last chance to have this issue not go to the United States Congress,'' Sen. Robert Torricelli, D-N.J., said on Fox.

Lawyers for Bush and Gore were preparing for the Monday showdown in the nation's highest court. Two veteran appellate lawyers were handling the arguments _ Theodore Olson for Bush and Lawrence Tribe for Gore.

At issue now is the fate of more than 43,000 so-called undervotes _ ballots in which no selection for president was read by voting machines. The Florida Supreme Court ruled 4-3 on Friday to count the ballots as Gore requested; the U.S. Supreme Court temporarily suspended the ruling on Saturday so it could hear the case.

Hundreds of ballots were counted before the high court order on Saturday.

When the counting stopped, an unofficial Associated Press tally put Bush's lead over Democrat Al Gore at 177 votes statewide out of 6 million ballots cast. A Florida Supreme Court order on Friday added votes Gore gained in manual recounts in some counties, placing Bush's lead at 193 votes.

The state judge named to oversee the recounting had set a midday Sunday deadline to end the tallying of ballots with no machine-readable presidential vote.

The state's 25 electoral votes will determine the 43rd president and end the deadlock from the Nov. 7 election.

Democrats and Republicans flooded into Florida on Saturday to monitor the count and jockey for television time. Bush sent campaign chairman Don Evans and chief strategist Karl Rove to Tallahassee, Fla.

Gore spokesman Chris Lehane said the vice president looked forward to Monday's hearing ``because we are confident that our argument is based on the fundamental principle of one person, one vote.''

But Baker pointed to Justice Antonin Scalia's unusual accompanying statement to Saturday's decision, which suggests Gore faces a difficult case.

``It suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success,'' Scalia wrote.

In the dissent, Justice John Paul Stevens said, ``To stop the counting of legal votes, the majority today departs from'' rules of judicial restraint.

Ruling to stop the count were Scalia, Chief Justice William Rehnquist and Justices Anthony Kennedy, Clarence Thomas and Sandra Day O'Connor. All five were named to the bench by Republican presidents.

Joining Stevens in dissent was Justice David Souter, appointed by Bush's father in 1990, and Clinton appointees Stephen Breyer and Ruth Bader Ginsburg.