Gore asks Florida Supreme Court to set aside Bush victory

Wednesday, December 6th 2000, 12:00 am

By: News On 6

TALLAHASSEE, Fla. (AP) _ Al Gore asked Florida's highest court Wednesday to set aside George W. Bush's certified victory in the state and allow more counting of disputed ballots to settle the ``fundamental question'' of which candidate got more votes.

``If this state's contest provision is to have any meaning, the meaning must be this: it is a mechanism for determining if state authorities certified the wrong candidate as the winner of the election,'' Gore's lawyers argued in a 50-page brief filed with the Florida Supreme Court.

With the White House at stake, the Democrat asked the high court to overturn Leon County Circuit Court Judge N. Sanders Sauls, who upheld Bush's 537-vote victory and refused to order a hand recount of some 14,000 disputed ballots.

Bush's team asked the court to dismiss Gore's appeal and uphold Sauls' ruling, calling it ``well-reasoned and careful.'' But the Bush lawyers asked the court, if it accepts Gore's case, to first settle an earlier case sent back to it on Monday from the U.S. Supreme Court.

That case involves earlier hand recounts that trimmed Bush's lead in the state from 930 votes to 537. The Florida Supreme Court allowed those recounts to be added to the state's official tally, but the nation's nine justice on Monday vacated that decision and remanded it back to the state court to rethink its position.

``In order to reach these numerous difficult issues, appropriate deference to the Supreme Court and the efficient use of scarce judicial resources both require resolving the remand case first,'' the Bush lawyers argued.

``On the other hand, if this Court declines to hear that contest hearing appeal, or if it affirms that decision on the merits, then this remanded case may well become moot,'' the Bush lawyer offered.

Gore's team believes if some 14,000 disputed ballots from Palm Beach and Miami-Dade counties are counted the vice president would overtake Bush in the statewide tally and win the state's decisive 25 electoral votes.

Sauls ruled on Monday that Gore had failed to make a case why such a dramatic action should be taken nearly a month after Election Day.

With time running out to name Florida's presidential electors by a Dec. 12 deadline, the state high court agreed to hear Gore's appeal immediately, setting oral arguments for Thursday.

On another legal front, Democrats went to court Wednesday in hopes of getting as many as 24,000 absentee ballots thrown out because Republicans were allowed to complete ballot applications.

A trial got underway in the Seminole County lawsuit, where 15,000 absentee ballots were in question. And, in a nearby courtroom, pretrial motions were made in the Martin County case, where 10,000 are in dispute.

Either suit, although not openly embraced by the Gore legal team, had the potential of switching the lead in the race from Bush to Gore since Bush won the absentee ballots by a 2-to-1 margin. Republican lawyers argued in the unprecedented cases that a voter's right to be heard outweighs any technical problem with ballot applications.

The state Supreme Court last month provided Democrats their greatest legal victory to date when it extended by a week the date by which counties could conduct hand recounts.

After the extension failed to put Gore ahead, he challenged the certified Florida results in court, forcing a marathon weekend trial capped by Sauls' dramatic ruling from the bench Monday.

Sauls rejected Gore's request for a manual recount in two counties along with his plea to overturn Bush's victory in the state that stands to pick the next president when it formally awards its electoral votes.

Sauls concluded that Gore had not proven the results of the election would change even if his legal arguments won out and the court conducted hand recounts.

Florida Supreme Court spokesman Craig Waters said the justices had allotted an hour Thursday for oral arguments, 30 minutes apiece. He said lawyers would discuss whether the court should decide the case as well as the issues.

Joseph Lieberman, Gore's vice presidential candidate, said the Florida Supreme Court would be ``the final arbiter'' of the election dispute.

Gore himself said he didn't feel ``anything other than optimistic.''

He made his biggest mention yet Tuesday of the lawsuit in Seminole County. He is not a party to the suit but the case carries enough potential votes to make him president.

The vice president said it appeared that enough applications for potential Democratic absentee votes to give him victory were thrown in ``the trash can by the supervisor of elections there.''

He said the Democratic votes were lost while Republicans were unfairly allowed to correct absentee ballot applications.

Democrats seeking to throw out nearly 10,000 Martin County absentee ballots said Republicans not only tampered with application forms, but also were allowed to remove them from the elections supervisors' office. A judge heard a motion Wednesday to dismiss the lawsuit. The hearing was recessed after 90 minutes to allow lawyers to join the Seminole case.

On other legal fronts:

_ A judge in Pensacola listened as Republican lawyers urged that hundreds of rejected overseas ballots, mostly from military personnel, be counted. U.S. District Judge Lacey Collier promised a prompt ruling.

_ During oral arguments in the 11th U.S. Circuit Court of Appeals in Atlanta, a judge asked Democratic lawyer Teresa Wynn Roseborough why it was constitutional to do manual recounts only in Florida's three largest, predominantly Democratic counties. Roseborough said every vote should be counted. The question came during arguments in a pair of related cases from Bush supporters who want the results of any hand recounts thrown out.

Gore's appeal to the Florida Supreme Court was one of two election-related cases before the high court. The other, returned Monday from the U.S. Supreme Court, sought clarification of the reasoning behind the Florida court's extension of the manual recounting deadline. Written arguments were submitted by both sides Tuesday.

To win his latest appeal, in which he contests the state certification of Bush as the election winner in Florida, Gore must show a reasonable probability that recounts would tip the election to him and that county boards abused their discretion.