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Charles Bierbauer on the tension surrounding the U.S. Supreme Court

CNN Senior Washington Correspondent Charles Bierbauer  
The spotlight of the U.S. presidential election drama is now back on the U.S. Supreme Court, where CNN Senior Washington Correspondent Charles Bierbauer is standing by.

Q: Attorneys for both Gov. Bush and Vice President Gore must be exhausted after the past weeks of legal wrangling. Now they must file written briefs with the U.S. Supreme Court on Sunday and make oral arguments on Monday. Is this giving them enough time to put together reasonable arguments for such a momentous case?

BIERBAUER: The essence of the case has been laid out repeatedly: Before the courts in Florida, before other federal courts and before this court -- the U.S. Supreme Court -- in the arguments we heard on December 1. The underlying argument has remained pretty much the same throughout, so they're not constructing a new one. The more you argue the issues, presumably, the more familiar you become with them. There's also probably a certain degree of adrenaline running through these lawyers. This is a big deal for them. It's the Super Bowl, the World Series and the Academy Awards all wrapped up in one.

Q: What is at the core of their arguments?

BIERBAUER: In the arguments on both sides, the question of whether the ballots (that registered as undervotes) are valid or not will have considerable bearing. Note that Justice Stevens calls them "legal votes" while Justice Scalia calls them votes of "questionable legality." There are numerous points of division evident in the short statements attached by the justices to their order. They give us some hints of why this will be a particularly harsh and critical set of arguments on Monday.

Q: When the high court announced a stay on recounts Saturday pending further order, Justice Antonin Scalia wrote that "a majority of the court ... believes that the petitioner has a substantial probability of success" in his attempt to have the Florida court's decision overturned. Wasn't that statement essentially tipping the court's hand for the likely final decision?

BIERBAUER: The qualification for getting this stay in the first place was to demonstrate a substantial probability of success. In that sense, Scalia is simply acknowledging that the Bush argument reaches that threshold. But one should not read a five-to-four vote for hearing the case as necessarily a five-to-four vote on agreeing with Bush's argument. Different justices may have different reasons for wanting to hear the case.

Q: December 12 is the deadline for states to officially select their elector slates. Is that firm?

BIERBAUER: The date is not absolute. The election code provides what is called a "safe harbor" for a state to certify its electors. If the matter is resolved six days prior to the Electoral College casting its votes, those electors cannot be challenged. However, there is nothing that precludes the electors from being chosen later. And an electoral slate may even be changed after the Electoral College votes. The best recent example was in 1960, when Hawaii's recount shifted the vote from Nixon to Kennedy -- and that did not happen until the end of December. In that case, it didn't change the election results.


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Sunday, December 10, 2000

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