Shifting between questions about their own jurisdiction and the practical difficulties of counting disputed ballots, Florida Supreme Court justices on Thursday sharply quizzed lawyers for both presidential hopefuls in what could be Vice President Al Gore’s last appeal for the White House.
With time clearly of the essence, the toughest questions appeared to be directed to Gore lawyer David Boies as he sought to persuade the court to overturn a trial judge’s refusal to order a hand recount of about 13,000 ballots.
Such a move could reverse the certification of Texas Gov. George W. Bush as winner of the state’s critical 25 electoral votes and prompt the Republican-led Legislature to select its own set of Bush electors. A decision could come Friday, when the potential resolution of key lawsuits in the election controversy may converge and the Legislature is scheduled to begin a special session to choose its electoral slate.
Boies had barely introduced himself at the beginning of the hearing Thursday, a month beyond Election Day, when Chief Justice Charles T. Wells broke in with a concern Wells would return to again and again: Does the Florida Supreme Court have the authority to get involved in this matter of presidential electors?
Citing a Monday rebuff of his own court by the U.S. Supreme Court, which suggested that the state Legislature had “plenary power” over such matters, Wells wondered why was it now appropriate for the justices to step in.
Other justices, though, seemed to worry about more practical problems with Gore’s recount hopes because Florida’s slate of electors apparently must be chosen by Tuesday. While suggesting sympathy to the Gore camp, Justice Barbara J. Pariente asked Boies, “What is the time–we’re here today, Dec. 7–what is the time parameter for being able to complete a count?”
In each instance, Boies sought to argue that the court had the right to overturn Circuit Judge N. Sanders Sauls’ refusal to approve the recount Gore seeks and also that sufficient time remains for a manual recount of the contested ballots.
The Bush camp did not escape unscathed. Questioning of lead Bush attorney Barry Richard hinted at some justices’ unease that thousands of votes had not been examined. In addition, the justices wondered whether Sauls had used an unfairly high standard in deciding that Gore had not proven a recount could swing the vote his way.
A ruling was expected soon, perhaps Friday, raising the prospect of the most eventful day in the monthlong, post-election wrangling because decisions could also come in two other lawsuits, both involving absentee ballots, in Seminole and Martin Counties.
Moreover, the Legislature plans to open its special session Friday.
If Gore loses this case, his attorneys have said they do not intend to appeal to the U.S. Supreme Court.
In Austin, Texas, Bush said he hadn’t watched the arguments. From his residence in Washington, Gore watched the hearing on television with his running mate, Sen. Joseph Lieberman (D-Conn.).
What they saw was a seven-member court, six Democrats and an independent, grappling with difficult legal and practical issues. Among the concerns: the doubts about their jurisdiction, the seeming inequity of just counting ballots from a few counties and not statewide, and the obstacles of fashioning a fair remedy by Tuesday if they agreed that Gore had been wronged.
Inside the Supreme Court chamber, justices aggressively questioned both sides.
Not surprisingly, the attorneys for Gore and Bush disagreed on the justices’ inquiries about whether they have jurisdiction.
Boies said the Florida Supreme Court had every right to step in and order recounts of ballots in Miami-Dade and Palm Beach Counties, where, the Gore camp contends, some votes were never properly counted. While the Legislature should decide the “manner” of the election, Boies said, it does not get to set timetables for election certification.
Bush attorney Richard said the justices’ role in the case should be far more limited.
“This is nothing more than a garden-variety appeal from a final judgment by a lower court that reviewed after an entire, full evidentiary hearing,” Richard said. “This court does not have the ability in this particular case, involving presidential electors, to disregard the statutory scheme and fashion a remedy based upon extraordinary equitable powers of the court set forth in the constitution.”
At various moments during the hearing, which lasted more than an hour, some justices wondered aloud about details of a recount. What standard should be used to call for a recount? Had Sauls looked at any of the disputed ballots? How long might a recount of 13,000 ballots take?
Gore’s lawyer insisted a recount by Tuesday was still possible. “We believe these ballots can be counted in the time available,” Boies said. “Obviously, time is getting very short. We have been trying to get these ballots counted, as this court knows, for many weeks now.”
Three-person canvassing boards in three South Florida counties had examined ballots at a rate of 250 to 300 ballots an hour, Boies said. Outside the court, Dexter Douglass, another Gore lawyer, suggested that the facilities and staff for a quick counting operation are ready in a public building in Tallahassee even now.
The justices paid special attention to Miami-Dade County, where some 9,000 punch card-style ballots that could not be read by machines have not been examined by hand. Gore aides contend those ballots may include “dimpled” or “dented” ballots that reveal a clear intent of voters in the presidential race even though the holes weren’t fully punched out. Bush aides say those ballots are blank or cannot be appropriately studied to “divine” some ambiguous intent of the voter.
During the trial, Sauls never opened the questioned ballots. Some 1.1 million ballots–the disputed ones and many more undisputed ones–were trucked to Tallahassee with great fanfare, but Sauls turned down Gore’s request that a judge look at them.
Justice Major B. Harding wondered why the Gore lawyers didn’t insist that the judge at least look at one ballot. “Did anyone ever pick up one of the ballots and hold it up and show it to the judge and say, `This is an example of a ballot which was rejected but which a vote is reflected?'”
No, Boies acknowledged. “Not an individual one, although we did tender them in evidence and we did ask him repeatedly to look at the ballots as part of the evidence,” he responded.
At least one justice, Harry Lee Anstead, seemed incredulous that a trial’s evidence–the questioned ballots, in this case–could go unstudied by the judge.
“Isn’t it highly unusual for a trial court to admit into evidence certain documents that one party claims will be controlling, with reference to the claim they bring to the court, and yet never examine those documents before making their decision?” Anstead asked during a relatively testy exchange with Richard.
“I think that the trial court theoretically admitted the ballots,” Richards began before Anstead broke in.
“The trial court either did or did not admit the ballots into evidence,” Anstead said. “Did the trial court admit those into evidence?”
“My recollection is that the trial court did,” Richard agreed.
In another series of questions that suggested an inclination by some toward recounting ballots, Pariente questioned Richard on whether Sauls had used an appropriate standard for determining whether a look at the questioned ballots would affect the election’s outcome.
“You keep on using the language that there should be a reasonable probability of a change, and you’ve said that, again, we’ve got to stick to the statute,” Pariente said. “My reading of the statute says `sufficient to change or place in doubt the results of the election.’ `Place in doubt’ is a different standard than `a reasonable probability of different result.’ Do you agree with that?”
Richard answered that he wasn’t quite sure. “But I don’t think we need to address that issue at this time because there was virtually no evidence in the record … of any single voting machine that misoperated. There was no evidence of any voter whose vote was not properly recorded.”
Still, even with those moments in which some justices seemed sympathetic to a possible recount, they also repeatedly asked about a central inconsistency that might create: Why the ballots in Miami-Dade and Palm Beach should be recounted, if those in other Florida counties–especially those with similar punch card machines–were not.
Justice Peggy Quince asked, “Is there something different about Dade, Broward and Palm Beach, and their use of the punch card, than the 17 other counties that also used punch cards?”
The Gore team’s answer was simple: That was where the ballots were contested. Elsewhere, they were not. The Bush camp could have mounted their own contests elsewhere, Boies said, but they chose not to.
Even as the state’s highest court began weighing its choice Thursday afternoon, other legal cases brought by Democrats other than Gore could still affect his fate.
In Leon County Circuit Court here, two judges heard on Thursday closing arguments on the validity of absentee ballots from Seminole and Martin Counties. Democratic plaintiffs contend that thousands of absentee ballots should be tossed out because of irregularities that favored Republicans. Rulings in both cases could come as early as Friday.
