TALLAHASSEE, Fla. (Nov. 20) - With the race for the presidency in the balance, Florida's Supreme Court peppered lawyers with questions Monday on the legality of manual recounts under way in selected Democratic-leaning counties.
``We have a longstanding policy ... that says the real interests here are the voters,'' declared Chief Justice Charles T. Wells, who asked repeatedly how long the state had to certify a winner and still have its voice heard when the Electoral College meets to pick a president.
The candidate who gains those 25 electoral votes - either George W. Bush or Al Gore - stands to become the nation's 43rd chief executive.
The proceedings were carried live on the major television networks, providing Americans with a brief lesson in constitutional and election law. There was no indication when the justices might rule.
Democrats said Dec. 12 was the answer to Wells' oft-asked question, six days before the Electoral College meets. But Joe Klock, representing Florida Secretary of State Katherine Harris, said she was bound by a state law that required her to certify a winner by seven days after the Nov. 7 election.
At the same time, asked by Justice Harry Lee Anstead whether the seven-day limit was absolute, Klock conceded, ``Of course it's not absolute.''
In legal skirmishing that stretched to two and one-half hours, lawyers and the justices ranged over a variety of issues in Florida's contested election. The hearing played out while recounts were under way in Miami-Dade, Broward and Palm Beach Counties, all Democratic jurisdictions where Gore hopes to overtake the 930-vote lead Bush holds in the contested election. As the arguments ended, ongoing recounts showed Bush gaining 134 votes so far in the three counties combined.
The arguments touched on the possibility of a statewide recount, on the standards in use in the recounts, on the acknowledged contradictions in Florida state law and on the conflict between Florida statute and federal law.
There was argument, as well, over voter intent - an issue of paramount importance, given the number of questionable ballots in the recount counties.
``The court is certainly aware of the historic nature of this session,'' said Wells as the afternoon session began, ``and is aware that this is a matter of utmost and vital importance to our nation our state and our world.''
Two former secretaries of state, Warren Christopher and James A. Baker III, sat listening intently in their capacity as representatives of the two White House rivals.
``God save these United States, the great state of Florida and this honorable court,'' intoned the high court's marshal, Wilson Barnes, as the justices - five men and two women - entered the chamber.
Democrats asked the court to endorse the recounts and to place them under a uniform standard. Bush's lawyer, joined by Klock, argued they should be stopped.
Harris had been ready to declare Bush the winner of Florida - and likely the presidency - on the basis of Election Day votes certified last Tuesday, subject to amendment only by overseas absentee ballots counted on Friday.
Her edict was halted by the high court late last week, pending Monday's arguments and any subsequent ruling on the subject.
There was no timetable for a ruling by the state Supreme Court.
The justices played an active role from the outset on Monday, none more so than Wells, a 61-year-old Democrat who presided.
Over and over, he asked at what point the state's 25 electoral votes would be in jeopardy. His questions at one point sketched a scenario in which recounts would continue, perhaps into December.
``Tell me when Florida's electoral vote would be in jeopardy,'' Wells said to Bush lawyer Michael Carvin, a question he had earlier asked of Paul Hancock, lawyer for the state's Democratic attorney general.
``Clearly it's in jeopardy now,'' said Carvin, but then Wells prodded him to support that contention.
Later, Wells seemed to suggest that Harris should be permitted to certify a winner so Democrats could then have time to challenge her appointment of the state's electors - and still leave time to resolve the dispute before the Electoral College meets.
``Why isn't it correct that we are jeopardizing with each passing day, Florida's'' vote in the Electoral College, he said, ``if we don't allow the certification'' of a winner.
David Boies rebutted that Republicans would jump on any certification as evidence that the election was settled and ``over with.''
In case of an adverse ruling, he also urged the justices to make sure that Harris didn't appoint electors pending a challenge by Gore.
The justices showed their impatience with carefully prepared lawyerly arguments.
In the opening moments of the arguments, Wells asked Hancock to skip the general rhetoric and get to the legal points in contention.
A few moments later, after Hancock said it was physically impossible to certify all election results within the seven days mandated in one section of state law, Justice Barbara Pariente interrupted to ask what evidence there was to support that contention.
``I don't know that there's any evidence in the record,'' he replied. ``I think it's intuitive.''
Hancock urged the court to use ``the full reach of its authority to establish procedures.''
The goal, he said, should be to come up with an election that is ``fair, that is perceived as fair to the world and in fact is fair, that it counts the vote of all people who attempted to exercise that vote.''
Justice Major Harding asked whether there was any current law to guide the court's decision on allowing recounts and setting standards for them - or whether the justices would have to come up with ``some inspiration'' and put it down on paper.
``There is some information in the record, but to be completely candid with the court I believe there is going to have to be a lot of judgment applied by the court as well,'' said David Boies, a well-known courtroom lawyer added recently to Gore's legal team.
Isn't that the Legislature's job? Harding asked.
``I don't think that's what they have done,'' Boies replied.
Pariente asked whether selective recounts were unfair to voters who live in counties where the ballots were tabulated only once - a point that Bush has made in his legal filings.
``Any candidate could have requested a recount,'' Boies said, noting that no county rejected a recount petition.
Boies said Gore would accept a statewide recount ``We believe the court has the power to order that,'' he said.
``Aren't we just adding another layer if we request a statewide recount?'' asked Justice Peggy Quince.
Boies said yes, but added the most populous counties are already recounting their ballots.
A transfixed nation turned its eyes to Florida's Supreme Court, where armies of lawyers for Al Gore and George W. Bush laid claim to the presidency Monday even as weary election workers recounted votes in three Democratic-leaning counties - wondering if their labor would be for naught.
After 13 days of suspended political animation, lawsuits and countersuits, ``chads'' and ``pregnant chads,'' the marathon presidential election may come down to this: Seven justices, all appointed by Democratic governors, were asked to determine whether the GOP secretary of state can certify Bush's minuscule lead without accepting votes counted by hand.
In a capitulation by Democrats, Attorney General Bob Butterworth, a Gore ally, said counties should count overseas absentee ballots from military personnel even if they were not postmarked Nov. 7 or before, as long as the ballot was otherwise proper. Democrats were criticized over the weekend for aggressively challenging ballots that had no postmark from military outposts.
The tally of overseas absentee ballots stretched Bush's official lead to 930 votes.
The historic Supreme Court hearing opened with a court marshal bellowing, ``God save these United States,'' and the justices got right down to business - peppering lawyers with questions of law in a case riddled with political loopholes and landmines.
Chief Justice Charles Wells pressed both sides about how long the state might wait to certify its election results without jeopardizing its participation in the Dec. 18 vote of the Electoral College. His questions sketched a scenario in which recounts would continue, perhaps into December.
``Tell me when Florida's electoral vote would be in jeopardy,'' Wells said to Bush lawyer Michael Carvin. He had asked the same question of Paul Hancock, lawyer for Butterworth. Wells went one step further when questioning Joe Klock, lawyer for Secreatary of State Katherine Harris.
``Why wouldn't it be in this unique circumstance a better thing to do to wait'' on certifying vote totals '' unless there is a specific reason that is going to prejudice Florida's certificiation to the Electoral College,'' Wells said during a nationally televised hearing.
Justice Barbara Pariente asked whether selective recounts were unfair to voters who live in counties where the ballots were tabulated only once - a point that Bush has made in his legal filings.
Gore lawyer David Boies said ``there is going to have to be a lot of judgment applied by the court'' to set uniform standards for approving ballots by hand, but he asked the court to do justices that. GOP attorneys had their turn, which they used to suggest that Democrats were twisting Florida's law for political purposes.
``They seek to rewrite the statute to create a scheme that serves their personal problems or conveniences,'' Carvin said.
Miles from the legal wrangling, hundreds of workers in three Democratic-leaning counties continued manual recounts that have yielded Gore surprisingly few new votes. In one county, at least, Bush appeared to be holding his own. ``There's been very little change,'' in the margin between the two men, said Judge Charles Burton, the head of the Palm Beach County canvassing board.
Down the coast, Broward County elections supervisor Jane Carroll said the long-count recount was taking its toll on workers.
``I feel like I'm incarcerated,'' she said, ``with lunch and dinner brought into me and six attorneys sitting across from me the entire day.''
The candidates, too, are prisoners to the stalemate in Florida, where the winner gets 25 electoral votes and keys to the White House. Aides said the presidents-in-waiting were anxious, but focused on this critical legal step - with little discussion under way about what might happen if they lose the Supreme Court fight.
``Feeling great!'' the Texas governor told reporters summoned to the Capitol in Austin to watch him head to work.
Gore opened a satellite address to a family-policy conference with a scripted glibness. ``I appreciate this chance to speak to the Florida Supreme Court,'' the vice president said.
The conference was scheduled for the summer, but Gore moved it to avoid conflict with the campaign season. ``I just assumed by November 20 the election would be over with,'' he said with a forced chuckle.
At the Supreme Court, a carnival atmosphere prevailed outside the domed and columned court building. Protesters, some whose causes seemed utterly unrelated to the presidential election, wandered past television cameras. Bush supporters carrying signs such as ``Enough is Enough. America has Spoken. Bush-Cheney.'' Butterworth issued his directive on overseas ballots while the hearing was still underway.
Gore's advisers were hopeful of victory, though pragmatic enough to tell fellow Democrats they likely would urge the vice president to give up without a protracted legal fight if the Supreme Court rejects manual recounts.
Bush's team worried that clear approval of recounts and liberalized standards for reviewing ballots would give Gore all the ammunition he needs to erase the Texan's narrow lead. Bush's headquarters in Washington has received dozens of calls from Republicans fearing the court will rule against Bush and pave the way for Gore's victory.
Neither side ruled out further legal action, including a U.S. Supreme Court appeal, if they lose.
Here's how things got this far:
Gore narrowly won the nationwide popular vote and holds a slight edge over Bush in the all-important Electoral College. Neither candidate will reach the required 270 electoral votes to be declared the nation's 43rd president without Florida's 25 electors.
A statewide machine recount of 6 million ballots cast trimmed Bush's lead from 1,784 to 300.
Gore had picked up 127 votes in manual recounts by midday Monday, which if counted would reduce Bush's lead to 803.
Polls show the public split on whether the turmoil in Florida would eventually produce a fair and accurate outcome. Still, more than 80 percent of Americans said they would accept either Gore or Bush as the ``legitimate president'' in the end.
The Supreme Court case was focused on Broward, Palm Beach and Miami-Dade counties, where more than 1.5 million votes were cast, a majority by Democrats. Gore needs the Supreme Court to approve the recounts and give county officials wide latitude for determining the intent of voters who cast disputed ballots.
In Broward County, Republicans complained that the majority-Democratic canvassing board changed the rules to find more Gore votes. A judge who recommended the rules changes excused himself from the case Monday, bowing to GOP officials who said he was predisposed to back Democrats.
The board had been setting aside any ballots that did not have two corners poked out of the chad - the scrap of paper in a punch-card ballot. But all three board members agreed Sunday to re-evaluate ballots with a slight indentation, just one corner of the chad poked out or other questionable chads.
In Palm Beach County, it was Gore's allies who were complaining. They said the board was being too strict in its determination of what votes to approve. With a quarter of the precincts hand tallied, Gore had picked up just a handful of votes - dispiriting to Democrats.
Also in Palm Beach County, a county judge ruled that he did not have the authority to order the new election sought by residents who contended they were confused by the county's ballot.
Tensions flared to Miami-Dade County, where officials began a hand count that could drag into December. ``I do not expect observers to be arguing or putting into this process their personal opinion,'' elections board chairman Lawrence King told GOP and Democratic operatives on hand to watch the vote-counting.
WEST PALM BEACH, Fla. (AP) - Al Gore has gained a net three votes in Palm Beach County so far in a hand recount of ballots, according to a partial tally with one-fifth of the job done.
Gore's slim gain so far in the Democratic-leaning county came after 103 of 531 precincts were hand counted since Thursday night. The Democrat is hoping to gain votes from the manual recount in order to erase a 930-vote lead Republican George W. Bush holds in the official statewide tally.
Palm Beach voters cast 462,350 ballots in the Nov. 7 election. About 30,000 were thrown out during the initial machine counts, including about 10,000 ballots on which no vote was registered by the machines. Those so-called ``undervotes'' are the ballots getting the closest scrutiny during the hand recounts - and causing the most objections.
Democratic lawyer Dennis Newman, overseeing the Palm Beach recount, said there were 276 dimpled ballots for Gore and 73 dimpled ballots for Bush that weren't counted. The ballots - showing an indentation, but no punch-through - have been set aside in case a judge orders the board to change its standards of determining whether a vote is valid.
Meanwhile, residents who complained they were confused by Palm Beach County's ballot design said Monday they would appeal a judge's denial of their request for a new election.
``We didn't have the opportunity to show the people of the world that we're not crazy down here, that the ballot was invalid,'' said Patrick Lawlor, who represented the residents in their lawsuit.
Palm Beach Circuit Judge Jorge Labarga ruled he did not have the authority to order a revote. He canceled a hearing that had been scheduled to hear from experts and voters who said they either punched two holes in the ballot or voted for the wrong candidate - Reform Party contender Pat Buchanan instead of Gore - out of confusion.
Andre Fladell, one of several plaintiffs, said the ballot was illegal and that he would appeal.
``If we the people are expected to adhere to the rule of law or be held responsible when we violate it, then so should the government be held responsible,'' he said.
Labarga said states have the authority to enact laws to protect citizens' rights to vote, and that also provide a way to deal with situations where that right has been infringed.
However, lawyers cited no cases in which a revote was done for a presidential election.
``The plaintiffs in this action cite no case law authority in the history of our nation, nor can the Court find any, where a revote or new election was permitted in a Presidential race,'' Labarga wrote.
That should come as no surprise, he said, because the U.S. Constitution clearly states the presidential ``electors'' must be elected on the same day throughout the nation - the first Tuesday after the first Monday in November, every fourth year.
AP-NY-11-20-00 1640EST
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State GOP lawmakers: We may have deciding vote
�New York Times
� St. Petersburg Times, published November 19, 2000
TALLAHASSEE -- Republican state lawmakers are homing in on an obscure, never used federal statute that, they contend, could offer them a decisive hand in choosing Florida's precious 25 electors if the normal voting process somehow leaves the outcome unclear.
Ordinarily, presidential electors are chosen through the popular vote and are expected to cast their ballots for the winning candidate. But Republican leaders, who control both houses of the state Legislature, say they are examining a federal law that they believe gives them the power to seat electors if the outcome of the popular vote in Florida remains unclear. The development was first reported Friday by the Pensacola News Journal and the Wall Street Journal.
"The specter is raised," said Tom Feeney, a state representative from Oviedo expected to be elected as speaker of the State House on Tuesday. "If the courts don't allow the executive branch to do their duty, then at some point we would have to review our constitutional responsibilities."
"At this point we're watching and waiting," Feeney added.
Electors must be seated by Dec. 12. Republicans and Democrats interviewed Saturday said they hoped the matter would be resolved long before then. But if that did not happen, Republican lawmakers said Saturday that they could invoke the federal statute. They were far from certain exactly how to apply the law, and they said they were looking at retaining election law experts to help them wade through the statute.
In fact, only one thing seemed certain Saturday: The Republicans were sorely disappointed that the Florida Supreme Court on Friday enjoined the secretary of state, Katherine Harris, from certifying her state's vote -- an act that could have put Florida's 25 electoral votes in the Bush camp, pending the outcome of other lawsuits.
Johnny Byrd, a Republican state representative from Plant City, added, "If the secretary of state is still under an injunction at noon on Tuesday, at that point it's just a question of when to pull the trigger."
The trigger he is referring to is the Republicans' interpretation of Title 3, Section 2 of the U.S. code.
"Whenever any state has held an election for the purpose of choosing electors and has failed to make a choice on the day prescribed by law," the law reads, "the electors may be appointed on a subsequent day in such a manner as the Legislature of such state may direct."
The law has never been used, and by all accounts it is most likely to invite a bitter political tussle.
"To end an election with the Legislature taking over for the will of the people, that would be politically very risky," Lois Frankel, a Democratic state representative from West Palm Beach, said Saturday.
Indeed, she added, she was doubtful of the prospect. "I can't even imagine why they would want to go there," Frankel said. "It almost leaves me speechless."
The state Republicans' latest announcement was seen by some, though, as political posturing designed to speed up a political compromise. The fact that the Legislature is considering intervening may accelerate the process of reaching a comprehensive compromise, said John Shubin, an election lawyer from Miami.
