Mindful of the extraordinary dispute before it, theFlorida Supreme Court pressed lawyers for Al Gore and George W. Bush yesterdayto answer whether they should intervene in the contested presidential electionand resolve the case by Tuesday when the state's vital 25 electoral votes mustbe awarded.
But the exchange between the seven justices and attorneys for the vicepresident and the Texas governor suggested that the legal and practicalrealities facing them might be tough to overcome.
At the outset of this historic hearing, the court confronted the questionof whether it belonged in this fight over presidential election ballots atall. Gore contends that some 14,000 ballots from Palm Beach and Miami-Dadecounties, if counted properly, could change the outcome of the race - and theoccupancy of the White House.
Before the court was Gore's appeal of Leon County Circuit Judge N. SandersSauls' order Monday that rejected the vice president's challenge to the statevote count that proclaimed Bush the winner by 537 votes out of 6 million cast.Sauls rejected the Gore team's request for a manual recount because he saidthey did not prove that there was any misbehavior by election officials, andbecause a recount wouldn't alter the election's result.
The last time the Florida Supreme Court court heard a case involving thiscontested election, it issued a ruling the following day.
Neither side yesterday completely ruled out an appeal of the high court'sruling, though Gore's lead lawyer, David Boies, admitted later that he wouldbe hard-pressed to come up with grounds to do so.
Boies had not yet begun his argument before the court's chief justice,Charles T. Wells, expressed concern over a ruling Monday from the U.S. SupremeCourt that questioned the court's legal basis for its Nov. 21 review of thepresidential election contest. It was a theme repeated throughout the68-minute hearing.
The justices also focused on these key issues: whether a statewide recountwas required and how a recount could be accomplished without jeopardizing thestate's participation in the Dec. 18 meeting of the Electoral College.
Boies assured the court that it had the authority to intervene. Hereiterated the vice president's plea to initiate an immediate hand count ofthe contested ballots before the Tuesday deadline for selecting stateelectors.
Both Bush and Gore need Florida's 25 electoral votes to claim the WhiteHouse.
"These are ballots that we know if you look at the under-votes ... you canfind easily, discernible votes," said Boies, a renowned New York litigator.
Bush's lawyers, in their brief to the court, had urged the justices toaffirm Sauls' decision and stay out of the election dispute. Yesterday BarryRichard, Bush's lead attorney, said the court could step in - but in a limitedway.
"It doesn't make any difference whether we're talking about school teachersand laborers or presidents and kings. The rules are the same. And the rules inthis case are very clear," said Richard, a Tallahassee appellate lawyer.
The two questions the court must answer, he said, are: Was the judge'sruling supported by "substantial competent evidence?" Did the judge properlyapply long-established law?
Richard argued that Gore's lawyers did not prove their case before Sauls.
Boies had just finished introducing himself when Wells threw out the legalequivalent of a curve ball. He wanted input on a federal case, McPherson v.Blacker, that neither side had addressed in their briefs. Earlier in the week,the U.S. Supreme Court in a remand to the court noted that the statelegislature has full power in appointing presidential electors.
Why does that not mean that the court can only resolve election contests inwhich the state has given it explicit power to do so? Wells asked.
Boies said the federal constitution never intended to have a statelegislature sit as a "legislative body and a judicial body." Before thisunique and historic contest, no one would have argued that the courts didn'thave the right to review this election, he said. Plus, the legislatureprovided "very specific remedies" to deal with election contests, he said.
Boies argued that the U.S. Constitution gave states full power to appointelectors, which the state legislature in turn conveyed to the voters ofFlorida.
Several justices then turned their attention to a recount. They questionedwhether the law requires a statewide recount, as opposed to the selectivemanual count requested by Gore. In doing so, the justices echoed the argumentrepeatedly voiced by the Bush team.
"What you are asking this court to do is to have the courts of this stateget involved in any instance in which someone comes in and merely allegesthere needs to be count because legal votes were left out," asked Wells.
Boies disagreed. He identified specific votes - 3,300 in Palm Beach Countyand 9,000 in Miami-Dade County - where he said "the evidence is clear andundisputed where voter error and machine error" created under-votes in thepunch card system.
"Why wouldn't that apply to other counties?" said Justice Barbara Pariente,who lives in Palm Beach County. "If we are looking for accuracy ... whywouldn't it be proper for any court to count the under-votes in all of thecounties where these various punch-card systems are operating?"
Boies argued that the law never intended to have recounts in counties whereno contest has been filed. The Bush campaign argued this same point beforeSauls and in their brief to court. Boies said the Bush team can't have it bothways.
For most of his appearance, Boies spoke extemporaneously. He cited casesthat date to 1916, referred to aspects of the trial by the page number oftranscript and gestured to make a point.
The justices turned their attention to Sauls' ruling that the Gore legalteam had failed at every turn to prove its case before him.
"Did anyone ever pick up one of the ballots and show it to the judge andsay this is an example of a ballot which was rejected but in which a vote wasreflected," asked Judge Major B. Harding, a former trial judge from Duvalcounty.
No, said Boies, but the ballots were placed into evidence. He said the Goreattorneys repeatedly asked Sauls to look at them.
Boies said that the judge erred in ruling that the Gore team had to show alikely probability of an altered election outcome before he would order amanual count. The Gore lawyers argued that the law only required them to showthat the election outcome could be affected, a lesser standard.
Two witnesses, including a voting machine expert called by the Bushlawyers, testified that a hand recount is essential in determine a closeelection.
But when Richard took his turn at the bar, he hammered home the point thatthe Gore team failed to prove its case before Sauls.
"They have not met their burden of proof. The reason is the only thing thatthey did was put two witnesses on the stand who were speculating thatVotomatic machines are inherently unreliable," said Richard. "This courtcannot reverse the lower court judge unless there is a complete lack ofsubstantial competent evidence."
But several justices seemed to struggle with the possibility that legalvotes cast would remain uncounted. "We're here today Dec. 7. What is the timeparameter to being able to complete a count of those under-votes?" askedPariente. Replied Boies: "We believe these ballots can be counted in the timeavailable."Copyright © 2015, The Baltimore Sun