TALLAHASSEE, Fla.—Mindful of the extraordinary dispute before it, the Florida Supreme Court pressed lawyers for Al Gore and George W. Bush yesterday to answer whether they should intervene in the contested presidential election and resolve the case by Tuesday when the state's vital 25 electoral votes must be awarded.
But the exchange between the seven justices and attorneys for the vice president and the Texas governor suggested that the legal and practical realities facing them might be tough to overcome.
Before the court was Gore's appeal of Leon County Circuit Judge N. Sanders Sauls' order Monday that rejected the vice president's challenge to the state vote 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 said they did not prove that there was any misbehavior by election officials, and because a recount wouldn't alter the election's result.
The last time the Florida Supreme Court court heard a case involving this contested election, it issued a ruling the following day.
Neither side yesterday completely ruled out an appeal of the high court's ruling, though Gore's lead lawyer, David Boies, admitted later that he would be 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. Supreme Court that questioned the court's legal basis for its Nov. 21 review of the presidential election contest. It was a theme repeated throughout the 68-minute hearing.
The justices also focused on these key issues: whether a statewide recount was required and how a recount could be accomplished without jeopardizing the state's participation in the Dec. 18 meeting of the Electoral College.
Boies assured the court that it had the authority to intervene. He reiterated the vice president's plea to initiate an immediate hand count of the contested ballots before the Tuesday deadline for selecting state electors.
Both Bush and Gore need Florida's 25 electoral votes to claim the White House.
"These are ballots that we know if you look at the under-votes ... you can find easily, discernible votes," said Boies, a renowned New York litigator.
Bush's lawyers, in their brief to the court, had urged the justices to affirm Sauls' decision and stay out of the election dispute. Yesterday Barry Richard, Bush's lead attorney, said the court could step in - but in a limited way.
"It doesn't make any difference whether we're talking about school teachers and laborers or presidents and kings. The rules are the same. And the rules in this case are very clear," said Richard, a Tallahassee appellate lawyer.
The two questions the court must answer, he said, are: Was the judge's ruling supported by "substantial competent evidence?" Did the judge properly apply 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 legal equivalent 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 state legislature has full power in appointing presidential electors.
Why does that not mean that the court can only resolve election contests in which the state has given it explicit power to do so? Wells asked.
Boies said the federal constitution never intended to have a state legislature sit as a "legislative body and a judicial body." Before this unique and historic contest, no one would have argued that the courts didn't have the right to review this election, he said. Plus, the legislature provided "very specific remedies" to deal with election contests, he said.
Boies argued that the U.S. Constitution gave states full power to appoint electors, which the state legislature in turn conveyed to the voters of Florida.