Justices pepper lawyers with questions in recount hearing

© The Associated Press, updated 4:39 p.m.

"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, but it was announced that nothing would be forthcoming on Monday.

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.

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.

In dueling court filings Sunday, lawyers for Bush argued that Florida's deadline for counting ballots is long passed, while attorneys for Democrat Gore argued that some counties deserve more time to complete hand tallies.

In a separate legal action Monday, Circuit Judge Jorge Labarga said he did not have the authority to order a Palm Beach County revote. Several voters had filed suit for a new county election, saying they meant to cast their ballots for Democrat Al Gore but may have voted twice or for Reform Party candidate Pat Buchanan because of the ballot's design.

And in a pending federal appeal in Atlanta, Bush supporters proposed Monday that the 11th U.S. Circuit Court of Appeals hear oral arguments as early as next Monday on separate Bush and GOP appeals to stop the hand recounts. A federal court judge in Miami last week refused Bush's request to halt manual recounts, but the Atlanta court refused to grant an emergency order.

In Florida, the seven Supreme Court justices were being asked to settle several key questions in the unresolved presidential election:

• When should manual recounts be done and how should they be done?
• Should the results of manual recounts be included in the final Florida election tally?
• Did Harris act properly in imposing and trying to enforce a Nov. 14 deadline for reporting vote results?

If the court says she was wrong, the counts could go on and Gore could pick up votes.

If he loses in that tally, his lawyers could appeal to the U.S. Supreme Court.

On Sunday, lawyers for Vice President Gore asked the court to set a generous standard for deciding what voters really meant when they punched ballots in the disputed presidential election.

Lawyers for Bush asked the same court to call an end to the election recount and uphold the statutory deadline for counties to report their results.

Meanwhile, manual ballot recounts continued in Palm Beach and Broward counties, with Gore picking up modest gains in unofficial results. A hand recount in Miami-Dade also began and was scheduled to continue until Dec. 1.

If original results from those counties stand, Bush wins Florida and with it the presidential election. Gore hopes the recounts will turn up enough votes to erase the Texas governor's 930-vote lead.

The case arose from lawsuits that Palm Beach and Broward counties filed last week seeking court guidance on whether and how to conduct hand recounts.

Meanwhile, a judge in heavily Republican Seminole County near Orlando allowed a Democratic activist to go ahead with his legal challenge to 4,700 absentee ballots.

Democrats charge that the county's elections supervisor incorrectly let Republicans alter signed absentee ballot request forms by inserting voter identification numbers.

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