Justices grill lawyers; decision could come today
By TIM NICKENS
© St. Petersburg Times, published November 21, 2000
It was not a day for long-winded speeches from big-time lawyers.
On a worldwide stage with the presidential election hanging in the balance, the seven justices of the Florida Supreme Court dominated a pivotal two-hour hearing Monday as they took turns asking practical questions.
Is it more important to meet a deadline for certifying Florida elections results than to recount ballots by hand?
Is there something peculiar about changing the rules for hand-counting ballots in the middle of the game?
Is there enough time to complete the hand recounts, give the loser an opportunity to contest the election and still ensure that Florida participates in the Electoral College on Dec. 18?
"What's the date, the outside date that we're looking at and which puts Florida's votes in jeopardy?" Chief Justice Charles T. Wells asked.
The answer: Dec. 12, the date Florida's election has to be final and its 25 electors have to be chosen.
As early as today, the court is expected to provide a road map for what will happen between now and then as George W. Bush and Al Gore continue to fight for the presidency two weeks after the election.
Hundreds of miles away, volunteers in three South Florida counties continued to recount by hand more than 1.6-million votes even as the Supreme Court wrestled with whether their work will matter.
In Broward County, Supervisor of Elections Jane Carroll said she couldn't take the long hours anymore and resigned from the canvassing board even though their work could be finished by tonight. In Miami-Dade County, elections officials predicted it would take until Dec. 1 to finish the job as Republicans complained the Democrats are manufacturing votes. And in Palm Beach County, a circuit judge refused to order a new election as Democrats pushed to count dimpled ballots.
Meanwhile, Florida Attorney General Bob Butterworth, Gore's state chairman, urged counties to reconsider their absentee ballots from military personnel that were discounted because they were not postmarked.
But Monday's spotlight was on the Supreme Court in Tallahassee. The circus atmosphere outside the court included demonstrations by Gore and Bush supporters, journalists who could not cram inside the court and tourists from as far away as Indiana.
Inside, lawyers representing both candidates and Secretary of State Katherine Harris rarely worked up any momentum before they were interrupted by justices with no patience for flowery rhetoric or historical references.
Wells, Justice Harry Lee Anstead and Justice Barbara Pariente led the questioning about the deadlines in state and federal statutes that have created an urgency to the drama. Harris rejected requests by four counties to amend their vote totals after a Nov. 14 deadline, one week after the election. The secretary of state's lawyer, Joseph Klock, contended that Harris properly used her discretion to enforce the deadline and reject the hand recounts.
But Anstead questioned whether it was reasonable for Harris to enforce a deadline that large counties such as Miami-Dade, Broward and Palm Beach could not reasonably meet if hand recounts were requested at the last minute.
"The scheme allows for a request for a recount very late in the process," the justice said.
Responded Klock: "If you are permitted to initiate something at any point and time, and it has to be turned in at a certain time, that is the same basic rule that I had in high school with term papers. You can start the term paper the night before, if you want to, but it is unlikely that you'll be able to turn it in the next day when it's due."
Klock, the managing partner for Miami's Steel, Hector & Davis, received the toughest questioning from the justices as he defended Harris. His argument that the best course of action would be to allow the state to certify the presidential election results without the hand recounts and let Gore contest the election did not satisfy Wells.
"Why wouldn't it be, in this unique circumstance, a better thing to do to wait, and, unless there is a specific reason that's going to prejudice Florida's certification to the Electoral College, wait and see to a point and time when the manual recounts are completed?" the chief justice asked.
Klock repeated Harris' opinion that manual recounts are necessary in cases when there are problems with the machines counting the ballots, not when when voters failed to follow instructions.
"The instructions were to put the stylus through the hole in the ballot," he said. "They did not follow those instructions."
Justice Major B. Harding disagreed with Klock's interpretation of when hand recounts are appropriate. He said voter error has been the subject of court cases in Florida for more than a century.
"And in all of those cases that I have read," Harding said, "when you look at the ballot, even though it is improperly marked and even though the voter did not follow the instruction, but you can tell the intent of the voter from that ballot, then that vote has to be counted."
Justice Peggy Quince pursued a similar line of questioning a short time later with Michael Carvin, who represented Bush. She questioned whether it would be appropriate to discount thousands of ballots only because the chad had not been entirely punched out.
"I am simply saying that the person punched the hole, whatever hole they wanted to punch, but, for whatever reason, the chad did not fall out, what would we do with all of those ballots?" Quince asked.
It depends, Carvin answered.
Bush's lawyers said such ballots could be included if a manual recount was completed by the Nov. 14 deadline that Harris enforced.
Carvin hinted Bush could return to federal court if he lost this round. Barry Richard, a Tallahassee lawyer who also spoke for Bush, said the court should not change Florida's election rules after the election and act as legislators by rewriting state statutes.
"I suggest to this court that the appellants have given this court no basis in this case for finding that the secretary of state's decision was clearly erroneous," Richard said. "And whether or not history ultimately looks kindly upon what we do here, I believe, will depend upon whether we have abandoned those principles of law and statutory construction and separation of powers that we have adhered to for so long."
But lawyers for Gore and Butterworth said Florida law places determining the will of the voters above statutory deadlines. David Boies, a lawyer for the vice president, said the justices could establish some rules and deadlines for the hand counts that would still leave enough time for the task to be completed, the election to be contested and the results to be certified before Florida has to name its Electoral College representatives Dec. 12.
"Do we have information in the record that can guide us?" Harding asked. "Do we know how long it's going to take to do these things? Are we just going to reach up from some inspiration and put it down in paper?"
"Your honor," Boies replied, "I think it is in between."
As the nation watched the justices on television, Bush and Gore offered little indication of how they may respond when the court's opinion is released. The Texas governor now leads the vice president in Florida by just 930 votes out of nearly 6-million cast, but Gore does not appear to be making up as much ground in the hand recounts as quickly as he had hoped.
Bush said little Monday a he walked into the state capitol in Texas. "Feeling great!" he said.
Gore canceled plans to fly to Nashville and opened a satellite address to a family-policy conference with a nod to Tallahassee. "I appreciate this chance to speak to the Florida Supreme Court," he joked before watching the hearing from his home. The conference was scheduled for last summer, but Gore delayed it until after the campaign season.
"I just assumed," he laughed, "by Nov. 20 the election would be over with."
- Times staff writers Lucy Morgan and Diane Rado contributed to this report, along with the Associated Press.