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Watching winds shift in state's highest court
© St. Petersburg Times, published December 8, 2000 You can't get rich by betting on how an appeals court will rule. You especially can't get rich if you base your bets on watching that court's oral arguments. With that warning, let's read the tea leaves from Thursday morning's questioning by the justices of the Florida Supreme Court of the lawyers in the presidential election case. Tea leaves for George W. Bush: 1. The justices were concerned about their power to do anything at all. Chief Justice Charles Wells and Justice Major Harding repeatedly asked whether the court's power was limited by federal law and the U.S. Constitution. Remember, the U.S. Supreme Court has just fired a warning shot across the Florida's court's bow. There is an argument that our Legislature -- not our court -- has sole power here. 2. The court seemed bothered by ordering a last-minute manual recount in only selected counties. Why should Al Gore get only his desired counties, instead of a statewide count, Justice Peggy Quince asked, "if we're looking for accuracy"? Justice Harry Lee Anstead also asked Gore attorney David Boies why there should not be recounts in "counties that may have favored your opponent." Boies' repeated answer was that Bush simply didn't ask for recounts -- sort of a "tough luck" argument. 3. The justices asked several times whether they had the power to recount only the disputed ballots, instead of all ballots. Boies tried to reassure the court that it could, but who knows whether he succeeded? 4. The court worried that there is no time left. "We don't have a remedy here that can do that by Dec. 12," Wells protested, referring to the date the state's electors should be chosen. "How can we resolve an issue like that at this late date?" Anstead asked. Tea leaves for Al Gore: 1. The justices were concerned that the trial judge who ruled for Bush never actually looked at the ballots. This is a key point -- the high court can overturn the lower judge's ruling for Bush if it finds a lack of "competent evidence." Anstead pinned down Bush lawyer Barry Richard: Can the trial judge's omission be used to argue a lack of competent evidence? Richard argued that the trial judge never had to look because there was zero proof it was necessary. 2. The court seemed unhappy with Bush's standard for when an election contest is justified. State law says that you can contest an election if there are enough disputed votes to change the result, or throw it in doubt. Several justices asked: Are there not enough disputed votes here to qualify? Richard argued that the mere number is not enough; there must be something more. The county boards acted within their discretion, he argued. 3. Justice Anstead seemed determined to find a basis for the court's authority. Do the feds really mean that a state court has no role whatsoever -- that state election law is exempt from state court review when it comes to presidents? "There is simply a single scheme (of election law), is there not?" Anstead kept asking of Joseph Klock, lawyer for Secretary of State Katherine Harris. Does state law on contesting elections apply, or not? Klock agreed, reluctantly: "It can apply, if applied properly." 4. Katherine Harris' lawyer. Klock both openly criticized the court's earlier ruling in favor of Gore, then lectured the court on what it cannot do now. "Interpreting" is not enough to describe how the court extended the original counting deadline from seven days to 19, Klock told the court: "That's a lot of baggage for the word to carry." He went on to instruct the justices that they could not rule a certain way: "You'd have to create a pile of law to do it." He may be perfectly correct on both points; however, in general, this is not a winning strategy. Then again, who knows? Maybe the justices loved him. If we don't already know by the time you read this, we most likely will today.
 © 2006 • All Rights Reserved • St. Petersburg Times
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