Waiting for the court

Justices appear skeptical of Gore's case for recount

By BILL ADAIR

© St. Petersburg Times, published December 12, 2000

WASHINGTON -- In a case that could determine the outcome of the presidential election, the U.S. Supreme Court heard the pros and cons of hand recounts and dimpled chad on Monday. But several justices were skeptical of pleas from Vice President Al Gore's attorney to resume the Florida recount.

Justices Sandra Day O'Connor and Anthony Kennedy, the key swing votes who sided with Bush in an extraordinary order to stop the recount, seemed unswayed by the Gore arguments Monday. However, legal scholars cautioned that Supreme Court arguments can be deceiving and that justices often take contrarian stands to test their theories.

Much of Monday's debate focused on pregnant chad, the indentations from voters who press on a ballot but do not punch a hole.

Several justices appeared sympathetic with the complaint from the George W. Bush campaign that Florida counties had no uniform standard for determining which votes counted. The Bush attorneys said the lack of standards violates the constitutional guarantee for due process and equal protection.

But Gore attorney David Boies said county elections officials were following a statewide standard to determine the intent of the voter.

Boies recounted testimony from a Palm Beach County judge who said that ballots were counted if voters indented -- but did not punch holes -- for every race on a ballot.

"In doing so, they were applying Florida law," Boies said. "And like the law of many states, (Florida) has a general standard, not a specific standard."

O'Connor sounded skeptical about recounting ballots with dimpled chad, a practice allowed in Palm Beach but not other counties. She asked Boies why ballots weren't judged by the standards spelled out in the instructions, which directs voters to punch a hole.

"Why isn't the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn't be clearer," O'Connor said. "Why don't we go to that standard?"

Boies replied that the state was following a 1917 case that said the state standard was a voter's intent.

Kennedy also sounded skeptical of the Gore demands.

He said the campaign's request for a recount might require "a new law, a new scheme, a new system for recounting at this late date. I'm very troubled by that."

Unlike the election case that came before the court two weeks ago, which dealt with a narrow question about extending a deadline, this one, Bush vs. Gore, has the potential to settle the dispute that has divided the nation.

The court voted 5-4 on Saturday to stop the recount the Florida Supreme Court had ordered less than a day earlier.

The presidential election hinges on the outcome in Florida, where Bush has a razor-thin lead. Florida's certified vote totals gave Bush a 537-vote lead, but after Friday's state court ruling, his lead was as small as 154 votes.

Joseph Klock, a Miami lawyer who represented Secretary of State Katherine Harris, said the voting problems were caused by people who ignored the directions.

Voters are told to "punch your selections, take the ballot out, and make sure there are no hanging pieces of paper attached to it," Klock said.

"The only problem that we have here is created by people who did not follow instructions," Klock said.

O'Connor seemed generally supportive of the Bush campaign's arguments, but she also asked tough questions of Theodore Olson, Bush's lawyer.

She asked whether it was practical to have a single standard for counting votes when there were different kinds of balloting such as punch cards, machines and ballots that are optically scanned.

"How can you have one standard when there are so many varieties of ballots?" she asked.

Olson said the problem was not with the different voting methods, but with the different interpretations when one method -- punch cards -- were counted.

"There are different standards for evaluating those ballots from county to county," he said, and those standards have changed since the election.

Justice Stephen Breyer, who sided with Gore in Saturday's vote, pressed Olson to recommend a single standard.

"What would the standard be?" Breyer asked.

"Well, certainly, at minimum, Justice Breyer, the penetration of the ballot card would be required," Olson replied.

Unsatisfied with the answer, Breyer kept pressing him for a recommendation.

"I haven't crafted it entirely out," Olson said. "That is the job for a legislature."

Today is a deadline for Florida to receive "safe harbor" protection from congressional meddling. Any state that files its electors by today is assured its slate will be certified as the official electors. States that file after today are subject to review by Congress.

However, legal scholars said Florida can still name its electors any time between now and Dec. 18, when electors are scheduled to meet in state capitals to vote.

The other major issue debated on Monday was whether the Florida Supreme Court had the authority to make such a sweeping ruling.

Olson told the justices that the Florida court overstepped its authority, exercising powers that actually belonged to the Legislature.

The court's decision Friday "was a major overhaul (of legislative powers) in almost every conceivable way," Olson said.

He said the court's action was "an utter revision" to the election timetables.

But Boies said the court was properly exercising its power.

"It wasn't passing a new law," Boies said. "It was interpreting the existing law."

That was the central issue in the first election case to come before the U.S. Supreme Court, Bush vs. Palm Beach County Canvassing Board, in which the Florida Supreme Court extended the deadline for hand recounts.

But the U.S. court set aside the Florida court's ruling on Dec. 4, asking the Florida court to clarify its opinion.

O'Connor said Monday morning that she was annoyed the Florida court had not responded to the week-old request.

About six hours later, the Florida court announced that it had revised its opinion in that case and was forwarding it to the court in Washington.

During Monday's arguments, the mood in the court's chamber was more relaxed than during the first case, even though this case is likely to be far more important.

The justices and the 350 people in the audience broke into laughter when Klock mistakenly referred to Justice John Paul Stevens as "Justice Brennan."

He was referring to former Justice William Brennan, who died in 1997. Klock also mistakenly referred to Justice David Souter as Justice Breyer.

"I will now give up," Klock said, shaking his head in embarrassment.

On the plaza outside the court building, there was fresh evidence Monday of how the nation is divided about the case.

Gore supporters chanted "Count all the votes! Count all the votes!"

But a Bush supporter with a megaphone waded into the crowd shouting, "Liberal hacks! Liberal hacks!"

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