- The Washington Times - Friday, December 1, 2000

WASHINGTON — Lawyers for George W. Bush and Al Gore pleaded their cases in the high-columned solemnity of the Supreme Court today before justices openly questioning whether they should intervene in the nation's contested presidential election.
"We're looking for a federal issue here," said Justice Anthony Kennedy, less than 10 minutes after Mr. Bush's attorney, Theodore Olson, began speaking in the historic legal clash.
"Why should the federal judiciary be interfering in what seems to be a very carefully thought-out scheme" for settling elections in Florida, Justice David H. Souter prodded.
"This is a federal court," Justice Antonin Scalia said at another point in an exchange with Joseph Klock, the lawyer representing Florida Secretary of State Katherine Harris.
But several justices also questioned whether the Florida Supreme Court had changed the rules after the election by extending the time to submit manually counted ballots.
"Certainly the date changed," Justice Sandra Day O'Connor said. "It just does look like a very dramatic change made by the Florida court."
The Bush lawyers are seeking to have the high court overturn the Florida Supreme Court ruling that extended a deadline for counting votes in the state. The Bush campaign says that was improper, overreaching by a court that was writing instead of interpreting laws.
The courtroom was crowded, the sidewalk outside full of protesters as Chief Justice William Rehnquist gaveled the court into session for arguments that could settle the contested election between Mr. Gore and Mr. Bush.
For the first time, the justices released an audio tape of the argument shortly after it ended, and many television and radio stations immediately began airing the entire argument. As is its custom, the court barred television and still cameras.
While the court heard arguments in Washington, an armed convoy rolled north on Florida's highways, delivering hundreds of thousands of ballots from Miami to the state capital of Tallahassee. Circuit Judge N. Sanders Sauls, presiding over Gore's unprecedented legal challenge to Bush's certified victory in the state, ordered the votes made available in case he wants a recount.
Already, nearly 500,000 ballots were in Tallahassee, delivered from Palm Beach County yesterday on the judge's order.
The winner of Florida stands to gain the presidency, since the state's 25 electoral votes would give either Bush or Gore a majority of the Electoral College.
"God save the United States and this honorable court," the high court's marshal intoned before Justice Rehnquist — his voice familiar from historic impeachment proceedings two years ago — called the case.
Laurence Tribe, representing Gore, underwent tough questioning too. Justice Kennedy told him, "You say the Florida Legislature now has no role. You now say this court has no role. That means the Supreme Court of Florida is it."
Mr. Olson said the Florida Supreme Court "overturned the carefully enacted plan" by state legislators for resolving election disputes.
However, Justice Ruth Bader Ginsburg told Mr. Olson, "I do not know of any case where we have impugned a state supreme court in the way you have… We owe the highest respect to the state court when it says what the state law is."
The justices did not indicate when they would issue a ruling. In some cases in which the timing was urgent, the court has acted in as little as one day. While at least four justices agreed to have the day's hearing, it's also possible the justices could decide, with or without explanation, not to rule on the case after all.
Justice Breyer, for one, pressed Mr. Klock to explain what the consequence would be of a court ruling one way or another.
Mr. Klock responded that "the only immediate effect would be" to raise Mr. Bush's victory margin from 537 votes to slightly more than 900, a number that does not take into account Mr. Gore's gains in the controversial manual recounts.
The questioning was so active that when Deputy Florida Attorney General Paul F. Hancock finished his 10-minute argument, Justice Rehnquist granted an extension. saying, "You haven't had a chance to say a lot."
Mr. Hancock declined, but a few minutes later when part of Tribe's argument time was spent finding the correct page on which a law was cited, Justice Kennedy quipped, "That won't get you an extra two minutes," drawing a laugh from the audience.
Mrs. Harris certified Mr. Bush the winner in Florida last Sunday by a meager 537 votes after manual recounts in a few Democratic-leaning counties that Gore had sought. The state Supreme Court had ordered those recounts to proceed, setting a timeframe that extended beyond the Nov. 14 date that Mrs. Harris had cited as the deadline fixed in state law.
Mr. Olson argued that the Florida Supreme Court "overturned and materially rewrote" the election laws, while Tribe likened the recount process to "a kind of photo finish."
What is going on now, Mr. Tribe said, "is rather like looking more closely at the photograph."
"Who would have thought that the (Florida) Legislature was leaving open the date for change by the court?" O'Connor asked. Tribe said the original certification date was "not a real deadline" because the secretary of state had discretion to accept late-filed vote totals.
Mr. Olson argued that the Florida court, by setting a new deadline, violated an 1887 federal law that makes state choices of presidential electors binding on Congress if any disputes are resolved according to laws enacted before the election.
Justice Kennedy suggested the law might simply mean "if you run a clean shop down there, we give you a bonus," the binding effect on Congress.
In Tallahassee, there was the prospect of even more ballots being ferried to Judge Sauls' jurisdiction. Bush attorneys late Thursday asked the judge to order an additional 1.2 million ballots brought in from Volusia, Broward and Pinellas counties. "We believe there were a number of illegal votes for Gore in those counties," Bush spokesman Scott McClellan said.
Separately today, the Gore legal team filed an urgent plea with the Florida Supreme Court asking that hand-counting of the ballots begin while Judge Sauls, who will hold a hearing tomorrow, decides whether the recounts could be added to Mr. Gore's totals. "There is no reason to delay counting ballots even one day," the brief read.
Mr. Bush's legal team, in a motion with Judge Sauls yesterday, cited more than a dozen reasons why the judge should toss out Mr. Gore's contest. In the Republicans' first formal response to the Democrats' lawsuit, they claimed Gore's challenge was baseless because the real election wasn't between the Texas governor and the vice president, but between the separate groups of 25 Florida electors.
The motion also says Mr. Gore's lawyers filed their challenge after the 10-day deadline required by state law and that manually counting only part of the ballots would be illegal.

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