- The Washington Times - Tuesday, December 12, 2000

Justices from both sides of the divided U.S. Supreme Court seemed to agree yesterday that George W. Bush's constitutional rights were violated by Florida's selective recounts without a common statewide standard defining a "legal vote."
"Why shouldn't there be one objective rule for all counties, and if there isn't, why isn't it an equal protection violation?" Justice David H. Souter asked David Boies, attorney for Vice President Al Gore.
A speedy ruling in the unprecedented case of Bush vs. Gore was expected, probably today, as the high court searched under severe time pressure for the second time in 10 days for a solution to the deadlock that has held the presidency in doubt for a month after the election.
Justices on both sides of the court's divisions expressed doubts about the methods being used.
"I think it's behind what's bothering Justice [Anthony M.] Kennedy, Justice [Stephen G.] Breyer, me, and others, is we're assuming there's a category in which … all we have are certain physical characteristics. Those physical characteristics, we are told, are being treated differently from county to county," Justice Souter said.
"Why isn't the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn't be clearer. I mean, why don't we go to that standard?" demanded Justice Sandra Day O'Connor, who asked why the Florida justices hadn't treated the presidential election with special care.
"I think there are a lot of times in the law in which there can be those variations, from jury to jury, from public official to public official," said Mr. Boies, who also suggested that the elector deadlines could be met by abandoning plans to widen the recount beyond the counties favoring Mr. Gore.
"I thought the [state] Supreme Court said you had to do it all in the interest of fairness. I thought you agreed with me on that a moment ago," said a startled Chief Justice William H. Rehnquist, interrupting a dialogue between Mr. Boies and Justice Antonin Scalia, who was atypically silent until Mr. Boies' turn at the lectern.
"I did. I did, Your Honor," Mr. Boies told the chief justice, at the same time contending that the directive that the Florida Supreme Court said it included out of fairness to Mr. Bush could be ignored in the interest of time.
In the Bush team's other major argument, counsel Theodore B. Olson said the state court made "a major, major revision" in the laws with Friday's decision, which is under appeal.
"The judiciary in every state, under that argument, could overturn, rewrite, revise, and change the election law in presidential elections, notwithstanding Article II, at will," Mr. Olson told the justices.
At another point in the hearing, Justice Kennedy's patience with Mr. Boies seemed to run thin when he repeatedly gave a vague standard for counting.
"That's very general. It runs throughout the law. Even a dog knows the difference between being stumbled over and being kicked, and you know it," Justice Kennedy told Mr. Boies.
Mr. Boies and Mr. Olson both declined to predict the outcome yesterday, and carefully avoided any critique that might anger the men and women judging their performances.
"The judges will decide what the right decision is," Mr. Boies said on the courthouse steps. "Their job is to decide the case. My job is to make the argument."
"I have no idea when we'll have a ruling, but as I said before, the court is very, very sensitive to the timetable," Mr. Olson said.
Throughout yesterday's historic hearing the second in 10 days on the same case with the clock ticking louder every day the justices said they had no clear idea what they might do to correct the apparent violations of due process and Equal Protection Clauses of the Fourteenth Amendment.
The second time around still was the top ticket in town and a line of chauffeured cars filled Second Street NE while celebrities ranging from 1996 GOP presidential candidate Bob Dole to Jesse Jackson milled with congressional and Gore campaign leaders.
"If this court rules against counting our vote, it will simply create a civil rights explosion. People will not surrender to this tyranny. We will fight back," Mr. Jackson said after attending the high court hearing
Today is the first federal deadline after Election Day in the presidential electoral process.
Under a "safe harbor" provision set by Congress in the 19th century, slates of electors that are free of court challenges as of today are "conclusive" for the Jan. 6 congressional count of ballots that electors cast next Monday.
And last night, some six hours after Justice O'Connor angrily accused the Florida justices of disregarding the Dec. 4 Supreme Court order to clarify their ruling, the Florida Supreme Court issued a new opinion denying the court violated the U.S. Constitution.
"I did not find really a response by the Florida Supreme Court to this court's remand in the case a week ago. It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they'd go ahead and adhere to them and I found that troublesome," Justice O'Connor said.
The Florida court said last night, reaffirming its entire decision that "Based upon our perception of legislative intent, we have ruled that election returns must be accepted for filing unless it can clearly be determined that the late filing would prevent an election contest or the consideration of Florida's vote in a presidential selection."
Chief Justice Charles T. Wells dissented from issuing any order while Bush vs. Gore was before the high court.
As the nation waited for a decision that likely would decide the presidency, the U.S. Supreme Court justices went into a closed conference and voted on the outcome, with the senior justice in the majority assigning the opinion.
Virtually all the 90-minute oral argument session was devoted to probing arcane and dark recesses of hanging and dimpled chad, and considering who could constitutionally set a meaningful standard for defining a legal vote.
The justices, despite many questions on methods of counting, gave no solid indication whether they might reverse the Florida Supreme Court and uphold the state certification of Mr. Bush's victory or allow a recount to resume.
If they take that course, they could send the case back to Circuit Judge N. Sanders Sauls and prescribe a specific standard, such as counting only perforated ballots, or order him to set a standard to apply in all counties with significant "undervotes."
Undervotes are ballots on which machines tabulate no vote for president. They have been counted with techniques that Mr. Bush's lawyers call "standardless, arbitrary."
"If I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot," Joseph Klock, attorney for Florida Secretary of State Katherine Harris, said in answer to a hypothetical question. But Mr. Klock insisted the standard already is set but voters are careless.
"The only problem that we have here is created by people who did not follow instructions, and I would respectfully suggest that a ballot that is not properly punched is not a legal ballot," Mr. Klock told Justice Breyer, one of seven justices grilling lawyers on that precise point yesterday.
Mr. Olson backed off a bit from his challenge of the Florida Supreme Court's jurisdiction even to hear the case when that argument seemed to fall on deaf ears.
"It may not be the most powerful argument we bring to this," Mr. Olson said.
"I think that's right," Justice Anthony M. Kennedy said in such an obvious tone of understatement that the court erupted in laughter.
The justices did not seem clear on how quickly ballots might be counted, how a count might be conducted, and how many undervote ballots there are.
"It's approximately 60,000, I think, Your Honor," said Mr. Boies, who took over from Laurence H. Tribe the duty of arguing Mr. Gore's case in the Supreme Court and did the job in his trademark black sneakers at a court where officials and the occasional attorney wear morning coats.
Seven of the nine all except Justices William H. Rehnquist and Clarence Thomas grilled lawyers on that precise point yesterday, possibly suggesting that at least some members of the court were considering crafting a remedy that would involve yet another recount.

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