- The Washington Times - Thursday, December 7, 2000

Al Gore's lawyer pleaded with a seemingly skeptical Florida Supreme Court today to order selective manual recounts of ballots that could revive the vice president's fading quest for the White House. George W. Bush looked to the state's justices to finally count his rival out.
"We believe the ballots can be counted in the time available," Mr. Gore's lawyer, David Boies, said when Chief Justice Charles T. Wells noted the state's presidential electors must be picked by Dec. 12. "Obviously time is getting very short."
But lawyers for Mr. Bush and GOP Secretary of State Katherine Harris both said Mr. Gore was asking the state's highest court to exceed its legal powers.
Joseph Klock, representing Mrs. Harris, said the court would have to "create a pile of law" to grant Mr. Gore's request.
"There is not a single shred of evidence to show that any voter was denied the right to vote," argued Mr. Bush's lawyer, Barry Richard, adding that the state's highest court has no business stepping in and overseeing recounts.
The vice president is hoping to overturn a trial judge's ruling earlier in the week that refused to order manual recounts, and left unmolested Mr. Bush's certified 537-vote margin of victory in the state that stands to pick the next president. Some Democrats have urged Mr. Gore to concede defeat if the court rejects his appeal, but the vice president declined to say so earlier in the week, and Boies left the door open ever so slightly for a continued struggle.
"As long as they decide this based on Florida election law, we've said from the beginning the Florida Supreme Court is the final arbiter of that, and we're going to accept that decision regardless of what that decision is," he said.
The justices provided no indication of how quickly they would rule, but in an earlier recount case, handed down a decision within 24 hours of hearing arguments.
There were other subplots in America's riveting election drama, including an announcement that the GOP-controlled Florida Legislature would meet in special session to appoint its own slate of electors, loyal to Mr. Bush.
A pair of trials wound down in state courts in which Democratic voters sought to have thousands of absentee ballots thrown out in two Florida counties. Mr. Gore wasn't a part of the proceedings, but has spoken favorably of the suits.
Still, one month after Election Day, most of the attention was focused on the state's highest court.
Mr. Gore and running mate Sen. Joseph Lieberman watched on television at the vice president's residence as Mr. Boies argued their case. In Austin, Texas, Mr. Bush said he didn't watch the proceedings, though he was briefed immediately afterward by James A. Baker III, his point man in Florida.
"We'll see what happens there," Mr. Bush said when asked by reporters how he thought his side had fared before the Florida Supreme Court.
Several of the court's seven justices — all appointed by Democratic governors — pressed Mr. Boies to explain why it would be proper to have manual recounts in some counties, but not statewide.
"I don't think there has ever been a suggestion under state law that you should have a recount where it was not requested," Mr. Boies replied.
Wells also observed that the courts could become involved "only if there was substantial noncompliance with election laws," not merely when — as Mr. Gore alleges — some legitimate votes were left uncounted.
"I don't think that's what we're arguing," Mr. Boies said. He added it was "undisputed that there are voter errors and machine errors" that have affected the statewide count.
The statewide winner of Florida — and its 25 electoral votes — stands to gain the White House and take the oath of office as the nation's 43rd president on Jan. 20.
"I represent the vice president and Senator Lieberman," Mr. Boies said in the opening moments of a hearing than ran eight minutes over its allotted hour. But that was all he could say before Justice Wells cut him off and pressed him to explain why the court — and not the Florida Legislature — should be settling the issue.
Justice Wells began and ended the session with challenges to Mr. Boies to explain how the court should apply guidance from the U.S. Supreme Court earlier this week. The high court sent a separate election case back to the Florida court with questions about the legal basis for the Florida court's Nov. 21 decision extending hand recounts.
At the start, Justice Wells asked the relevance of a previous U.S. Supreme Court case governing appointment of presidential electors.
"My reading of that case is that the U.S. Supreme Court has said that the state Legislature has plenary power, full power, in respect to appointment of presidential electors, and that power cannot be eroded even by the state constitution," he said.
If that is so, Justice Wells asked, does the appeals court have the power to resolve this kind of presidential election controversy?
Mr. Boies replied it did.
When his turn came to speak, Mr. Richard had scarcely introduced himself to the court when the justices began peppering him, too, with questions.
"This is nothing more than a garden variety appeal" under state law, he said. "I believe the circuit court is subject to appeal, but under a very limited fashion."
But he said Mr. Gore's lawyers were requesting something the law didn't allow — essentially asking the state Supreme Court to assume the job of the trial court.
But Justice Harry Lee Anstead pressed Richard on whether Judge N. Sanders Sauls had reviewed any of the questionable ballots in three Florida counties. Mr. Richard said no ballots were looked at, because, he added, there was "no basis to do that" unless Sauls first ruled that Gore was entitled to some sort of recount.
The plan to summon the Legislature into session drew sharp criticism from Democrats. "The only thing missing on the proclamation is the postmark from Austin, Texas," charged Rep. Lois Frankel, leader of the House Democrats, referring to the Bush campaign.
The GOP leaders, Speaker Tom Feeney and Senate President John McKay, said they were acting to preserve the state's right to have its electors counted in the Electoral College on Dec. 18, and had not been pressured by Mr. Bush's campaign to act.
Mr. McKay added, though, that his preference was for electors loyal to Mr. Bush, saying they should be appointed "based upon the vote totals that were available on November 14, and equally important, on the laws that were in place as of the date of the election on November 7."
There were other courts cases in a recount controversy that has spawned dozens of them.
A federal appeals court ruled that Republican running mate Dick Cheney is a Wyoming resident and therefore eligible to serve as vice president. The opinion came in a case brought by three Texans who claimed Mr. Cheney had moved to Texas when he bought a home there in 1993. Under the Constitution, electors from a state cannot vote for a president and a vice president from that state.
In addition, a federal judge in Tallahassee presided over a hearing on a suit that seeks to disqualify more than 2000 absentee ballots, mostly from military personnel, that were received after Election Day.

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