- The Washington Times - Friday, December 8, 2000

TALLAHASSEE, Fla. The Florida Supreme Court yesterday challenged Al Gore's top lawyer to demonstrate why the court should wade back into the postelection quagmire just days after it was rebuked by the U.S. Supreme Court.
Although the lower court still is smarting from having its earlier ruling on the presidential standoff vacated by the higher court, several Florida justices yesterday questioned George W. Bush's lawyer in a way that suggested they remain interested in recounting disputed ballots.
Still, even the justices who sounded most sympathetic to the vice president acknowledged there is little time to recount the ballots by Tuesday, the deadline for the state Legislature to decide whether to appoint directly Florida's 25 electors.
To expedite matters, Mr. Gore is willing to limit the recount to 9,000 ballots on which voters in Miami-Dade County failed to mark their choice for president clearly.
"We're here today, December 7," said Justice Barbara Pariente. "What is the time parameter for being able to complete a count of those undervotes?"
"We believe these ballots can be counted in the time available," Gore lawyer David Boies assured her. "Obviously, time is getting very short. We have been trying to get these ballots counted, as this court knows, for many weeks now."
But Justice Harry Lee Anstead pointed out that it would take much longer if the recount were expanded to include all 1 million ballots that Leon County Circuit Judge N. Sanders Sauls called into evidence from Miami-Dade and Palm Beach counties. Judge Sauls threw out Mr. Gore's lawsuit contesting the election.
"We're now here on December the 7th, with December the 12th, you know, fast approaching," Justice Anstead said. "How can we resolve an issue like that at this late date?"
"There's never been a rule that says you have to recount all the ballots in an election contest," Mr. Boies replied.
The seven justices have not yet decided formally whether to accept Mr. Gore's appeal of the Sauls ruling. Yesterday, they questioned whether they even have jurisdiction over the case.
The last time they ventured into the post-election debacle, they unanimously ruled for Mr. Gore by expanding the election certification deadline to accommodate tardy recounts in a handful of Democratic counties.
But that ruling was wiped from the books Monday by the U.S. Supreme Court, which said the state's Legislature trumps its Supreme Court when it comes to selecting Florida's 25 electors.
"You would agree that when the United States Supreme Court has said that there is plenary power in the appointment of electors in the state Legislature, that that means that they've got full power?" Chief Justice Charles Wells asked Mr. Boies yesterday.
The Gore lawyer replied that while the Legislature has "the power to determine the manner of the selection," it exercised that power by making election laws.
"The Legislature has provided this court with the authority to interpret these laws," Mr. Boies said. "Whenever the Legislature passes a law, what the Legislature is doing is passing a law that is going to be interpreted by the courts."
Bush attorney Barry Richard surprised many observers by conceding that the Florida Supreme Court has jurisdiction to review the Sauls ruling. But he might have been preserving his options in the event that he is forced to return to the court for the purpose of appealing decisions that are expected today in lawsuits involving absentee ballots in Seminole and Martin counties.
Instead of trying to convince the justices they have no business reopening the Sauls case, Mr. Richard argued the case itself does not merit review.
"This is nothing more than a garden-variety appeal from a final judgment by a lower court that [conducted] an entire, full evidentiary hearing," he said.
"We had an absolute failure on the part of the plaintiffs here," Mr. Richard added. "This court gave the plaintiffs the opportunity to have a trial to prove their case, and it was an absolute failure in the record of this case to establish an abuse of discretion by any of the challenged canvassing boards."
The seven justices, all appointed by Democrats, spent 68 minutes peppering both sides with equally pointed questions. They adjourned without announcing whether or when they would rule on the merits of the case.
"There are two issues here," said Justice Peggy Quince before the court adjourned. "One is whether or not you demonstrated you were entitled to a recount of those 9,000 votes. And the other issue is whether or not you would actually win the contest."
"We demonstrated, first, that there were a large number of ballots that were not counted by the punch-card machines," Mr. Boies replied. "We demonstrated, second, that when you have a very close election, you have to have a manual review of those ballots in order to have an accurate tally."
With Mr. Bush clinging to a 537-vote lead out of 6 million cast in Florida, Mr. Gore desperately is trying to cobble together votes from a patchwork of counties.
"There is now an undisputed record that the 215 net ballots that were counted in Palm Beach County should be included, that they're legal votes, and that the 168 net ballots for Vice President Gore and Senator [Joseph I.] Lieberman that were counted in Miami-Dade County should be included," Mr. Boies said.
But the justices pointed out that these adjustments would not be enough to put Mr. Gore over the top. They suggested the Gore team wants to make up the difference with a fishing expedition among the 9,000 Miami-Dade ballots.
"Why wouldn't we conclude here that, at most, all that you have demonstrated in the trial court is a possibility that there may be a difference in the outcome?" Justice Anstead asked. "Because, as you have conceded, no one has looked at the 9,000 votes that you're talking about."
Like a math student taking an oral examination, Mr. Boies began furiously crunching numbers in an effort to close the gap.
"We've shown that 215 and the 168, and that gets you up to 383," Mr. Boies said. "At that point, you're down to 100 votes, Your Honor."
He hastened to add: "And remember, Dade County was finding about one out of every four undervotes to be a vote, under procedures approved by the court."
While Mr. Boies and Mr. Richard showed extreme deference to the justices, attorney Joseph Klock was more blunt.
Representing Secretary of State Katherine Harris, Mr. Klock said the justices overstepped their authority by extending the certification deadline for the Nov. 7 election from Nov. 14 to Nov. 26.
"I think, Mr. Chief Justice, that what you need to do is, you need to be careful in terms of construing statutes or remedies to not do anything that would constitute a change in the law," Mr. Klock admonished. "The fact is, the court can't change the law."
"But you're not suggesting that the interpretation or construction of a sentence is a change of law, are you?" said Justice R. Fred Lewis.
"But Justice Lewis, there is just so much baggage the word 'interpretation' can carry on its back before it becomes more of a change than it is an interpretation," Mr. Klock said. "Going from seven days to 19 days that's a lot of baggage for the word to carry."
After yesterday's hearing, Gore lawyer Dexter Douglass emphasized that the Leon County clerk of courts is poised to begin counting the ballots in question, if told by the Florida Supreme Court.
"He said he'd already arranged for 25 counting teams, complete with Republican and Democratic observers, and he had arranged a facility in the Leon County Library with public rooms that could be secured," Mr. Douglass said. "The sheriff's department and other law enforcement would secure the whole place, and they could count around the clock, including his 188 employees that he could assign to the job."

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