- The Washington Times - Tuesday, November 21, 2000

TALLAHASSEE, Fla. Florida's Supreme Court justices yesterday sharply questioned lawyers for Al Gore and George W. Bush, repeatedly inquiring about whether the election can be concluded in time for Florida's electors to be chosen three weeks from today.
For nearly 2 and 1/2 hours, the seven justices played the role of devil's advocate by peppering each side with questions that seemed to take the viewpoint of the opposition. After grilling the Democrats for an hour, the justices turned on the Republicans with equal vigor.
Lawyers soon discovered that their carefully crafted speeches would go unheard as justice after justice repeatedly interrupted them with pointed queries. The lawyers were then abruptly dismissed, in most cases without the benefit of even the briefest closing arguments.
It was impossible to divine the intentions of the justices, all of whom were appointed by Democrats. The court, which has a reputation of being liberal and activist, was asked by the Gore campaign to broadly assert itself in settling the election a role the Florida legislature has heretofore left to Florida's secretary of state.
But the court seemed more concerned with not missing the deadline for choosing Florida's 25 electors, which is Dec. 12, or six days before the Electoral College meets. Meeting that deadline would preclude a variety of contentious scenarios that have sprung up in recent days, calling for the electors to be chosen by the Florida legislature or perhaps even the U.S. Congress.
To prevent this, Chief Justice Charles T. Wells talked of working backward from Dec. 12 to build in enough time for either party to contest the election certification, which the court put on hold Friday. Florida law allows candidates to protest an election before it is certified and contest an election afterward.
In other words, the court sought to balance the Gore campaign, which wants certification delayed until hand recounts are completed in three Democratic counties, with the Bush campaign, which needs enough time to contest the certification if the hand counts produce enough votes for a Gore win.
The two goals seemed on a collision course because Miami-Dade County does not expect to finish its hand count until early December, which is precisely when any contest period would have to begin.
"How is it going to work, within that time period, for the votes to get recounted, and then, if Governor Bush wants to contest that, for him to get a contest finally resolved?" Justice Wells asked.
Gore attorney David Boies suggested the court tell the county canvassing boards: "You've got this amount of time to complete your recount. And at that point, those votes are subject to being contested by Governor Bush or Vice President Gore. And those contests then take place in a time frame that allows everything to be completed by December 12th."
Justice Major B. Harding asked how the court was supposed to come up with a timetable.
"Do we have information in the record that can guide us?" he said. "Do we know how long it's going to take to do these things? Or are we just going to reach up from some inspiration and put it down on paper?"
Mr. Boies replied that the answer is somewhere "in between" the record and heavenly inspiration.
"I think there's some information in the record," he said. "But to be completely candid with the court, I believe that there is going to have to be a lot of judgment applied by the court as well."
Mr. Harding countered by essentially making the argument of the Bush team, which points to a Florida law that calls for election results to have been certified last weekend by Florida Secretary of State Katherine Harris.
"Is this not something that the legislature tried to do in setting these time limits, when the votes should be in?" Mr. Harris said.
"I don't think that's what they have done," Mr. Boies said. He added that the intention of the legislature was not to bring "down the curtain a mere week after the election."
"What is the time limit?" Mr. Harding persisted.
But Mr. Boies could not answer.
The justices were equally probing in their questioning of Republicans. Mr. Wells demanded that Bush lawyer Joseph Klock explain why certification of the election should not be delayed until after the hand counts are completed.
"Why wouldn't it be, in this unique circumstance, a better thing to do to wait?" Mr. Wells said.
"There is no suggestion anywhere here in the record that we have a problem with the voting machines or with any fraud or anything else," Mr. Klock said. "What we're trying to do is to deal with the problem of people who did not follow instructions.
"The instructions were to put the stylus through the hole in the ballot," he said. "They did not follow those instructions.
"Now, balanced against that, it's being suggested that the entire contest period should be stood on its head and that the secretary of state loses her ability to conduct her constitutional exercises [and] the legislature loses its ability."
Mr. Harding suggested voters should not be blamed for not fully dislodging "chads," or tiny squares of paper, from their ballot. He seemed to make the Gore team's argument by insisting election workers divine the intention of those voters and count the ballots.
"We've had cases dealing with this issue in Florida since the 1800s and all of them in some way, shape or form come about because voters do not follow the instructions," he said. "And in all of those cases that I have read, you can look at the ballot even though it was improperly marked and even though the voter did not follow the instructions but you can tell the intent of the voter from that ballot. And that vote has to be counted."
Mr. Klock replied that all those cases referred to elections being contested after certification not protested beforehand.
"The court is being brought into something it need not be brought into," he said. "This is not a legal problem. This is a political problem. If the voting is certified, everyone can then proceed with a contest."
"Public officials have a responsibility to count and recognize the votes of all Floridians who voted in this presidential election," said lawyer Paul Hancock, representing Florida Attorney General Bob Butterworth, a Democrat. "Factors such as administrative inconvenience, expediency or the limitations of vote-reading machines pale in comparison to protecting the voting rights of our citizens."
The court is under intense public pressure to decide the case before the Thanksgiving weekend, which begins Thursday. But justices gave no public hint of when they will rule.
Meanwhile, Mr. Butterworth yesterday called for all absentee ballots from military members serving overseas to be counted, even if they don't have postmarks. The Gore team has come under heavy criticism in recent days for its organized campaign to disqualify hundreds of such ballots, which are expected to favor Mr. Bush.
Republicans have expressed hope that the Texas governor could net an additional 500 votes from the 1,527 overseas ballots that were set aside over the weekend. Mr. Bush already leads Mr. Gore by 930 votes statewide.
In another setback to the Gore team, a Palm Beach Circuit Court threw out lawsuits yesterday from Democrats who had complained that the ballot was illegal because it was too confusing. The so-called "butterfly ballot" argument had been one of the pillars of the Gore victory strategy because Democrats believe hundreds of would-be Gore supporters inadvertently selected Reform Party candidate Patrick J. Buchanan.
Democrats also expressed frustration that the hand recount under way in Palm Beach has not netted as many votes for the vice president as expected. Election officials said there was "very little change" in the tally, which began yesterday with a net gain of 12 votes for Mr. Bush.
In Broward County, Mr. Gore had picked up 118 votes by midday yesterday.
Workers in Miami-Dade were just beginning their hand count yesterday and vote totals were not immediately available.
Mr. Gore spent yesterday at his residence in Washington, where he gave a speech via satellite to a conference in Nashville, Tenn. In explaining why he had to scrap plans to appear in person, the vice president made a fleeting reference to his deadlock with Mr. Bush.
"We normally hold these conferences in the summertime," he said. "We decided to move this one out of the heat of the election to late November so we could be sure that it was well after the conclusion of the election. And you know, I just assumed that by November 20 the election would be over with. But I guess not."
Mr. Gore also issued a written statement expressing his sorrow over the passing of former White House Counsel Charles F.C. Ruff.
Mr. Bush left the governor's mansion at 8 a.m. yesterday and headed for his office in the state capital. Asked by reporters what he thinks of the ongoing hand counts, he declined to comment.

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