ALLAHASSEE - In a case that could decide the presidency, Florida's Supreme Court justices yesterday grilled attorneys for George W. Bush and Al Gore, repeatedly questioning whether the court had the authority to extend the deadline for including recounted ballots in the final tally.
But the court seemed equally concerned about the fairness of excluding the recounted votes. And some justices seemed eager to explore how deep into December the recounting could go on without jeopardizing Florida's 25 electoral votes. Bush's lead is now 930 votes out of some 6 million cast in Florida.
While Secretary of State Katherine Harris set a Nov. 14 deadline for recounted votes, which Gore has contested, Supreme Court Chief Justice Charles T. Wells focused repeatedly in yesterday's hearing on the Dec. 12 deadline for assigning the state's representatives to the Electoral College. He put it to the lawyer representing the state attorney general, to the chief counsel representing Al Gore, and to the lawyer for George Bush: When exactly would the stalemate in Florida become an electoral crisis?
''Tell me when Florida's electoral votes would be in jeopardy'' if recounting continued, Wells asked Bush lawyer Michael Carvin.
''Clearly it's in jeopardy now,'' Carvin replied, urging that the Nov. 14 deadline for ballots be upheld.
''Why is that?'' Wells asked.
Carvin replied that further recounting would limit the time for legal challenges after the state's vote is certified. ''Dec. 12 is the cutoff date,'' he said.
That exchange crystallized the questions facing the court: Is there time to have a fuller recount, and does the court have the authority to extend the deadline? Justices spent much of the 21/2 hours of argument examining whether Harris had been correct in attempting to treat Nov. 14 as a
cutoff for certifying votes, given the sometimes conflicting language of state laws governing elections.
Bush's attorneys focused hard on the seeming mandate built into Florida law and argued that the court would overstep its constitutional role if it second-guessed the Legislature, which enacted the statute, or Harris, who, they said, had no choice but to implement it.
Harris's attorney, Joseph Klock Jr., recalled at one point how thoughtfully Harris pursued her legal obligations.
''I was kind of refreshed because the agency had actually asked for legal advice on it and what the legal standards would be for her to properly exercise her discretion,'' Klock said, responding to a question from Justice Barbara Pariente.
Pariente seemed almost to scoff at his account.
''She didn't really exercise her discretion,'' Pariente said, scowling and referring to Harris. ''It was in accordance with her prior legal decision that recounts that were not based on machine errors were not going to be allowed, and that was what she announced the day before.''
Klock also faced tough questioning from Wells, who expressed concern that over-strict enforcement of the deadline might disenfranchise some voters.
Gore's attorneys, led by David Boies, who won the US government's antitrust case against Microsoft, pointed time and again to their view that the law has conflicting wording about recounts and deadlines, and must therefore be read generously. Boies also alluded to the court's broad power to mediate the dispute, up to and including an order for statewide manual recount.
''Your Honor,'' Boies said, addressing Wells, ''if you concluded that it was essential to avoid unfairness or some kind of overweighting of one county's vote over another county's vote, this court has within its equitable power, to have a statewide recount.''
That assertion drew skeptical questioning from Justice Peggy Quince, who wondered if a remedy as sweeping as a statewide recount could jeopardize completion of the count by Dec. 12.
''How do you think a statewide recount would impact on the whole idea of getting these things done before Dec. 12, is it? And aren't we just adding another layer if we order a statewide recount?'' the justice asked.
''You could be, Your Honor,'' Boies conceded.
Bush attorney Barry Richard focused from the moment he stepped to the podium on the dangers of the court exercising the sort of broad discretion Boies alluded to. He warned the court not to overstep its constitutional role. The only legal course is to allow Harris to enforce the Nov. 14 deadline, he said.
''In order for us to do anything else, this court would have to disregard the most fundamental principles of separation of powers ... these appellants are asking you to step into the shoes of both the legislative and the executive branches, to rewrite these statutes, and to begin the process, which I suggest to this court is never-ending, of sitting as a determiner of an ultimate arbiter of the minutiae of facts that go into the election process,'' Richard said.
Bush's attorneys spent much of their time adding a legal argument to the political accusation the Texas governor has been making since election night when he briefly was anointed the victor in Florida: that the Gore camp is trying to manipulate the electoral process to get the results it wants.
''They seek to rewrite the statute to create a scheme that serves their personal problems or conveniences,'' said Carvin.
Both Carvin and Klock assailed the recounts on the grounds the process is flawed and will go on far too long.
''The fact is, this problem could have been resolved if the people asking for a recount, right or wrong, had completed the recount'' within the time frame, Klock said. ''This is not a legal problem. This is a political problem.''
The Florida justices barraged both men with challenges. Why does Harris need to certify the results so soon, asked Pariente. If someone decides to exercise his statutory right to a recount on the sixth day following the election, should the secretary be permitted to just say, '' Too bad?'' she pressed.
Carvin insisted that a recount is ''not a statutory right.'' Further, he said, the manual examination of the ballots is ''flawed and inherently unconstitutional.
''Then the court enters the great universe of chad,'' Carvin added sardonically, referring to the small pieces of paper that are supposed to be dislodged when a voter pokes a punch-card ballot.
Pariente persisted: ''Are you saying that it is the position of Governor Bush that he would not go along with ... a recount in other counties because the process is flawed?''
''We think the process is entirely subjective,'' Carvin said.
But isn't the process the same in Texas? she continued.
''I really don't know what Texas law is,'' Carvin admitted.
Klock defended Harris's insistence on the Nov. 14 deadline, saying it was within her statutory right to demand results by that date to keep the process on track.
The counties should have started a recount - manual or otherwise - in enough time to make the deadline, Klock said. ''That is like the same basic rule I had in high school with term papers,'' Klock said. Even students who started their papers the night before it was due still had to turn them in on time, he said.
Justice Major Harding asked Klock if Harris had tried to have it both ways, sticking by the Nov. 14 deadline but also saying, ''You cannot go forward and have this recount.''
''I think the record shows that no one paid any attention to the opinion of the secretary of state, Your Honor,'' Klock said. Klock suggested that the Gore camp save its objections for after Harris's certification, when the Democrats could contest the election.
That would be a public relations and political challenge for Gore, as well as a legal one, since it would put the vice president in the position of trying to change the results of the election after the winner had been declared and had started putting together his own White House team.
With both sides, the justices appeared to be testing whether there is ground for legal compromise.
''The justices were looking for a middle ground,'' said Heather Gerken, an assistant professor of law at Harvard University School of Law. Neither side is likely to get exactly what it wants, she said.
Gerken speculated that the justices might allow the recounts to go on, perhaps across the state, and order Harris to make a preliminary certification. Then, Bush could challenge that certification, Gerken said.
Steven Uhlfelder, the former chairman of the American Bar Association's election committee, said after the hearing that it would be a mistake to try to discern the ruling from the tone of the questions.
''I wouldn't bet on the outcome,'' said Uhlfelder, who was in the courtroom. ''Logic would have one believe that with the Electoral College deadline, if you let everyone have their rights you may not make it to Inaugural Day. The judges either will have to affirm the (deadline) or figure out some creative way to come up with a creative timetable.''
