Florida court weighing Gore's last recount bid

By Michael Kranish, Globe Staff, 12/8/2000

ALLAHASSEE - The Florida Supreme Court, which Al Gore's lawyers call ''the final arbiter'' of the election, yesterday peppered lawyers for both presidential campaigns with skeptical questions about whether a recount can or should be accomplished by next Tuesday, the deadline for choosing presidential electors.

The justices left the court last night without issuing a decision. They could make a ruling today.

While the state's highest court handed Gore a major victory two weeks ago in extending the recount deadline, several justices expressed concern yesterday that Gore's new request to manually tabulate just 13,000 ballots from two counties might be unfair or unlawful or simply too late.

Chief Justice Charles T. Wells grilled Gore's lawyer, David Boies, about whether such a limited recount would be consistent with a state law requiring a tabulation of all ballots when recounts are conducted.

''That's specifically what the statute says, is it not?'' Wells said. ''Recount all the ballots?''

''I think that's right, Your Honor. I think that you could interpret the law that way,'' Boies said. But then he suggested a different interpretation that would help the vice president: ''I think you could also interpret the law in the sense of saying all the ballots that were requested to be manually recounted.''

But Wells continued to be skeptical, saying that allowing a partial recount would ''definitely be a change in the law.''

The distinction was crucial for the vice president. If the court decides that the law allows only a recount of all ballots, Wells said there would not be enough time before the Dec. 12 deadline to finish counting and pick representatives to the Electoral College. Instead, Boies urged the court to allow a limited recount of 13,000 disputed ballots that showed no presidential vote in a machine but might reveal a selection in a hand count.

''We believe these ballots can be counted in the time available,'' Boies said. ''Obviously, time is getting very short. We've been trying to get these votes counted for many weeks now.''

Bush's lawyer, Barry Richard, urged the justices to reject any type of recount.

''There is not a single shred of evidence to show that any voter was denied the right to vote,'' Richard said.

Two blocks away, two separate trials that could help Gore also were unfolding. In Leon County Circuit Court, Democratic voters in Seminole and Martin counties urged that more than 25,000 absentee ballots - most of which were marked for Bush - be thrown out, because Republican workers were allowed to alter some of the ballot applications. While either case has the potential to shift enough votes to give Gore the election, the vice president has not joined the suits, because they run counter to his argument that every vote should be counted.

At the Supreme Court, the justices opened the hearing with pointed questions about whether they even have jurisdiction over the case.

No sooner did Boies introduce himself to the court yesterday than Wells cut him off and asked whether the Supreme Court had any right to be involved in the case. Wells asked Boies why he and other lawyers in the case had failed in earlier hearings to bring up the 1892 federal case of McPherson v. Blacker, which gave state legislatures ''full power'' to pick representatives to the Electoral College.

On Monday, the US Supreme Court cited McPherson v. Blacker when it questioned why the Florida Supreme Court extended a deadline for recounting votes that had been set by the Florida Legislature. Wells seemed disappointed that attorneys for Bush and Gore had failed to mention a case deemed so crucial by the US Supreme Court. He said that the attorneys ''seemingly ... did not believe that it was important for our consideration.''

Boies responded by arguing that the Blacker case did not preclude the Supreme Court from interpreting the Legislature's laws, while Richard disagreed.

''I think what McPherson v. Blacker tells us is exactly as Your Honor suggested, which is that this court does not have the ability in this particular case, involving presidential electors, to disregard'' the law written by the Legislature.

The six Democrats and one Independent on the Florida Supreme Court heard 68 minutes of oral arguments from the Bush and Gore legal teams. The nationally televised hearing was only the latest of many venues of this post-election drama, in which legal arguments have been heard in local circuit courts, federal courts, US appeals courts, and the US Supreme Court.

At stake is the presidency. Bush was certified as the winner of Florida by a 537-vote margin, with the victor claiming the state's 25 electoral votes and the presidency. Gore filed a ''contest'' of the certification of Bush as the winner, but he lost the case in Leon County Circuit Court when Judge N. Sanders Sauls rejected the vice president's request for a recount.

Boies repeatedly told the justices yesterday that it was unfair for Sauls to reject the recount request without examining ballots.

That ''is inconsistent with the way a trial goes, which is that you look at the evidence before you reach that conclusion,'' Boies said.

Several justices sounded sympathetic to Boies's claim, wondering aloud why Sauls did not even look at the disputed ballots.

''Isn't it highly unusual for a trial court to admit into evidence certain documents ... and yet never examine those documents before making their decision,'' Justice Harry Lee Anstead asked Bush's attorney. ''And didn't that happen here, with the trial court admitting the disputed ballots into evidence, yet never looking at those documents?''

Richard responded that ''there was no basis in law for the trial court to do that, until after the plaintiff had carried its burden of proving that there was some necessity to do so.''

Another justice, Barbara Pariente, was also skeptical of the decision not to examine the ballots. She noted that the relevant law required the court ''to ensure that each allegation in the complaint is investigated, examined, or checked.''

''If it isn't to mean that the Circuit Court is to look at the very ballots that have been brought to the court for investigation, what does that section mean in the context of this litigation?'' Pariente said.

Richard responded by saying again that Gore's lawyers had failed to prove their case and that there was thus no need to examine the ballots.

''We had an absolute failure on the part of the plaintiffs here,'' Richard said. ''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 Florida Legislature loomed over the high court, both figuratively and literally. The Legislature, which meets in a bland modern building that towers over the stately Supreme Court, is to hold a special session beginning today to pick electors pledged to Bush. The Republican-dominated Legislature plans to delay final action until next week, in the event that Gore concedes or the matter is resolved by the high court.

The posture of the US Supreme Court also complicated matters for the Florida Supreme Court. On Monday, the nation's highest court questioned whether the Florida Supreme Court had properly interpreted the law when it extended the initial recount deadline. As a result, the Florida Supreme Court justices yesterday seemed especially concerned that their actions be viewed as an interpretation of the Legislature's intent, not as a rewriting of the law.

At a press conference after the Supreme Court hearing, Boies was asked what Gore would do if he loses the case. While stressing that he expects to win or at least score a partial victory, Boies agreed with other Gore aides who have said the Florida Supreme Court would be the ''final arbiter'' of the extraordinarily tight presidential race.

Asked whether Gore should decide against appealing to the US Supreme Court, Boies said: ''That certainly is my recommendation. ... I don't know of a basis for appealing that decision to the United States Supreme Court.''