Hearing injects order into quest for a resolution

By David M. Shribman, Globe Staff, 11/21/2000

t turns out that the seven Florida Supreme Court justices called upon to make one of the most extraordinary rulings in American political history themselves have ordinary concerns.

They want to know whether it was reasonable for Secretary of State Katherine Harris to wait for the tally of absentee ballots but to cut off the tally of the recounts. They want to know whether those presiding over the recounts in three Florida counties are changing the rules in the middle of the recount about how to discern voter intent. They want to figure out what is fair to all concerned - the candidates, the voters, the political system.

And mostly these justices - equally tough-minded and uncompromising with the advocates of both Vice President Al Gore and Governor George W. Bush - want to know when the presidential election can finally be brought to a close.

Of all the remarkable elements of this presidential election - the unusually swift triumph of the early front-runners, the pallid nature of the national conventions, the tense general election battle between two candidates barely separated in ideology or in levels of support, the two-week overtime in a contest that seems to defy conclusion - yesterday's nationally televised court hearing may have been the most remarkable.

It telescoped into one chamber and one event all of the questions that have made this election so unsettling and, ultimately, unsettled. And, perhaps alone in all the episodes of this tortuous political process, the justices presided over a common-sense discussion about this election free of cant and spin.

They seemed to look with curiosity if not with contempt upon the conduct of the two camps since Election Day. They seemed to look with skepticism if not with disbelief upon the notion that a great nation's leadership could be determined by county officials' rulings on whether a ballot chad hanging by two corners constitutes a vote. They seemed to look with wonder if not with disapproval upon the notion that some counties would recount their ballots while others did not.

And they implicitly raised questions about whether the recounts are giving the supporters of the vice president extra opportunities to bolster their vote count - and whether Harris, whose zeal to certify the Florida results so worried the Gore camp, was adjusting her rulings to changing circumstances.

On all of those questions so much rests - not only the identity of the next president, but also the nation's view of the credibility of the political system and perhaps even the legitimacy of the man who eventually prevails in this long struggle.

The lines in this court battle were unambiguous. Bush's supporters, raising questions about manipulation of the ballots in selected heavily Democratic counties, oppose including the recounted figures in the final tally. Gore's supporters, arguing that every vote should be counted and considered, support including the recounted figures. But even if the recounts continue, there is no guarantee that the vice president will pick up the 931 votes he needs to inch ahead of Bush.

Yesterday's hearing provided an intermission of sobriety in a post-election period that has been marked by tumult, conflict, angry charges, and even angrier counter-charges. The attorneys' remarks were laced with self-interest, to be sure, but there was no trampling of ballots, no eating of chads, no signs, no slogans, no chants, no handbills.

But there were also none of the facile answers that fill cable television each evening, none of the certainties that both sides have advanced in these two weeks of tension, none of the easy remedies that are floated wherever political professionals, or political scientists, or voters gather in these late-autumn days of confusion and contention.

It is now the job of this court to sort through these arguments, to distill out the self-interest, to examine the merits of each side's case and to decide whether it is willing to make a narrow or broad ruling, sanctioning or rendering meaningless the recounts - or, perhaps, even ordering a statewide recount to put all 67 counties of Florida and both candidates in the election on the same footing.

In an election that seems to possess an endless supply of ironies and inconsistencies, the interests of the relaxed, detached candidate (Bush) were represented by the more heatedly argumentative attorneys while those of the intense, detail-oriented candidate (Gore) were represented by the more understated and deferential attorneys.

But that was the theater. At the heart of this session was a question posed by Bruce Rogow, the attorney for Palm Beach County: ''Does the recount count?'' The answer to that four-word question could determine a presidency.