The issues before Fla. High court

By John Aloysius Farrell, Globe Staff, 12/8/2000

Q. Does the Florida Supreme Court's hearing yesterday mean the presidential election is finally heading toward an end?

A. Maybe. The justices grilled lawyers from both sides in the course of a hearing on Al Gore's challenge of the Florida results.

Though Gore's legal team appeared to score points with several of the justices, others worried that they lacked the time, the authority, or a good reason to overturn the decision of Circuit Court Judge N. Sanders Sauls, who ruled against the vice president Monday.

Q. What are the issues at hand?

A. The Supreme Court justices wondered aloud whether they have the jurisdiction to rule on the case, whether they can legally order manual recounts of just the few thousand ballots that Gore's lawyers are requesting, whether there was sufficient time to implement such a remedy, and whether Gore had met the burden of proof required by Florida law.

Q. Why wouldn't the Florida Supreme Court have jurisdiction over the case?

A. The justices have been warned by the US Supreme Court that, under federal law, state legislatures control how presidential electors are chosen in each state. The Florida statutes implicitly, but not explicitly, give the Florida Supreme Court the authority to review a lower court's decision in the case of contested elections.

''Why does that not mean that the courts of this state can only be involved in resolving controversies and contests where the Legislature explicitly gives this court that power?'' asked Chief Justice Charles T. Wells.

However, by the end of the hearing, even George W. Bush's attorneys had agreed that the Florida Supreme Court has jurisdiction to rule on the case.

Q. Why not be fair and recount all the ballots, not just the ones Gore has identified?

A. First, it would take too much time. By federal law, a state is supposed to resolve all questions about its electoral votes by Tuesday, so that they can be cast by Florida's electors on Dec. 18.

It seems impossible to conduct a statewide recount, or perhaps even selected countywide recounts, by Tuesday. That is one reason why the Gore team wants the recounts limited to several-thousand contested ballots, not the million trucked to Tallahassee from south Florida.

If the court does order recounts, it is likely that the Florida legislature - worried that the state could lose its electoral votes by failing to meet a deadline - would get into the act and appoint its own slate of electors. This would likely exacerbate the political crisis, not resolve it.

Finally, a statewide recount might also violate federal law, because it is not a remedy authorized by the state Legislature, and so could be an impermissible change of the rules after an election, which the US Supreme Court has warned against.

Q. What burden of proof does Gore have to meet?

A. Gore has to show that there were serious errors in the handling of ballots in Miami-Dade and Palm Beach counties, and that the errors involved enough votes to cost him victory in Florida.

Q. What serious errors does Gore allege?

A. When the ballot cards in Miami-Dade and Palm Beach counties were run through the automatic voting machines, thousands of ballots failed to record a vote for president.

By examining these so-called ''undervotes,'' election officials determined that several-hundred voters had tried to punch a hole in their ballots, but failed to poke a good enough hole for the machines to read.

Palm Beach County officials recounted all their undervotes, giving Gore a net increase of some 200 votes, but did so with too strict a standard, say the vice president's attorneys.

Miami-Dade officials began to recount their undervotes, giving Gore several-dozen more votes, but then halted the recount with 80 percent of the ballots still to be counted.

Q. Why did Gore lose in the Circuit Court?

A. Part of the reason was a Catch-22 that Gore's lawyers encountered in the lower court. Judge Sauls would not count the undervote ballots until he concluded that there was proof of error, and without a count of the ballots Gore's lawyers could not offer their best proof.

Gore's legal team appeared to have won the sympathy of some justices on the Florida Supreme Court, who asked whether Sauls had erred in not examining the ballots or may have placed too heavy a burden of proof on the vice president.

Q. What were the other court hearings about yesterday?

A. Democrats in Seminole and Martin counties argue that Republican election officials unfairly allowed GOP operatives to fill out absentee ballots for Republican voters, while denying the same help to Democrats.

Q. Does Gore have a hope in those cases?

A. A slim one, perhaps. While not a party to those suits, Gore hopes that the courts will throw out thousands of absentee ballots from the two counties, thus giving him enough votes to claim victory in Florida. However, that remedy is so drastic as to make these cases legal long shots.