ALLAHASSEE - The presidential election goes to trial today.
At 2 p.m., the five men and two women of the Florida Supreme Court will be asked to decide this fundamental question: At what point in a razor-thin election should the counting of votes stop and a winner be declared? Meanwhile, the recounting of 1.6 million votes in three South Florida counties continued, a laborious task that could determine whether George W. Bush or Al Gore becomes president.
Bush, sitting on a 930-vote lead after dominating the returns from overseas ballots, wants the court to throw out the recounts on the argument that the deadline to certify the election passed last Tuesday. Gore's lawyers, citing one of the court's own past decisions, will say the recounting should go on as long as necessary to uphold the most fundamental right of a democracy - that each voter's franchise be honored.
In addition, Secretary of State Katherine Harris, the Republican who set the deadline that Gore wants to overturn, filed her own brief in the case yesterday, urging that the court reject the vice president's argument. She blamed the voters for the various problems with double-punched or inaccurately punched ballots.
''The Florida Election Code places a great premium on the need to record every voter's vote,'' Harris's brief said, but ''not in situations where the failure to properly reflect a voter's choice is caused by the voter's failure to follow directions.''
The outcome of the case will hinge on the views of the Supreme Court justices. To the dismay of Republicans, in this state where the governorship and Legislature are in GOP hands, the Supreme Court would appear to have decidedly Democratic sympathies. Six members were appointed by Democratic governors, and the seventh was appointed jointly by a Democrat and Republican.
But the court includes some members who hail from the Southern conservative wing of the Democratic Party, including Chief Justice Charles T. Wells, who has often dissented from the court's more liberal members. The court has split 4-3 in some of its toughest cases.
In a case frequently cited by Democrats, the Supreme Court in 1998 upheld the election of a Volusia County sheriff whose victory had been contested because many voters marked ballots improperly.
''The court should not frustrate the will of the voters if the failure to perform official election duties is unintentional wrongdoing and the will of the voters can be determined,'' the court ruled. That has led some analysts to conclude that the court leans toward backing Gore's request to allow recounted votes, including instances in which the now-famous chads were not completely punched through on ballots.
But the much-publicized Volusia case was different from the one facing the court today. The Volusia case involved a petition to overturn election results after they had been certified. This case is about whether election results should be certified by a deadline set by the Legislature.
''This exact issue has never been interpreted by the court,'' said Steven Uhlfelder, a Tallahassee lawyer who is former chairman of the American Bar Association's election law committee. ''The guts of this case is: How long can you recount?''
Uhlfelder and other observers note that many analysts said Circuit Court Judge Terry Lewis last week was leaning toward the Gore position. But Lewis noted pointedly that he had little evidence to justify extending the deadline, and he upheld the right of Harris to certify the vote. Gore promptly appealed Lewis's decision, and the Supreme Court stopped that certification pending the outcome of their deliberations.
Indeed, the Volusia case underscores a fact that has received little attention until now: Florida law allows the loser of an election to contest the results in court 10 days after they have been certified. Thus, even if Gore loses the current case before the Supreme Court and the results are certified with Bush as the winner, the vice president could return 10 days later and contest the outcome. Then the court fight could start over again.
The justices are considered a collegial group, as demonstrated by their unanimous decision Friday to prevent Harris from certifying the election results. But they have split on some noteworthy cases, such as the constitutionality of using the electric chair.
Some observers break the court into the following groups: Justice Harry Anstead, who grew up in a Jacksonville housing project, and Barbara Pariente, who was a personal injury lawyer, are considered liberal and often vote together. Pariente and Anstead are both from Palm Beach County, the scene of some of the most contested voting patterns. They are often joined by a third justice, Leander Shaw, another liberal and the longest-serving member, appointed by Governor Bob Graham in 1983. Shaw posted photographs of an electrocuted inmate on his Web site last year.
Wells, the chief justice and a conservative, often disagrees with the trio. That leaves the last three justices: Peggy A. Quince, who was jointly appointed by the late governor Lawton Chiles and by Governor Jeb Bush, brother of the presidential candidate; Fred Lewis, the son of a West Virginia coal miner; and Major Harding of Jacksonville, a former Republican now registered as an Independent. Harding is the only justice who is not a Democrat.
But the usual labels of conservative or liberal may not apply to this election law case.
Like many courts, the Florida Supreme Court may not necessarily issue a clear-cut decision. The Gore camp hopes the court will require that recounted ballots be included, while the Bush camp hopes the court will simply say that Harris has the right to certify the election results that would hand a victory to the Texas governor. But the court might take a middle ground, telling the counties to keep on counting and saying that Harris should examine the final recount to determine whether it should be allowed. If that happens, the pressure once again would be on Harris as an arbiter of the election.
There are many other possibilities. The court could set its own deadline for recounts. The court could decide to get involved in such ground-level details as what constitutes a valid vote. Democrats say that ballots with ''hanging'' chads and even ballots that are just dimpled should be included. Republicans allege that many of the ballots are being mishandled.
The Bush legal team, in its filing to the Supreme Court yesterday, repeated its argument that Harris's deadline ''was reasoned and reasonable, and was perfectly consistent, indeed, mandated by, the laws of Florida.''
Still, the Bush legal team points out one of the arcane questions that could decide the case. The Bush brief notes that there are conflicting statutes in Florida law. One says the Elections Canvassing Commission ''shall ignore'' late returns, while the very next statute in the state code says the commission ''may ignore'' the returns.
Given that conflict, the justices may decide that provides an opening for the court to determine the law's intent.
