Florida high court hears Gore’s plea for recounts

By DAVID ESPO

Associated Press

Al Gore’s lawyer pleaded with a seemingly skeptical Florida Supreme Court today to order selective manual recounts that could revive the vice president’s fading quest for the White House. George W. Bush looked to the state’s justices to finally count his rival out.

“We believe the ballots can be counted in the time available,” Gore’s lawyer, David Boies said when Chief Justice Charles T. Wells noted the state’s presidential electors must be picked by Dec. 12. “Obviously time is getting very short.”

But lawyers for Bush and Secretary of State Katherine Harris both said Gore was asking the state’s highest court to exceed its legal powers.

“There is not a single shred of evidence to show that any voter was denied the right to vote,” argued Bush’s lawyer, Barry Richard, adding that state’s highest court has no business stepping in and overseeing recounts.

And Joseph Klock, representing Harris, said the court would have to “create a pile of law” to grant Gore’s request.

The vice president is hoping to overturn a trial judge’s ruling earlier in the week that refused to order manual recounts, and left unmolested Bush’s certified 537-vote margin of victory in the state that stands to pick the next president.

Gore invited running mate Sen. Joseph Lieberman to the vice presidential residence in Washington where they watched the oral arguments on TV, aides said. Campaign chairman Bill Daley flew to Florida to thank the lawyers on Gore’s behalf.

In Austin, Texas, Bush arrived for work at the state capitol just as the arguments were beginning in Florida. The governor did not watch earlier court proceedings in the election contest, though aides couldn’t immediately say if he was watching today.

There were other subplots in America’s riveting election drama, including an announcement that the GOP-controlled Florida Legislature would meet in special session to appoint its own slate of electors.

But nothing captured the national uncertainty better than a ceremony marking the beginning of work on the stands outside the Capitol in Washington where the next president will deliver his inaugural address.

“Hopefully, we will have the answer of ‘who’ sometime soon,” said Sen. Mitch McConnell, the Kentucky Republican who chairs the committee in charge of inauguration arrangements.

One tumultuous month after Election Day, several of the court’s seven justices pressed Boies, to explain why it would be proper to have manual recounts in some counties, but not statewide.

“I don’t think there has ever been a suggestion under state law that you should have a recount where it was not requested,” Boies replied.

Wells also observed that the courts could become involved “only if there was substantial noncompliance with election laws,” not merely when – as Gore alleges – some legitimate votes were left uncounted.

“I don’t think that’s what we’re arguing,” Boies said. He added it was “undisputed that there are voter errors and machine errors” that have affected the statewide count.

The statewide winner of Florida – and its 25 electoral votes – stands to gain the White House and take the oath of office as the nation’s 43rd president on Jan. 20.

“I represent the vice president and Senator Lieberman,” Boies said in the opening moments of a hearing than ran eight minutes over its allotted hour. But that was all he could say before Wells cut him off and pressed him to explain why the court – and not the Florida Legislature – should be settling the issue.

A half-hour later, Richard had scarcely introduced himself to the court when the justices began peppering him, too, with questions.

“This is nothing more than a garden variety appeal” under state law, he said. “I believe the circuit court is subject to appeal, but under a very limited fashion.”

But he said Gore’s lawyers were requesting something the law didn’t allow – essentially asking the state Supreme Court to assume the job of the trial court.

But Justice Harry Lee Anstead pressed Richard on whether Judge N. Sanders Sauls had reviewed any of the questionable ballots in three Florida counties. Richard said no ballots were looked at, because, he added, there was “no basis to do that” unless Sauls first ruled that Gore was entitled to some sort of recount.

Richard replied that the court did not need to address that question because there is no evidence of fraud or voting machine malfunction.

“Good morning and welcome once again to the Florida Supreme Court,” Wells said shortly after he and the six other justices filed into the neoclassical courtroom. That was a passing reference to arguments little more than two weeks ago in the same place.

“Now is the last chance for a legal judgment to be rendered in this case,” Gore’s lawyers argued in papers filed Wednesday on the eve of formal arguments.

That was fine with Bush, certified the winner in Florida, and eagerly looking forward to a presidential transition and inauguration. “It seems like all the different court suits are working their way to finality and hopefully we can get this over with quickly,” he said.

The court heard arguments on an unusually condensed timetable, a gesture to the overriding national importance of the issue and a Dec. 12 deadline for picking electors. It was only Monday when Sauls rejected Gore’s challenge to Bush’s certified statewide victory and refused to order any recounts.

Even before Sauls’ courtroom had cleared, Gore’s lawyers rushed to file an appeal, and the state Supreme Court announced on Tuesday it would allow the lawyers to make their cases in public.

It was not clear when the state’s justices would deal with another case – instructions from the U.S. Supreme Court to clarify a ruling last month that allowed manual recounts to proceed beyond a state-mandated deadline. As a result of that ruling, Gore cut Bush’s lead by nearly 400 votes.

The plan to summon the Legislature into session drew sharp criticism from Democrats. “The only thing missing on the proclamation is the postmark from Austin, Texas,” charged Rep. Lois Frankel, leader of the House Democrats, referring to the Bush campaign.

The GOP leaders, Speaker Tom Feeney and Senate President John McKay, said they were acting to preserve the state’s right to have its electors counted in the Electoral College on Dec. 18, and had not been pressured by Bush’s campaign to act.

McKay added, though, that his preference was for electors loyal to Bush, saying they should be appointed “based upon the vote totals that were available on November 14, and equally important, on the laws that were in place as of the date of the election on November 7.”