Justices focus on practicality of including hand counts

By ANNE GEARAN

Associated Press

TALLAHASSEE, Fla. – Florida Supreme Court justices seemed anxious to find a way out of the state’s presidential election jam today that would let disputed manual recounts continue – as long as the delay wouldn’t jeopardize the state in the Electoral College vote.

The central questions hanging over the state election – should ballots be recounted? How? For how long? – landed in Florida’s high court nearly two weeks after the Nov. 7 vote.

There was no word on when a ruling might be expected, but some of the justices showed a sense of urgency to answer the questions, which are of paramount importance to Democrat Al Gore and Republican George W. Bush.

At a nationally televised hearing that ran nearly two and one-half hours, the chief judge of the court, Charles T. Wells, repeatedly pressed both sides to predict how continued recounts would affect the Dec. 18 Electoral College vote.

“Tell me when Florida’s electoral vote would be in jeopardy,” Wells said to Bush lawyer Michael Carvin, a question he had earlier asked of Paul Hancock, lawyer for the state’s Democratic attorney general.

Both sides said they were intent on having Florida’s vote counted – no need to note their disagreement on how they wanted that vote to come out.

The hearing dealt only glancingly with major issues that both sides have been fighting about so hard in other courts and in public statements.

But oral arguments in an appeals court are rarely a comprehensive guide to justices’ thinking. In this case the court is being asked to rule whether the manual recounts requested by Democrats should continue, how the counts should be done and whether those results should be included in the final state tally.

After the hearing, Gore advisers said privately they were pleased by the tone of the justices’ questions and the fact that recounts could continue at least for now.

The Republican legal team expressed private concerns about what they perceived as tough questioning and pondered options that could include an emergency appeal to the U.S. Supreme Court if necessary.

Carvin, buffeted by questions from Justice Barbara Pariente, appeared to suggest a GOP fallback position if the court rules against Bush.

The law, he said in the hearing, “makes it clear that the federal courts – federal law will not allow this court or the Florida Legislature to change the rules of the election after the election has taken place.”

The justices were vigorous questioners from the outset, none more so than Wells, the 61-year-old Democrat who presided.

Over and over, he asked at what point the state would risk missing the chance to cast its 25 electoral votes. Sometimes, he punctuated the question with outstretched arms.

Both Bush and Gore need those 25 votes to win the White House.

Wells’ questions at one point sketched a scenario in which recounts would continue, perhaps into December.

Democrats said Dec. 12 was when Florida needed to have its results final, six days before the Electoral College meets. But Joe Klock, representing Florida Secretary of State Katherine Harris, said she was bound by a state law that required her to certify all ballots except for overseas absentees by seven days after the Nov. 7 election.

At the same time, asked by Justice Harry Lee Anstead whether the seven-day limit was absolute, Klock conceded, “Of course it’s not absolute.”

The justices ruled last Friday that Harris could not yet certify a winner and that the recounts could continue – though taking no position on whether those recounts must eventually be included. The Gore campaign, still trailing, hopes the recounts will give the vice president the presidency.

At one point today, Wells seemed to suggest that Harris might be permitted to certify a winner soon, so Democrats would have time to challenge the next step in the process – appointment of the state’s electors – and still resolve the dispute before the Electoral College meets.

Gore lawyer David Boies rebutted that Republicans would jump on any certification as evidence that the election was settled and “over with.”

He asked the justices not to allow appointment of the electors yet, but added, “I’m not urging in any way that this court do anything that would imperil Florida’s electoral votes.”

“They’re asking, ‘How do we count the votes of people who have not been counted without jeopardizing those that have been counted?’ ” said Laurie Levenson, professor at Loyola University Law School in Los Angeles.

The proceedings were carried live on the major television networks, providing Americans with a brief lesson in constitutional and election law. Wells noted the extraordinary circumstances at the start of the hearing.

“The court is certainly aware of the historic nature of this session and is aware that this is a matter of utmost and vital importance to our nation, our state and our world,” he said at the start.

Two former secretaries of state, Warren Christopher and James A. Baker III, sat listening intently in their capacity as representatives of the two White House rivals. Neither addressed the court.

Boies told the justices that if left alone, the three counties conducting recounts by hand could finish in a matter of days. Democrats accuse Harris, a Republican who campaigned for Bush, of delaying and confusing the counties as they tried to comply with their requests to recount.

Recounts are allowed under Florida law if a candidate asks for them within 72 hours and the local elections board agrees.

The state law is not clear on when those results are due, and much of the fight between Bush and Gore has been over whether Harris was right to impose a Nov. 14 deadline.

Erwin Chemerinsky, professor of constitutional law at the University of Southern California, predicted the court will allow hand counts for a short period with a firm deadline attached.

“I think they will rule that she can’t certify the election until the hand counts are done but they can set up a reasonable schedule.”

If recent history is a guide, the ruling will be posted on the court’s Web site even before it is available in paper form. The court has posted the barrage of legal filings in the case, and makes all its opinions available online. (The address is www.flcourts.org).