Justices Debate Bush vs. Gore

U.S. Supreme Court justices, hearing the case of George W. Bush vs. Albert Gore Jr., questioned attorneys for both sides Monday and gave every indication that they remain sharply divided, with the conservative majority inclined to preserve Bush’s lead in Florida.

Two of the nation’s highest-profile lawyers--Theodore B. Olson for Bush and David Boies for Gore--argued the case for the presidential candidates before a packed chamber that included three of Gore’s children and top campaign officials from both camps.

While the 90 minutes of give-and-take was intense, it was short on surprises. Two days earlier, the justices had voted, 5 to 4, to suspend manual vote recounts in Florida, and that same split seemed to hold Monday as the court heard arguments about whether to stop those selective counts entirely and thus end Gore’s bid for the presidency, or to resume them using a stricter standard for determining a legal vote.

None of the five justices in the majority hinted at readiness to switch sides and back the Democrats’ demand for a final recount of the remaining untabulated ballots in Florida.

Barring such a switch or an unforeseen compromise, Texas Gov. Bush may finally win the presidency this week by one vote--in the Supreme Court.

Indeed, conspicuously missing from Monday’s oral argument were comments from the justices saying that they did not want to rule on this case--and in effect, decide who becomes president.

The high court did not signal when it would rule, but most lawyers said they expected a decision within a day or two.

For the second time in 11 days, the nation could listen in on the argument, thanks to an audiotape released at the hearing’s completion.

In their comments and questions, the five most conservative justices leaned toward Bush and his claim that the Florida Supreme Court-ordered recounts are unfair and unconstitutional. “There have been two wholesale revisions of the Florida election code” since election day, complained Olson.

Seeming to agree, Justice Sandra Day O’Connor said that the state judges had ignored a “big red flag” warning them that they could not change the rules after election day.

While many have seen O’Connor as a possible swing vote, she gave no indication Monday that she favors resuming the hand counts. The four liberal justices, meanwhile, defended the Florida Supreme Court’s call for hand recounts of all ballots in the state that remained unread by tabulating machines. That ruling on Friday shrunk to 154 the vote margin separating Bush and Gore and launched a county-by-county recount of more than 43,000 ballots.

A Questioning of Voter Intelligence

While the liberal justices voted Saturday against stopping the recount, several of them agreed Monday that a clearer standard is needed for judging the unread ballots.

Boies carefully explained that the “contest” provision in Florida law gives judges broad power to inspect disputed ballots in close elections.

As is often the case at the Supreme Court, the most important arguments came not from the attorneys but from the justices themselves. While they do not address each other directly, they often throw out questions that steer the argument in their direction.

Two crosscurrents flowed through Monday’s argument.

The conservative justices seemed to be searching for a clear theory that would justify overruling the Florida Supreme Court on federal grounds.

Meanwhile, two of the more liberal justices--David H. Souter and Stephen G. Breyer--floated the idea of a compromise that would set stricter standards for recounts.

“Why shouldn’t there be one objective rule for all counties?” Souter asked.

Such a standard would avoid disputes over whether a ballot with a “dimple” or a “hanging chad” should be counted as a legal vote. It also would quell the complaints from Republicans that the ballots are being judged under hazy and differing standards.

“If [the recounts] were to start up again, totally hypothetically . . ., what in your opinion would be a fair standard?” Breyer asked Bush’s lawyer.

Olson responded that the “clear intent” standard set by the Florida judges was not clear and precise.

What then would you suggest? Breyer asked again.

“Well, certainly as a minimum, the penetration of the ballot card would be required,” Olson said.

But none of the conservative justices was lured into a discussion of the standards for recounting ballots. Instead, they focused on the various theories for overruling the Florida judges.

O’Connor suggested that the state judges had violated Article II of the U.S. Constitution by changing the election rules. This provision says that state legislatures “may direct” the choosing of the presidential electors.

“Does that not mean that a court has to give special deference to the legislature’s choices insofar as a presidential election is concerned?” she asked.

By this theory, the Florida judges could have violated Article II in their Nov. 21 ruling when they waived the state’s seven-day deadline for submitting all vote tallies to Tallahassee and extended the time for hand recounts.

Florida Court Clarifies Ruling

Justice Anthony M. Kennedy said that the state judges on Friday may also have violated the Constitution’s guarantee of equal protection of the laws by allowing different rules for deciding what is a legal ballot.

“It’s standardless,” Kennedy said. “It could vary from county to county.”

Unlike their argument on Dec. 1, the justices did not bring up the 1892 case of McPherson vs. Blacker and its rule that state judges cannot invoke their state constitution to waive election deadlines. Taking the hint, the Florida judges did not rely on their state constitution in the 4-3 ruling announced Friday.

On Monday afternoon, the judges in Tallahassee issued an opinion clarifying that their first ruling, extending the tallying deadline, also was based on state election law, not the Florida Constitution. But the clarification may have come too late.

From the start, Gore’s challenge has focused on the fact that the tabulating machines did not register a vote for president on thousands of paper ballots in South Florida.

In its ruling Friday, the Florida court said that the thousands of uncounted votes put the election’s outcome “in doubt” and, in such an instance, state election law requires a hand count of these remaining ballots.

But Justice Antonin Scalia suggested that these were not legal ballots in the first place and, therefore, need not be counted.

“I think there’s no wrong when a machine does not count ballots that it’s not supposed to count,” the justice said.

“That’s absolutely correct, Justice Scalia,” Olson replied.

“When the voters are instructed to detach the chads entirely, and the machine, as predicted, does not count those chads, there isn’t any wrong,” Scalia continued.

A few minutes later, attorney Joseph P. Klock Jr., representing the Florida secretary of state, stressed the same point.

“If the ballot is not properly executed, it’s not a legal vote,” Klock said. “The only problem we have here is created by people who did not follow the instructions.”

Later on, Justice O’Connor also questioned why these untabulated ballots should be reexamined.

When Boies said that indented ballots could show a voter’s intent, she objected. “With no holes punched? That was counted as proper in Palm Beach?” Later, she added, “Well, why isn’t the standard the one that the voters are instructed to follow, for goodness sakes? I mean it couldn’t be clearer.”

It Was a Slow Start for Bush’s Lawyer

O’Connor sounded likely to join Scalia in saying that the Florida judges ignored state election law by demanding hand recounts of the unpunched ballot cards.

As it had 10 days earlier, Monday’s argument started badly for Olson.

Justices Kennedy and O’Connor quickly disputed his claim that the Florida high court had no authority to review the decision of Circuit Judge N. Sanders Sauls.

“It may not be the most powerful argument we bring,” Olson admitted.

“I think that’s right,” Kennedy replied.

But it soon became clear that the two justices agreed with Olson’s broader claim that the Florida state judges had wrongly changed the rules of the presidential election.

Many legal experts have speculated that Chief Justice William H. Rehnquist and his colleagues would not want to tarnish their reputations by handing down a pro-Republican ruling on a 5-4 vote. But the conservative justices, all appointees of Presidents Reagan or Bush, have voiced no such concerns.

Two weeks ago, the court quickly intervened in the Florida dispute when Olson appealed the first Florida Supreme Court ruling that extended the time for the hand recounts.

Last week, they found a compromise by issuing a unanimous decision that set aside that ruling and sent the case back for reconsideration by the Florida judges.

High Court Has Shown Increasing Boldness

Over the last five years, the Rehnquist court has shown an increasing boldness in striking down Clinton-era laws and liberal federal regulations.

The high court has knocked down part of the gun-control provisions in the Brady Act, struck down the Violence Against Women Act and stripped the nation’s 5 million state employees of their federal protection against age discrimination. Earlier this year, the justices also nullified the Clinton administration’s new cigarette regulations.

Each of these decisions came on 5-4 votes, with the majority consisting of Rehnquist, O’Connor, Scalia, Kennedy and Clarence Thomas. If the same majority holds, it can end the Florida election fight and confirm Bush as the next president.

Several hundred spectators and demonstrators gathered outside the court before the hearing. Some had been in line since Saturday afternoon, camping out in wintry conditions in the hope of getting seats in the chamber.