Justices Focus on the ‘How’ of Recounts

The justices of the Florida Supreme Court struggled Monday to find a practical way to complete the manual recount of the state’s ballots without jeopardizing its electoral votes.

The justices did not fully tip their hands on how they will rule, or when. But while their questions and comments pressed both sides, the justices also offered several strong hints about their concerns.

The court’s members seemed focused much less on whether than on how to include the results from the manual recounts that Texas Gov. George W. Bush has fought fiercely to exclude from the official vote total here.

“They seemed to be assuming the recount would occur,” says David Cardwell, a former Florida election commissioner.

While that would seem to presage a defeat for Bush, the justices showed little inclination to dive into the issue of exactly which ballots should be included in the count. That could herald an eventual loss for Vice President Al Gore.

In the recounts so far, Gore has not been making the gains his Democratic supporters had expected--especially in Palm Beach County, which is a critical arena. It is becoming increasingly clear that the vice president may not be able to overcome Bush’s official 930-vote lead in the state unless the recounts include ballots that county election boards are currently excluding. In particular, Gore’s supporters would like the election boards to include ballots that have only partially punched or, dimpled, chads.

Gore’s lawyers urged the court to set standards by which the county election boards supervising the counts should determine a voter’s intent. But the justices seemed inclined to leave that issue to the boards themselves, or to lower courts.

Local Autonomy Argument Weighed

Justice Harry Lee Anstead, for example, suggested at one point that the decision by Florida Secretary of State Katherine Harris not to accept the results of manual recounts had the “net effect” of overruling the legal right of local officials to determine the conduct of the balloting.

That point would be a major argument for allowing the hand counts to continue, Cardwell and other legal observers noted. But, they said, the same logic of protecting local autonomy would militate against the court’s imposing its judgment on which ballots the local officials should count.

The issue of exactly which ballots to count “is a horrible problem for them,” said UCLA law professor Daniel Lowenstein, an election law expert. “There is no clear legal principle on this. The law says nothing about it in Florida” other than that each county canvassing board is supposed to examine ballots and attempt to discern the will of the voter.

“These are not the most coherent statutes in the world,” said Lowenstein.

Bush’s side, of course, worries that Gore could gain more as the recounts continue, and his lawyers have been anxious to have them stopped.

Perhaps anticipating that the high court was unlikely to grant that request, Bush’s lawyer, Michael Carvin, at one point offered a thinly veiled suggestion that the Republicans might seek to appeal further--to the U.S. Supreme Court.

The law, he warned the justices, “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.”

Unlike the many lawyers, commentators and politicians who have trumpeted the cause of either of the two presidential contenders, the seven justices avoided taking sides in the larger political battle. Instead, they pressed the competing lawyers to explain their view of the Florida election code.

They often seemed unsatisfied with the answers.

The get-down-to-business tone was set in the opening moments. When one lawyer from the Democratic side spoke grandly of the right to vote as the “most cherished right in our democracy,” Chief Justice Charles T. Wells cut him off in mid-sentence and asked a nuts-and-bolts question--one he repeated in various forms several times during the argument--about how the deadlines set in federal law will affect the state’s decision on picking its electors.

Wells, in particular, seemed very concerned about deadlines. But by contrast with Harris and her lawyers, who have stressed the Nov. 14 deadline in the law, the cutoff date that he focused on was the practical deadline of how long the recounts could go while still allowing the state to choose its 25 electors by Dec. 12.

“What’s the outside date that we’re looking at which puts Florida’s votes in jeopardy?” Wells asked.

The Democrats’ lawyers did not offer much help, except to say the recounts in Palm Beach and Miami-Dade counties should not take much longer and that Harris should not need a lot of time to certify the election results.

The justices sounded troubled by this open-ended claim and seemed reluctant to simply ignore the vote-counting deadlines in state law. The key deadline is the legal requirement that counties submit their election returns to Florida’s secretary of state within seven days of the election.

“If we knock out the seven days, as you’re suggesting, we cut off the time limits,” said Justice Major Harding. He said he wondered how the justices on their own could “reconstruct” the law with new deadlines.

“Why isn’t the secretary of state the person to set that date, instead of this court?” asked Justice Leander Shaw Jr.

But when the time came for the Republicans to present their arguments, the justices sounded equally troubled by the claim that the manual recounts being undertaken in three South Florida counties were illegal and should be ignored.

“What’s the purpose of allowing these manual recounts,” if the votes do not count, asked Anstead.

Florida’s laws allow candidates to ask for a hand recount and gives county election boards broad power to order one whenever they find “an error in the vote tabulation that could affect the outcome of the election.”

Several justices queried the Republican lawyers about whether strictly enforcing the seven-day deadline would make that right “illusory.” The deadline would discriminate against large, urban counties in which completing a recount in a few days would be impossible, Justice Peggy Quince suggested.

When Joseph Klock Jr., the lawyer for Harris, presented his arguments, Anstead and other justices pressed him heavily on whether the seven-day deadline could not be waived under certain circumstances, forcing him eventually to concede that “of course it’s not absolute.”

Klock and other lawyers supporting the GOP side of the argument suggested that the proper solution was for Harris to certify the results and for Gore, if he wished, to then formally “contest” the election results.

But several justices noted that it would be difficult--perhaps impossible--to contest the results if the recounts had not been completed. And David Boies, Gore’s lead attorney in the case, urged the court not to accept the Republican suggestion.

If Harris were permitted to certify the results, he said, she would also quickly appoint Republicans as the state’s electors. At that point, the Republicans would be able to declare the election “over with,” he said.

“I had a fairly strong impression that most, if not all, the members of the court really thought it was a good idea to continue the hand count. They seemed to think that, contrary to the view of the Bush campaign, that that is the way to get the fairest and most complete vote,” said Lowenstein.

On the other hand, Lowenstein said he thought the biggest problems for the Democratic lawyers was the concern for clear deadlines. The justices seemed concerned about “whether they would have to make it up out of thin air,” he said.

The question of how to set a new deadline seemed difficult even for Boies, who has a reputation as one of the nation’s top courtroom lawyers.

Asked how a new deadline would be set, Boies said at first that the decision would require “a lot of judgment.” But near the end of the hearing, he told the justices that they could set standards for counties to use in determining whether a ballot was valid and tell them “to get it done in seven days.”

The court also seemed unimpressed by the Republican argument that some counties were being recounted but not others.

Presented with that argument by Carvin, Justice Barbara J. Pariente pointedly asked if the Republican candidate would want a statewide recount if the court were willing to order one.

“No, your honor,” Carvin said. “I think we should follow the process that’s set out in the statute.”

‘The Justices Looked Really Prepared’

Stanford law professor Pamela Karlan, another expert on election law, said she was impressed by the Florida justices, if not by all the lawyers who argued before them.

“The justices looked really prepared. In some ways, they were better prepared than the lawyers. Their questions were on point,” she said.

Loyola Law School professor Richard Hasen said “the judges were asking the right questions. This is a court that knows the world is watching them. They all had done their homework. They had read the briefs, and knew the statutes.”

University of Florida law school Dean Jon I. Mills amplified on that.

“I hope a lot of the nation watched it, because they will have seen that the court has a hard problem and they will make diligent effort to follow the law,” Mills said. “The court won’t decide the election. The court will decide the law on the votes. The votes will decide the election.”

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Times political writer Ronald Brownstein contributed to this story.