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Archive for Monday, December 11, 2000

Justices ask Bush, Gore lawyers: What’s federal question?

December 11, 2000

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— The Supreme Court bombarded lawyers for George W. Bush and Al Gore with questions for 90 historic minutes on Monday in the case of the nation's contested presidential election. The justices set no timetable for a ruling on whether to resume a recount of Florida's questionable ballots.

"Where's the federal question here?" Justice Anthony M. Kennedy asked Bush's attorney, Theodore Olson, less than two minutes into the legal clash over the partial manual recount that the state Supreme Court ordered last Friday and that the U.S. Supreme Court halted less than 24 hours later.

"I have the same problem Justice Kennedy does, apparently," Justice Sandra Day O'Connor interjected at one point.

Justice David Souter, seeming to ponder the ground rules for a possible resumption in the recount, asked, "Why shouldn't there be one subjective rule for all counties."

Justice Stephen Breyer seemed to be thinking about the same issue, pressing Olson on what "sub-standards" should be employed for considering questionable ballots in addition to a decision about "voter intent."

Bush and Gore watched from a distance as their lawyers posted rival legal claims before a court that seemed eager to challenge the lawyers and probe their arguments for soft spots.

"I talked to some of our legal team. They are cautiously optimistic. If they are, I am," Bush told reporters after Olson had stepped before the nine justices to argue the recount should be shut down and Bush's certified victory allowed to stand.

Gore was at the vice president's residence, pinning his hopes on attorney David Boies and his ability to persuade a majority of the court to resume the recount. Three of Gore's children Karenna, Kristin and Albert III were among the spectators given seats to the historic arguments.

The court allotted 90 minutes for the oral arguments, which unfolded only two days after a 5-4 majority voted to stop the recount at least temporarily.

Justice Antonin Scalia, in a concurring opinion issued on Saturday, had said it "suffices to say ... that a majority of the court" believes that Bush had a substantial probability of success on the final ruling.

That meant that Gore faced an uphill struggle as the black-robed justices settled in their seats for the formal arguments. Boies said on Sunday that defeat at the high court could mean the end of the road for the vice president's 2000 quest for the White House.

There were a few moments of humor and embarrassment for one of the lawyers, Joseph Klock, representing Florida Secretary of State Katherine Harris.

Klock accidentally referred to Justice John Paul Stevens as "Justice Brennan," a reference to the late Justice William Brennan.

A moment later Klock stumbled again, mistaking Souter for Breyer. Souter responded, "I'm Justice Souter, you'd better give that up." And a few moments later, Scalia drew a laugh when he began a question by saying, "Mr. Klock, I'm Scalia."

The atmosphere inside the courtroom stood in contrast to the noisy scene outside the building where demonstrators protested beneath the chiseled marble inscription "Equal Justice Under Law."

While Kennedy and O'Connor, both of whom sided with Scalia in suspending the recount, asked questins about whether there was a federal issue for the justices to decide, other members of the court probed elsewhere.

Justice Ruth Bader Ginsburg, who opposed the suspension of the recount on Saturday, questioned why the nation's highest court should overrule the Florida Supreme Court's interpretation of state law and "say what the Florida law is."

In their questioning, the justices raised many of the issues that have swirled around the recount that holds the key to the White House. Bush has been certified the winner in Florida by 537 votes, but Gore looked to the recount to let him overtake his rival. The winner of Florida's 25 electoral votes stands to gain the presidency.

Thus, while the justices did not say when they plan to rule, their decision to hold oral arguments on extremely short notice signaled an understanding of the importance of speed.

Failure to settle the issue by Tuesday could expose the state's 25 electors to greater risk of challenge when the Electoral College votes are counted in Congress on Jan. 6. And finally, the state Legislature is poised to name its own state loyal to Bush.

Hovering in the background are inevitable questions about the ability of the winner either Bush or Gore to claim legitimacy after an election so close and contested.

Montana Gov. Marc Racicot, a Bush backer, dismissed the idea that winning a narrowly divided court decision on the votes of five conservative justices would cost Bush legitimacy as president.

"That's something that's bestowed by the American people," Racicot told CNN.

Bush's lawyer, Olson, said the Florida court made a "new wholesale, post-election revision" of state election law when it ordered the recount, and "wrenched it completely out of the election code."

But Boies, representing the vice president, said the Florida court was not making new law but interpreting laws passed by the Legislature. He also said any differences in the way the recount is conducted from one county to the next would be less than "the mere difference in the types of machines used" in different counties.

The Bush campaign is arguing that a recount won't be fair because Florida counties use varying standards to determine a voter's intent.

The "crazy-quilt ruling" is a "recipe for electoral chaos," Bush's lawyers said in court briefs filed Sunday. "It has created a regime virtually guaranteed to incite controversy, suspicion and lack of confidence, not only in the process but in the result that such a process would produce."

Attorneys for Gore argued in court papers that the Florida court simply placed "the voters whose votes were not tabulated by the machine on the same footing as those whose votes were so tabulated. In the end, all voters are treated equally: Ballots that reflect their intent are counted."

The U.S. Supreme Court first heard arguments in the case on Dec. 1. Justices unanimously set aside the Florida court ruling and sent the case back for clarification of why it allowed ballots to be recounted after the Nov. 14 deadline set by the Florida secretary of state.

In response, the Florida Supreme Court issued a 4-3 decision Friday ordering a hand recount of all undervotes statewide. Hours after the tally began Saturday, the U.S. Supreme Court voted 5-4 to grant Bush's request to halt the recount until the court determines its legality. When the counting stopped Saturday, an unofficial Associated Press survey put Bush's lead over Gore at 177 votes.

Tuesday is the date for choosing presidential electors under a provision of federal law that shields them from challenge in Congress. Members of the Electoral College will cast their votes for president on Dec. 18.

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