The nine Justices of the U.S. Supreme Court peppered lawyers representing Al Gore and George W. Bush with questions while they argued competing claims in the Florida election contest yesterday.
Gore attorney David Boies, who argued a successful contest of Florida’s certified election result before the Florida Supreme Court last week, reasoned before the U.S. Supreme Court that a hand recount of the state’s undercounted ballots was necessary to determine which candidate will be the next President.
Theodore B. Olson argued Bush’s position, that the manual recount ordered by the Florida Supreme Court was unconstitutional. According to Olson, the Florida election law provisions are not subject to review by the state Supreme Court, and that state legislatures were empowered by the Constitution to determine how presidential electors are chosen.
Boies argued that the Florida High Court had the authority to review every state statute, including election law.
“State law allows judicial determination of any election to determine the rightful winner of an election,” Boies said.
Olson insisted that the only votes that should be counted were those with the ballot chad cleanly punched through.
“The only legal votes are those where the voter made sure that the chad was completely punched and was not hanging off the ballot,” Olson said.
In a 5-4 decision, the High Court ordered an immediate stay of county by county recounts in Florida on Saturday, less than 24 hours after the Florida Supreme Court ordered a manual counting of the state’s undervotes – ballots that were not counted by machine.
In a concurring opinion Justice Antonin Scalia claimed that the Florida Supreme Court ordered a count of illegal votes and that that process would “cast a cloud” on the election’s legitimacy.
“One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, ‘legally cast votes,'” Justice Scalia said in the opinion.
The Justices concentrated on the Bush claim that varying standards of what constitutes a vote in Florida counties violated Bush’s “equal protection” under the law, as provided by the 14th amendment to the Constitution.
At one point during the Court proceedings Justice Sandra Day O’Connor rebuked the Florida Supreme Court for its handling of last week’s Supreme Court order to review its extension of the state’s election certification deadline.
“It just seemed to kind of bypass us and assume that all those changes and deadlines were just fine and they could go ahead and adhere to them,” Justice O’Connor said, “and I found that troublesome.”
Justices David Souter and Stephen Breyer hinted at a possible compromise decision, sending the case back to Florida and defining what qualifies as a vote. However, the five Justice conservative block on the Court, Rehnquist, Scalia, Thomas, Kennedy and O’Connor, who voted to stay the recounts, seemed unlikely to change their vote as a result of yesterday’s deliberations.
Justice Anthony Kennedy questioned Boies on whether or not the standard for counting votes in Florida was uniform.
Yes, Boies answered, “the standard is whether or not the intent of the voter is reflected by the ballot.”
“That’s very general,” Justice Kennedy said, “In this case what we are concerned with is an intent that focuses on this little piece of paper called a ballot, could that vary from county to county?”
Boies replied, “I think it can vary from individual to individual.” But added that machines inherently used different standards when counting votes.
More than four weeks after the Presidential election, its result may rest with the Supreme Court.
“If no votes are counted, then I think that’s the end of the road,” Boies said.
The decision by the Florida court to include manual recounts in the state total trimmed Bush’s razor thin lead in the state from 537 to 193 votes, after the results of a recount in Palm Beach County and a partial recount in Dade County were included in the total.
