It must be fun to be a state Supreme Court justice. You can interrupt lawyers in mid-bullshit and tell them to fast-forward to the relevant part. You can challenge their misrepresentations and glib evasions with disdain and impatience. And instead of your impudent actions resulting in an immediate end to a press conference and a lifelong kibosh on obtaining interviews, the shysters treat you with deference, bowing and genuflecting and calling you “Your Honor.”
“It seems as though the court’s concerns were really focused on the practical,” said professor Terence Anderson of the University of Miami School of Law.
After being introduced with a great big “Hear ye, hear ye, hear ye,” the seven Democrat-appointed, robe-clad justices spilled out onto the bench one by one. The chief justice settled first into his chair in the center, followed by the justice who sits to his immediate right, then the justice who sits to his immediate left, and so on, right, left, right, left — a well-choreographed presentation. But despite this display of aplomb, they were all business, with little tolerance for the kind of blather both sides have been contributing to the national discourse.
“I would … like for the lawyers to have an understanding that the court considered” the many filings and counterfilings the various barristers had dropped on them, Chief Justice Charles Wells said. “Since we have a limited amount of time, we would ask that we get right to the heart of the matter as you see it, because we are fully cognizant of the facts and the procedures that … have now brought you here.”
Despite that warning, Paul Hancock, who was representing Democratic Attorney General Bob Butterworth, ran up to the bench with a bucket of rhetoric. “The court has previously referred to the attorney general as ‘the people’s attorney,’” Hancock said. “I stand here on behalf of the attorney general in that capacity … The right to vote is perhaps the most cherished right in our democracy. The real parties and interests in this lawsuit are not the presidential candidates nor the parties that support them –”
“Mr. Hancock, excuse me for interrupting,” Wells said. “I would really like counsel on both sides to pay attention to a concern of mine.” Wells then spelled out the reason, in his mind, everyone was there: to figure out if there is any real way this mess can be resolved.
The justices were interested in the law — specifically in how they could possibly come to terms with conflicting statutes that allow for hand recounts but also mandate a deadline for certifying votes. And they did not seem all that impressed with the mostly brilliant, often egomaniacal attorneys before them. They just wanted answers.
“Tell me when Florida’s electoral vote would be in jeopardy,” Wells asked attorneys from both sides — as if he were trying to devise a solution. Wells and other justices expressed serious concern that any protracted legal battle would deprive Florida of representation in the Electoral College, which meets on Dec. 18.
The justices seemed set on reconciling the matter — if possible. Assuming that the hand recounts should be included in the Florida vote tally, how can that be reconciled with last Tuesday’s 5 p.m. certification deadline? Would any proactive ruling infringe upon the separation of powers between the legislative and judicial branches of the Florida state government? Since the court didn’t necessarily have clear jurisdiction over the matter, would it be better for it to allow the vote tallies to be certified — at which point Gore’s team could officially “contest” the election?
Throughout the give-and-take, all seven appeared to be unimpressed with arguments from either side that were rooted in rhetoric instead of law. When the attorneys made statements that weren’t provable, such as when Hancock asserted that hand recounts in the most populous counties could not be completed in a week, the justices — or in this case, Barbara Pariente — challenged them for evidence. (There wasn’t any for this claim; Hancock said it was “intuitive.”)
“Don’t change the rules by which an election should be conducted,” Michael Carvin, Bush’s lead attorney, implored the high court, arguing against acceptance of a hand recount. “There could be ad hoc decision making that could be influenced by subjective and partisan concerns.”
Such claims might sit well with Republican partisans who have bought into the spurious Bush camp claim that hand recounts are inherently bogus and even rare. But the court was well aware that Florida law — not to mention Texas law — finds such recounts not only legal but, at least in Texas, preferable to a machine recount. As Gore attorney David Boies argued, “I cannot imagine how the [Florida] Legislature could provide for these manual recounts and yet have those recounts be an illusory right.”
So Justice Peggy Quince, jointly appointed in 1998 by outgoing Democratic Gov. Lawton Chiles and incoming Republican Gov. Jeb Bush, cut to the nub by pointing out the big problem with the GOP argument — that these are legitimate votes, cast by legitimate voters who have a right to be heard, if possible.
“That still sounds like you’re coming back to all of these ballots that would just not be counted — all of these voters would be disenfranchised,” Quince said to Carvin. “What other way would you determine the voters’ intent, if it’s not picked up by machine and you don’t count it manually?”
Likewise, bulldog-faced Justice Harry Lee Anstead heatedly debated an occasionally flummoxed Joe Klock, the lawyer for Florida Secretary of State Katherine Harris, about any number of her actions, which Democrats have slammed as so blatantly partisan and pro-Bush as to be laughable. (Harris, co-chairwoman of Bush’s state campaign and a good friend of his brother Jeb, has thrown up a plethora of obstacles to the hand-recount efforts.)
After getting Klock to agree that Harris had no role — “absolutely not,” he said — in whether or not counties could conduct hand recounts, Anstead presented a hypothetical anecdote that undermined Harris’ justification for discarding three counties’ manual recounts.
Harris based her trashing of the recounted numbers on the statutory deadline for certifying the votes seven days after the election — a position she has clung to like the Peanuts character Linus to his security blanket. But what if the members of the Miami canvassing board were to “go off to the islands” for a week instead of completing their vote-counting duties by the seven-day deadline? Anstead asked. Would Harris simply not accept their votes? Is the seven-day deadline absolute?
“Of course it’s not absolute,” Klock finally allowed.
Justice Leander Shaw hinted at his view of Harris’ latest moves by asking “if Florida has provided a protest procedure” by which vote tallies can be challenged at the local level before the election has been certified. “Can the secretary of state exercise her discretion … so as to frustrate that procedure?” he demanded.
Likewise, Democrats were peppered with questions about their more dubious claims and actions. Attorney Andrew Meyers, representing Broward County — which decided on Sunday to start including the unpenetrated “pregnant” and “dimpled” chad ballots along with the others — was asked by Shaw whether this wasn’t “unusual, changing rules in the middle of the game.”
The larger problem for Gore and his lawyer friends seemed to revolve around how the justices could allow the hand recounts without blatantly violating the Florida law that mandates last Tuesday’s certification deadline. The Democrats’ attorneys were asked repeatedly for suggestions as to how they thought the court could rule to keep everything within the parameters of the law. But they didn’t provide many answers.
“There is some information in the record,” said Boies, “but to be completely candid with the court I believe there is going to have to be a lot of judgment applied by the court as well.”
“Are we just going to reach up for some inspiration and put it down on paper?” Justice Major Harding asked. When some justices discussed a possible “window” in which the counties could finish their hand counts and give them to Harris — who disingenuously was claiming to have only rejected them because they would come after the deadline — Shaw asked, “What would be this court’s authority to open up the window of opportunity?”
The Gore team attempted to present some answers. For one, said the lawyers, Harris rejected the recounts before she even got them. They argued that in doing so she abused her discretion in the matter, since amended returns can only be rejected after you get them. But some of the justices seemed doubtful. Nor were the Democratic attorneys willing to suggest a timeline for a conclusion.
“The problem for Democrats is that there isn’t something written in stone as to a remedy for the current situation,” said CBS legal analyst Andrew Cohen. “And judges don’t like to create remedies themselves.”
Since predicting how a high court may rule can be like prospecting for oil with a divining rod, both sides also seemed to hint about possible Plan B’s. Carvin told the court that the Bush team, should it be unhappy with the court’s ruling, may challenge its decision in federal court. “Federal law will not allow this court or the Florida Legislature to change the rules of the election after the election has taken place,” he warned.
Boies, for his part, cautioned the justices. He understood how they might choose to allow Harris to certify the election to better establish Supreme Court jurisdiction over the matter — which is far more clearly applicable during the post-certification “contesting” time frame than during the pre-certification “protesting” period. But if they did that, he said, they’d better stay the statute that allows Harris to immediately name electors, or else the battle would be guaranteed to get grimmer.
Should either side prepare its contingency plan? “It’s virtually impossible to read tea leaves in this sort of situation,” Cohen said. The justices seemed to lean in favor of having the hand recounts stand, but they appeared stymied as to how to do so. When the court adjourned at around 5 p.m., no one really seemed to have any idea what decision would come down. Legal scholars, commentators and normally windy pundits kept their lips tight. Both sides presented legitimate arguments, and compromise appeared to be impossible.
Forgetting for the moment about what they would rule, I asked Allison Richard, wife of Bush attorney Barry Richard, when she thought the court would decide what to do.
After all, Richard’s mother-in-law has been after her and her husband to let her know if they’ll be able to come to her house for Thanksgiving — grandkids in tow, of course.
“I keep asking my husband, ‘When will the justices rule?’” she laughed. “He keeps saying, ‘They’ll rule when they rule.’”