Florida Supreme Court clarifies

As the U.S. high court hears oral arguments, the Florida court says its ruling was based on state law.


Salon Staff
December 11, 2000 6:02PM (UTC)

On a day when the U.S. Supreme Court heard oral arguments in the case regarding manual recounts mandates by the Florida Supreme Court, the state court clarified its initial ruling in response to the U.S. Supreme Court's request.

In deciding whether it had jurisdiction over the case of George Bush vs. Al Gore, the U.S. Supreme Court asked the state court to clarify whether it made its ruling based on state law or constitutional interpretation. The latter, the U.S. Supreme Court suggested, could lead to the federal court overturning the state court ruling.

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Earlier Monday, U.S. Supreme Court Justice Sandra Day O'Connor seemed peeved that the state court did not address the federal court's request for clarity in its decision Friday, which restarted the manual counts of all undervote ballots statewide. But in an announcement that came just after 6 p.m. EST, the Florida court ruled it had based its decision on an interpretation of state statute, not the Constitution.

Now, all eyes are on the U.S. Supreme Court, which holds the fate of the 2000 presidential election in its hands. Oral arguments in the case of George W. Bush vs. Al Gore commenced in the nation's highest court at 11 a.m. EST Monday. Aggressive questioning by the court's deeply divided justices revealed mixed signals as to how the justices might rule in the case.

Legal teams for the two camps were each given 45 minutes to argue their case. Arguing for Bush was Ted Olson, a veteran Supreme Court litigator. Olson split his time with Joseph Klock, an attorney for Florida Secretary of State Katherine Harris. David Boies, who has represented Napster and the Justice Department (in its case against the Microsoft juggernaut), argued on behalf of Gore.

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In his arguments before the court, Olson decried the Florida Supreme Court's ruling, describing it as a "wholesale, post-election revision of Florida's election law," one that he argued violated Article 2, Section 1 of the Constitution.

Boies, meanwhile, argued that the Florida Supreme Court did not create law, as many have alleged, but merely interpreted the state's election laws.

Some of the toughest questions for the Bush team came from two justices who are believed to be possible swing voters. "Where's the federal question here?" asked Justice Anthony Kennedy, who ruled in favor of stopping the hand counts on Saturday. "I have the same problem Justice Kennedy does, apparently," said Justice Sandra Day O'Connor, who also supported the stay.

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And Justice Ruth Bader Ginsburg, who ruled against the stay, asked why the Supreme Court should overturn the state court's decision and "say what the Florida law is."

But there were also questions that drilled holes in the case presented by the Gore camp. Justice David Souter had concerns about protocol if the court were to allow a recount to resume. "Why should there be one subjective rule for all counties? If there isn't, why isn't it an equal protection violation?" Souter asked, referring to the varying methods used to determine the intent of voters in undercounted ballots.

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Kennedy also expressed skepticism about the Florida Supreme Court's ruling. "Do you think in the contest phase there must be a uniform standard for counting the ballots?"

At one point, during questioning of Gore attorney Boies, O'Connor expressed dismay that the Florida court apparently hadn't answered questions the U.S. Supreme Court had demanded that it answer when it remanded an earlier case back to that court. "I did not find a response to our remand," O'Connor said. "I find that troubling."

Later, in an appearance in front of the court, Olson addressed criticisms by the justices of his case. "This is very much a federal issue," he said. "What happens in Florida affects people all over the United States."

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Also talking to reporters outside the courtroom was Boies, who likened his experience before the justices to a "45-minute interrogation." Boies also said he was unprepared to answer some of the questions his rigorous interlocutors lobbed at him.

In a ruling Saturday, the court issued a stay of hand counts in Florida. The 5-4 decision cast light on a chasm between the conservative and liberal sides of the court that had been cloaked in the court's unanimous decision in a related case less than two weeks ago.

Though Gore hasn't said so himself, those close to him report he's ready to call it quits if the U.S. Supreme Court rules against him Monday. "If no votes are counted, then I think that's the end of the road," said Boies.

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Bush told reporters that he is "cautiously optimistic" about his chances of prevailing in the latest Supreme Court case.

Separately, the 11th U.S. Circuit Court of Appeals on Monday affirmed the decision of a federal judge in Florida not to discard 2,000 overseas, mostly military ballots that arrived late and sometimes without postmarks. U.S. District Judge Maurice Paul had ruled against the Democratic plaintiffs who sought to have the ballots discarded -- a move that would have shifted the outcome of the race toward Gore.


Salon Staff

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