By
The Associated Press
TALLAHASSEE, Fla. - With the race for the presidency in the balance, Florida's Supreme Court peppered lawyers with questions yesterday on the legality of manual recounts under way in selected Democratic-leaning counties.
"We have a longstanding policy ... that says the real interests here are the voters," declared Chief Justice Charles T. Wells, who asked repeatedly how long the state had to certify a winner and still have its voice heard when the Electoral College meets to pick a president.
The candidate who gains those 25 electoral votes - either George W. Bush or Al Gore - stands to become the nation's 43rd chief executive.
The proceedings were carried live on the major television networks, providing Americans with a brief lesson in constitutional and election law. A court spokesman said there would be no ruling yesterday. There was no indication when there might be a decision.
Democrats said Dec. 12 was the answer to Wells' oft-asked question, six days before the Electoral College meets. But Joe Klock, representing Florida Secretary of State Katherine Harris, said she was bound by a state law that required her to certify a winner by seven days after the Nov. 7 election.
At the same time, asked by Justice Harry Lee Anstead whether the seven-day limit was absolute, Klock conceded, "Of course it's not absolute."
In legal skirmishing that stretched to two and one-half hours, lawyers and the justices ranged over a variety of issues in Florida's contested election. The hearing played out while recounts were under way in Miami-Dade, Broward and Palm Beach Counties, all Democratic jurisdictions where Gore hopes to overtake the 930-vote lead Bush holds in the contested election. As the arguments ended, ongoing recounts showed Gore gaining 134 votes so far in the three counties combined.
The arguments touched on the possibility of a statewide recount, on the standards in use in the recounts, on the acknowledged contradictions in Florida state law and on the conflict between Florida statute and federal law.
There was argument, as well, over voter intent - an issue of paramount importance, given the number of questionable ballots in the recount counties.
"The court is certainly aware of the historic nature of this session," said Wells as the afternoon session began, "and is aware that this is a matter of utmost and vital importance to our nation our state and our world."
Two former secretaries of state, Warren Christopher and James A. Baker III, sat listening intently in their capacity as representatives of the two White House rivals.
"God save these United States, the great state of Florida and this honorable court," intoned the high court's marshal, Wilson Barnes, as the justices - five men and two women - entered the chamber.
Democrats asked the court to endorse the recounts and to place them under a uniform standard. Bush's lawyer, joined by Klock, argued they should be stopped.
Harris had been ready to declare Bush the winner of Florida - and likely the presidency - on the basis of Election Day votes certified last Tuesday, subject to amendment only by overseas absentee ballots counted on Friday.
Her edict was halted by the high court late last week, pending yesterday's arguments and any subsequent ruling on the subject.
There was no timetable for a ruling by the state Supreme Court.
The justices played an active role from the outset yesterday, none more so than Wells, a 61-year-old Democrat who presided.
Over and over, he asked at what point the state's 25 electoral votes would be in jeopardy. His questions at one point sketched a scenario in which recounts would continue, perhaps into December.
"Tell me when Florida's electoral vote would be in jeopardy," Wells said to Bush lawyer Michael Carvin, a question he had earlier asked of Paul Hancock, lawyer for the state's Democratic attorney general.
"Clearly it's in jeopardy now," said Carvin, but then Wells prodded him to support that contention.
Later, Wells seemed to suggest that Harris should be permitted to certify a winner so Democrats could then have time to challenge her appointment of the state's electors - and still leave time to resolve the dispute before the Electoral College meets.
"Why isn't it correct that we are jeopardizing with each passing day, Florida's" vote in the Electoral College, he said, "if we don't allow the certification" of a winner.
David Boies rebutted that Republicans would jump on any certification as evidence that the election was settled and "over with."
In case of an adverse ruling, he also urged the justices to make sure that Harris didn't appoint electors pending a challenge by Gore.
The justices showed their impatience with carefully prepared lawyerly arguments.
In the opening moments of the arguments, Wells asked Hancock to skip the general rhetoric and get to the legal points in contention.
A few moments later, after Hancock said it was physically impossible to certify all election results within the seven days mandated in one section of state law, Justice Barbara Pariente interrupted to ask what evidence there was to support that contention.
"I don't know that there's any evidence in the record," he replied. "I think it's intuitive."
Hancock urged the court to use "the full reach of its authority to establish procedures."
The goal, he said, should be to come up with an election that is "fair, that is perceived as fair to the world and in fact is fair, that it counts the vote of all people who attempted to exercise that vote."
Justice Major Harding asked whether there was any current law to guide the court's decision on allowing recounts and setting standards for them - or whether the justices would have to come up with "some inspiration" and put it down on paper.
"There is some information in the record, 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," said David Boies, a well-known courtroom lawyer added recently to Gore's legal team.
Isn't that the Legislature's job? Harding asked.
"I don't think that's what they have done," Boies replied.
Pariente asked whether selective recounts were unfair to voters who live in counties where the ballots were tabulated only once - a point that Bush has made in his legal filings.
"Any candidate could have requested a recount," Boies said, noting that no county rejected a recount petition.
Boies said Gore would accept a statewide recount "We believe the court has the power to order that," he said.
"Aren't we just adding another layer if we request a statewide recount?" asked Justice Peggy Quince.
Boies said yes, but added the most populous counties are already recounting their ballots.
