WASHINGTON - The United States Supreme Court deliberated on the historic presidential wrangle yesterday, concentrating on the vexed question of what should count as a legitimate vote, and making life tough for the lawyer representing Al Gore.
Lawyers for both sides were quizzed on voting in the disputed Florida election, where
25 pivotal Electoral College votes are at stake.
At least six of the nine justices fired sceptical questions at Vice-President Gore's lawyer, David Boies.
The justices ended the 90-minute morning session without issuing an immediate ruling on whether hand counting of votes in Florida would resume. A decision was expected today.
George W. Bush's legal team went into yesterday's arguments with a temporary victory after the US Supreme Court agreed on Sunday by a 5-4 vote to halt the recounts in Florida until it issues a decision.
Boies was subjected to relentless questioning about the fairness of the vote recounts in Florida, which he later described as a "45-minute interrogation." However, he added, "I don't think that you can read into a court's questions what they are going to decide."
He had the task of persuading either Justice Sandra Day O'Connor or Justice Anthony Kennedy - considered the most moderate of the court's five conservatives - to change sides on the recount issue.
Both, however, posed searching questions with O'Connor wondering aloud why punch card ballots without a hole in them should be counted as votes.
Sounding exasperated, O'Connor questioned the standard used for recounts, which varies from county to county. "Why isn't the standard the one the voters were instructed to follow, for goodness sakes? Why don't we go to that standard?" she asked Boies.
It was unfair, she said, for voters to be treated in different ways.
Boies argued that the standard adopted was uniform, fair and involved discerning the clear intent of the voter.
Justice Antonin Scalia said that recount standards in Florida had become so unclear that they varied from table to table within counting halls.
Justice David Souter, who backed Gore last weekend admitted he had "problems" with the Vice-President's case, while Kennedy mocked the Democratic mantra of "count every vote" as the pat answer to every question.
O'Connor asked whether the Florida Supreme Court ruling last Saturday ordering the recounts usurped the authority of the Florida Legislature to make law.
"Isn't there a big red flag up there? Watch out. That's, I think, a concern that we have," O'Connor said. As a former state legislator in Arizona and former state court judge, O'Connor is known as a strong advocate of states' rights.
Justice Stephen Breyer asked Bush lawyer Theodore Olson what would be a fair standard to use to count the votes.
Olson replied that at a minimum "penetration of the ballot card" should be required and that holding ballots up to the light to look at "dimpled chads" was against the law.
When Boies was asked what standard he would use, he replied the standard in effect in Texas, Bush's home state, which also relies on the intent of the voter.
In the first question just minutes into Olson's argument, Kennedy asked, "Where's the federal question here?" Without a federal question, the Supreme Court should not be involved in the dispute.
"I have the same problem Justice Kennedy does, apparently," O'Connor said.
Justice Ruth Bader Ginsburg questioned why the nation's highest court should overrule the Florida high court's interpretation of state law and "say what the Florida law is."
Boies said the counting of 60,000 ballots could be completed quickly. "We believe it could be done in the time available."
Meanwhile, political moves continued in Florida. State House and Senate committees approved resolutions in a key step as part of the plan by the Legislature to pick its own slate of electors for Bush.
Both Bush and Gore need Florida's electoral votes to put them over the 270 mark to win the presidency. The deadline for selecting the electors is today, and the Electoral College meets on December 18 to select the President.
For Bush, Olson argued that the state court engaged in a "wholesale revision of Florida election law" after the November 7 election, violating federal law and the US Constitution. Boies replied that the Florida court simply was trying to act fairly and interpret state law to make sure that every vote counts.
In Tallahassee, Democratic lawyers urged the Florida Supreme Court to reverse two lower court rulings and invalidate thousands of contested absentee ballots in a longshot legal bid that would favour Gore.
- REUTERS, AGENCIES
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Tense wait for ruling after tough hearing
WASHINGTON - The United States Supreme Court deliberated on the historic presidential wrangle yesterday, concentrating on the vexed question of what should count as a legitimate vote, and making life tough for the lawyer representing Al Gore.
Lawyers for both sides were quizzed on voting in the disputed Florida election, where
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