Chief Justice Charles Wells listens to oral arguments
That's the day Florida has to send one slate of 25 electors or the other — Bush's or Al Gore's — to Washington to anoint one candidate as the choice of Florida voters and thus the president-elect of the United States. And the fact that these seven justices — who constantly interrupted their petitioners with questions and what-ifs — immediately started bandying the date about was a hint that the highest court in Florida has in its seven minds to do more than interpret the law. It may be looking for a grand solution.
That's pretty much what the Gore team, led by the rumpled and disarmingly lucid superlawyer David Boies, was asking for. Boies argued that the only discretion Secretary of State Katherine Harris really needs is to make sure her office can muster a final answer in time for Dec. 12. And since her duties are merely a "ministerial act" — a contention the Bush team later appeared to confirm — certainly the hand counts could go on until, say, December 9 or so without serious damage to the rights of the Florida electorate.
The Bush team, looking for a strict reading of a murky set of Florida election statutes — we know they're murky because both sides urged the Justices to read them as a whole before deciding — already has Judge Terry Lewis's reading backing it up. So it fought the case like it's been fighting the p.r. war: by containment, one step at a time.
The first line to draw was between "protest" and "contest." Joseph Klock, for Harris, argued that the Gore team was "trying to conduct a contest proceeding before there is a certification." Meaning that if Democrats have evidence that the election result Harris wants to certify is incorrect, let her certify it — and then the law gives them from the first certification (a week after the election) until the end of the world to do it.
The next line was between machine counts and hand counts. In the case of serious machine error, of course Harris would use that discretion of hers to include a manual recount to be included in the total. But in the absence of anything that compelling, it was up to her. (This one appeared not to sit well with Justice Peggy Quince, who seemed to grasp the Democratic argument that a hanging-chad ballot could pass through the machine unread without it really being "machine error" — but was still a vote deserving of tabulation.)
In any case, the Bush team argued, the Florida law was "agnostic" whether machine counts or manual counts were better or fairer. If a candidate and a county wanted to count by hand, that was fine — they'd just better get it done in seven days if they wanted to be sure it would be included. The Bush team held up Volusia County, which merely hand-counted and filed to Harris without controversy, as a shining example. It seemed to impress the Justices more than Boies' arguments why the other counties had taken so long to start.
But the suddenly and selectively benign attitude of the Bush team toward manual recounts — do them or don't do them, just get them in on time — occasionally tripped them up with seven judges who have been at least perusing the papers. (Justice Barbara Pariente, almost absurdly, even tried to nail Bush heavy-lifter Michael Carvin on Bush's Texas hand-count law.) At one point, in the middle of his "contest" argument, Carvin had to say whether the current hand counts would proceed beyond a Harris certification. "No" was not the answer this court was looking for.
The Bush team wants this court to read the statutes with a magnifying glass, reading "may" like "may" and "must" like "must." The Gore team wants these seven Justices to acknowledge that this very special election is going to require some rule-bending — the big picture is what counts. Bush closer Barry Richard reminded the Florida high court that they were above all judges, and that the Gore team was asking them to "step into the shoes of both the legislative and executive branches" and prune the law to fit the needs of the moment.
That may well strike this rather activist court as just what the situation calls for.