A Case of 'Probability' vs. 'Possibility'?

  • Share
  • Read Later

Florida Supreme Court Chief Justice Charles T. Wells questions lawyers

Thursday morning, in his oral argument before Florida's Supreme Court Justices, Gore lawyer David Boies looked like a man who has reached the end of a very long road.

Drawn and pale, Boies took some time to get warmed up — and really only scored points at the end of his rebuttal, when he insisted there was precedent for limited recounts. In order to rule otherwise, Boies argued, the court would have to do the unthinkable: Alter existing law.

In what the vice president says could be his last legal stand in this drawn-out election, the Gore team presented its appeal of Leon County Circuit Court Judge Sanders Sauls' ruling, which dismissed Gore's contest of the Florida election results. And because Gore's lawyers had to show some flaw in Sauls' decision or interpretation of the law, it was the judge's opinion itself that sustained the most intensive scrutiny during the 90-minute session.

Did Judge Sauls use old law?

Did Judge Sauls, the court asked, use the correct standard to arrive at his ruling? The Gore team argued the negative, pointing out that because Sauls depended upon old election statutes from 1974 and 1982, rather than using a 1999 precedent which allows a looser interpretation of "contest" requirements, the circuit court decision is untenable. The Bush lawyers, on the other hand, insisted that Sauls ruled the only way he could: The Gore team, after all, did not satisfy existing standards for a recount, which require a plaintiff to prove there is "reasonable probability" that a recount will yield a changed election results.

Not so, argued Boies in his rebuttal. In fact, precedent dictates that "reasonable probability" is the wrong standard; as long as the plaintiff proves "reasonable possibility" of a changed result, a recount must be allowed. "We have identified specific votes" that were not counted, Boies told the Justices. "There was a clear voter intent expressed on those ballots and they were not counted."

Also at issue is the question of limited recounts. While the Gore team insists there is precedent for recounts in specific precincts or counties, and that the GOP had an opportunity to contest the election results, the Bush lawyers contend that any, even limited, recount requires a statewide recount — which, they point out, there simply isn't time for at this point.

Questions, questions, questions

The Florida Justices, who ruled unanimously in Gore's favor in their last decision, in which they extended the Florida certification deadline, were relentless in their questioning, bringing Bush lawyer Barry Richard to a near-shout of frustration at one point during his argument. But there was also palpable sense of caution, even as the Justices peppered the attorneys — at the beginning of the session, Chief Justice Wells asked each attorney to explain why the contest case rested in the court's jurisdiction at all. After Monday, when the U.S. Supreme Court handed the recount deadline decision back to Florida's high court, asking for "clarification," it's not hard to understand why Florida's judges might be a bit wary of overstepping their bounds on this case — especially since a ruling against Bush would almost certainly remand their opinion right back under the critical eyes of the nation's top judges.