At issue is the Florida Supreme Court's Friday ruling ordering hand recounts of undervotes statewide. Saturday, SCOTUS stayed that recount by a vote of 5-4, and collected briefs from both sides on Sunday afternoon in preparation for Monday's hearing.
From the start, it was an energetic session; the Justices (other than the always taciturn Thomas and the unusually quiet Rehnquist) peppered Bush attorney Ted Olson with pointed questions. First up: Why is this case a federal issue? Justice Kennedy, widely considered one of three possible "swing votes," along with Rehnquist and O'Connor, was particularly concerned about whether the Court should consider the case at all.
Too vague a standard?
The Court must get involved, Olson argued, because Florida's Supreme Court's rulings instituted "wholesale revisions" to Florida law and it is up to SCOTUS to set those revisions straight.
Then it was on to the question of the year: How can an individual discern the elusive "intent of the voter," which the Florida legislature has established as its primary standard for counting votes? Justice Ginsburg wanted to know how Olson, who has argued that the Florida Supreme Court has consistently intruded on the jurisdiction of the state legislature during this contest, would react to new, clearer standards. "You've dismissed 'intent of the voter' as too vague a standard," she said. "But at least that came from the legislature. And if something were added to that, wouldn't you be arguing more vociferously against changing something from the all-powerful legislature?"
Justice Souter also came down particularly hard on Olson and may have given the attorney a bit of a scare. He and Justice Breyer grilled the Bush lawyer as to what standard might be acceptable "in the hypothetical situation that a recount does recommence." Souter pointed out that without an objective standard, some voters might be disenfranchised, which would violate the "equal protection" clause of the Constitution. "Don't we need a standard," the Justice demanded? Olson agreed that should the high court remand the case to the Florida Circuit Courts and Secretary of State Katherine Harris, he would accept any ensuing standards. Perhaps sensing Olson's fatigue, Justice Scalia jumped in with a rhetorical question designed to clarify Olson's position on the admissibility of recounts, to which the Bush attorney replied, gratefully, "You're absolutely right, your honor."
A recount is impossible, Olson concluded, because standards are inherently subjective and violate the Constitution's equal protection clause.
Joe Klock, attorney for Katherine Harris, took the podium for about 10 minutes, echoing Olson's arguments and also managing to call two Justices by the wrong names.
When his turn came, Boies made an abortive attempt to command the session immediately, but was steered back to the question of jurisdiction. He then got locked in a heated exchange with Justice Kennedy, maintaining the Florida Supreme Court did not, as the Bush team argues, create new law when it ordered a recount, but rather that it simply interpreted existing law.
The Gore attorney's appearance prompted quite a few barbed queries from Justice Scalia, who was audibly displeased with several of Boies' responses. Justice O'Connor, as well, posed tough questions to the Gore lawyer; at one point she asked him why the Florida Supreme Court had not responded to the high court's remand of a decision to extend the certification deadline. Boies didn't seem to have an answer.
The bottom line, explained Boies, is that the undervotes must be counted. Even if there is a deadline looming, he added, there's ample time to count votes in the counties requested by the Gore campaign. "We didn't ask for the statewide recount order, your honors," he said.
Once again, the Justices seemed unsure as to what, exactly, a recount order would mean. What standards would be used? Trying to convert a skeptical courtroom to his point of view, Boies pointed out there is already a standard established by the Florida legislature, and that standard should be used. "But what does that standard mean?" persisted the questions.
Befitting their belief the recount should continue, Justices Breyer and Souter seemed particularly interested in establishing a standard both parties could accept, while O'Connor sounded annoyed that the dilemma existed in the first place. "Why isn't the standard what the voter are instructed?" she demanded. "The instructions couldn't be clearer, for goodness' sake."
By the end of the trial, there was little evidence of any vote-switching Souter, Breyer, Ginsburg and Stevens seemed fairly convinced of the importance of a recount and primarily concerned about establishing a workable counting standard. Scalia seemed prepared to dismiss the contest altogether, while Kennedy and O'Connor appeared genuinely troubled by the implications for voters as well as the candidates any decision might bring.