Day of Supreme Drama Nation's Highest Court Questions Lawyers for Bush, Gore on Why It Should Act on Florida

Article excerpt

WASHINGTON -- As the fight over the presidential election spilled into the U.S. Supreme Court yesterday, justices peppered attorneys with questions touching on most legal aspects of the Florida dispute -- including why they should be involved.

"We're looking for a federal issue here," said Justice Anthony Kennedy, less than 10 minutes after Republican George W. Bush's attorney, Theodore Olson, began speaking. Olson found himself quickly engulfed in a barrage of questions.

"Why should the federal judiciary be interfering in what seems to be a very carefully thought-out scheme" for settling elections in Florida, Justice David Souter asked.

Laurence Tribe, a lawyer representing Democratic candidate Al Gore, underwent tough questioning, too.

In a 90-minute hearing, the nine-member court considered whether the Florida Supreme Court overstepped its authority in extending the deadline for certifying a winner to include results of hand recounts requested by Gore. The extra time narrowed Bush's lead from 930 votes to 537.

On Sunday, Bush was certified the winner in Florida, a decision Gore is contesting in state court.

Most of the Supreme Court justices expressed doubts yesterday about the Bush camp's contention that the case involved a matter of federal law, but some appeared to take seriously the possibility that Florida's high court may have gone too far.

"Certainly the date changed," Justice Sandra Day O'Connor said. "It just does look like a very dramatic change made by the Florida court."

Wading into the ocean of litigation, the justices also asked about the requirements of a manual recount, the limits of official discretion and the degree to which the case before them even mattered since Bush's victory had already been certified.

The justices -- all of whom waded into the argument with the exception of Justice Clarence Thomas -- appeared skeptical of many of the claims asserted by both sides.

Attorneys for Bush argued that the state Supreme Court had changed the rules of the election after Nov. 7. Such a shift violated federal law, they said.

"What the Florida Supreme Court did was to rewrite the statutes," Olson told the justices.

Tribe, the Gore attorney, asserted that the Florida court had done "nothing extraordinary" in rendering its decision, taking the judicial steps required to reconcile conflicting statutes at issue in the case.

Furthermore, Tribe argued, federal law leaves it up to the institutions of state government to resolve the conflict.

The legal battle before the nation's highest court resulted from a provision of Florida law requiring the secretary of state to certify county vote results seven days after the election. Another provision of Florida election law allows candidates to ask counties for manual recounts.

Florida Secretary of State Katherine Harris maintained that the seven-day deadline was firm and that she was not obligated to accept any amended vote tallies forwarded to her later -- after hand counts were complete.

On Nov. 17, the Florida Supreme Court blocked Harris from certifying the election results the next day, after overseas absentee ballots were counted.

In a subsequent opinion, the state court ruled Harris had to accept manual recounts by 5 p.m. Nov. 26, a deadline selected to balance further challenges to the election and a federal deadline of Dec. 12 for states to select their presidential electors.

In the wake of that decision, Bush and his attorneys denounced the Florida court's action as a flagrant instance of improper judicial activism. They maintain that in tossing out the seven-day deadline, the opinion of the Florida judges improperly supplanted the will of the Legislature.

At yesterday's hearing, Justice Ruth Bader Ginsburg appeared to view the Florida court's action as simply a reconciliation of conflicting statutes. …

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