The overriding concern of the court was clearly the equal protection issue, based upon the wildly differing standards - in essence, therefore, no standard at all - with which ballots were reviewed county-by-county and even within counties, yielding different treatment for different voters in the state.
From the outset, several questions were posed by both Justices Kennedy and O’Connor – thought to be the important "swing" votes – to Bush lawyer Ted Olson, after he had presented several minutes of his argument.
Whether the Florida Legislature or judiciary has ultimate power to govern the conduct of elections to select presidential electors was the issue most in contention.
Article II, Section 1 of the U.S. Constitution clearly designates the state legislature as the branch of government with plenary power in this regard.
Title III of the U.S. Code is the federal statute enacted in 1877 following the controversial election of 1876, when the Congress selected Rutherford B. Hayes after a tumultuous and inconclusive contest, which, ironically, also involved confusion surrounding the selection of Florida’s electors.
The dispute here centers on whether the Florida high court exceeded its authority to
An important issue presented as a result of these decisions involves whether impermissibly vague standards for reviewing the ballots were arbitrary – to the extent that ballots were assessed differently from county to county, and even within counties – raising equal protection constitutional concerns.
Olson was also peppered with inquiries on variations of the above issue as well as arcane legal questions related to jurisdiction by Justices Scalia, Souter, Stevens and Ginsburg.
Joseph Klock, representing Florida Secretary of State Katherine Harris, next addressed the court and dealt with specific questions on voting methods and standards for reviewing ballots and offered a novel explanation: that voters should be held accountable for having to follow explicit instructions concerning procedures for voting a punch-card ballot.
At one point Klock incorrectly addressed Justice Stevens as Justice Brennan, who has not served on the court for years, as the audience erupted in laughter. Several moments later he referred to Justice Souter as Justice Breyer, again drawing polite laughter.
Soon after, when Justice Scalia posed a question, he prefaced it with a tongue-in-cheek "I’m Scalia," which evoked even more laughter from those in attendance.
When David Boies rose to begin his presentation - wearing black tennis shoes, no less! - Justice Kennedy interrupted with a question, before Boies even completed a sentence, concerning the jurisdiction of the Supreme Court to hear the case, which is a threshold requirement that must be satisfied. This inquiry seemed to confuse Boies somewhat, momentarily throwing him off stride.
A key exchange occured when Kennedy directly asked Boies if the legislature had made the same changes as the court, would that be unacceptable?
Boies, surprisingly, answered yes!
That answer could well have sealed the fate of Al Gore, as many observers viewed it as an admission that the Florida court had overstepped its bounds.
Scalia then questioned Boies on the Florida court’s proper role, but appeared more interested in reassuring Justice Kennedy on the point by virtue of actually mentioning Kennedy’s name in the question.
O’Connor next inquired about the same topic, expressing her concern that the Florida Supreme Court had not responded to the nation’s high court when it vacated the state’s previous decision.
She was also concerned that the Florida court added votes to the Gore total on Friday, even after their first ruling was vacated, expressing near bewilderment that such an action was taken. Boies seemed not in command as he attempted to offer an explanation.
Scalia then posed a direct challenge to Boies along the same lines, asking how the Florida court could have possibly ordered that votes not received by the court’s original deadline were on Friday ordered included.
Breyer attempted to lend some assistance, only to be interrupted by Kennedy asking about the varying standards, "not only from county to county, but also from table to table within the same county."
Boies next invoked Texas law in an attempt to justify the action when Justice Souter asked why there shouldn’t be a general rule and if there was such a rule in place, would any variation be a violation of equal protection?
Souter focused sharply again on this question, which Boies fumbled and was unable to answer, only to have Souter raise it yet again!
Scalia interjected, "You would just say count every vote, right?" – to which the audience responded with light laughter. The justice pressed further, again without a satisfactory response.
Chief Justice Rehnquist also asked about standards for reviewing ballots, whether the "intent of the voter" or the "clear intent of the voter" was applicable.
Justice O’Connor followed with an inquiry about dimpled ballots and hanging chads, asking, "Why, for goodness sakes, can’t there be a standard?"
Scalia then wanted to know why the totals of Broward and Palm Beach counties were treated differently by the Florida Supreme Court, to which the reply was rambling and unclear.
Chief Justice Rehnquist then questioned the total of votes to be recounted, as enumerated by one of the Florida justices – specifically why the total given was 177,000 ballots to be recounted.
In a shocking moment, Boies admitted that the figure was incorrect because the number included "overvotes" as well as "undervotes."
This led to an exchange with several of the justices on this issue, Boies was unable to clearly answer why Gore only wanted undervotes counted, and the fact that in a "contest" of an election why overvotes shouldn’t also be counted.
Justice Kennedy said he was "very troubled" by the imposition of a new scheme for reviewing the results at such a late date.
The chief justice then interrupted, expressing his concern with the problems created by a truncated time frame to contest the results.
Scalia then interrupted Boies, when answering, to also question the shortened timetable.
Rehnquist proceeded to interrupt, asking Boies if he hadn’t just answered him a certain way. … Scalia interrupted, pushing further, whereupon O’Connor jumped in with a further question about a Florida case (Boardman, which dealt with ascertaining voter intent).
Souter posed an inquiry regarding whether, if a single Florida circuit court judge set a standard and it was not applied consistently, would that be an equal protection violation?
Next, Bush lawyer Olson stood to complete his argument with time he had reserved earlier.
Justice Ginsburg inquired about standards to be applied, to which Olson responded in great detail, dovetailing an effective argument against the shifting standards into his answer. She followed by asking if the Florida Supreme Court had acted so far outside its proper role as to be changing law rather than interpreting it.
Ginsburg reprised her statement from the last hearing regarding "the great deference to final determinations by states’ high courts."
Breyer jumped in, as he did during the last hearing, with support for that proposition, at which time the hearing abruptly concluded as the allotted time had expired.
ANALYSIS: Based upon the session, as summarized above in notes taken listening to the roceedings, the bottom line seems likely to favor the Bush equal protection argument, with both Justices O'Connor and Kennedy apparently firming up their serious concerns that the state court overstepped its authority. In fact, even Justice Souter, who opposed the order imposing a stay of the hand counts, also appeared troubled by the practical application of the Florida Supreme Court decision.
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Dan Frisa represented New York in the United States Congress and served four terms in the New York State Assembly.
• Dec. 11, 3:00 p.m. – WOND radio in Atlantic City, N.J.
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