Initially, the Democrat-appointed justices seemed concerned that the ultimate authority for an appeal should be with the Florida Legislature. That argument favors President-elect Bush, who holds a certified margin of 537 votes in Florida and whose party dominates the Legislature.
"The Legislature has provided this court with the authority to examine these cases," Gore attorney David Boies countered. "The Legislature passes laws with the understanding that the courts of Florida will eventually examine and interpret the laws.
"Prior to this case, I doubt that anyone would have contemplated that this situation would have occurred in this manner."
The state Legislature, represented at the court hearing by two rows of lawmakers, on Wednesday announced that it would act to select electors itself should the legal proceedings not find resolution by the Dec. 12 deadline. A special session of the Legislature is scheduled to begin Friday.
Democrat Vice President Gore's team is asking the court to reverse a lower-court ruling Monday in which a circuit judge declined to order a recount of 14,000 disputed ballots, including about 9,000 in Miami-Dade County that registered no vote in the machine counts.
''While I find the concept of rejecting legally cast ballots unsettling, here your challenge is of a catalog of undervoted ballots," Justice R. Fred Lewis told Boies.
"If that category exists, it would seem to exist statewide."
The justices also grilled Boies on Circuit Judge N. Sanders Sauls' finding that the Gore campaign had failed to prove that a recount was likely to reverse the election outcome.
"In his decision, Judge Sauls [finds that you] had not established a reasonable probability that the outcome of the election would have been different," Justice Leander Shaw Jr. said.
"Are you arguing that this is an error of law or fact?"
"A mixture," replied Boies, referring to the Gore team's repeated contention that Sauls did not look at any of the ballots the Gore campaign considers the key "evidence" and also relied on a too-strict interpretation of laws governing whether uncounted votes would put the outcome in doubt.
With each side receiving 30 minutes to make its argument and answer questions from Florida's seven justices, there was little room for opening statements as both sides were closely grilled on the court's jurisdiction, whether a statewide recount is legally required and whether there is enough time before the Dec. 12 deadline for selecting electors for such a recount.
Chief Justice Charles T. Wells started the questioning of Boies by asking whether Florida law allows judicial review of election results by the high court.
Bush lawyer Barry Richard said the court held the proper authority, but described the appeal by Gore as "nothing more than a garden-variety appeal of a hearing by the loser in a closely contested election."
Richard said the question was not whether the court had jurisdiction to hear the case, but rather whether the plaintiff had ever actually made a case worth hearing.
"This court has given the plaintiff a chance to prove its case and the plaintiff absolutely failed to prove itself," Richard said.
The Bush attorney immediately attacked the contention that Sauls had erred in finding that the outcome of the election would not be changed, within probable certainty, by a hand recount of any ballots.
"There is no evidence or even any suggestion" of that, Richard said.
Refusing to call the estimated 9,000 ballots under dispute in Miami-Dade "uncounted," Richard instead argued that the voting machines had decided that those ballots were not votes at all and cannot be examined.
"I emphatically disagree that they have met the burden of proof," Richard said.
"They put two witnesses on the stand who testified about the Vote-o-matic machines. …They supplied nothing but speculation. Voter confusion is no reason to challenge this election."
Joseph Klock, an attorney for Florida Secretary of State Katherine Harris, who certified the vote total, briefly addressed the court at the end of the defendant's time period. He questioned whether the court was "willing to make a new pile of laws," which he said would be required for the justices to rule on the appeal.
The justices also asked how any disputed ballots could be reviewed by Dec. 12, when Florida must name its electors.
"We don't have a remedy that can do that by Dec. 12," Wells said to Boies.
But Boies said that the court had the power to demand a hand recount of only a portion of the counties' ballots, perhaps simply the "undervotes" that were not recorded by machine counts.
"Your honor, I think you do have a remedy to do that before Dec. 12," Boies said. "We believe that these ballots can be counted in the time available, but obviously time is getting short. … I think you can also interpret the law to only recount the requested ballots."
After the court hearing, Boies said the decision by the court might mark the end of legal battles to win the White House – but not absolutely.
"Our expectation is that this is a matter of Florida law, and the Florida Supreme Court is the final arbiter of that," Boies said. But Boies said there were scenarios where further litigation could be required.
"Is the decision we are going to get from the Florida Supreme Court a very important event? I think it is," Boies said. "I would not want to say it is the end of the line."
Copyright 2000 by United Press International. All rights reserved.
© 2025 Newsmax. All rights reserved.