A potentially decisive Florida Supreme Court hearing Thursday set the stage for a nail-biting waiting game for Bush, Democrat Vice President Gore and a nation eager for finality a month after the presidential election vote on Nov. 7.
A ruling from the court was likely by Friday. At issue was whether the court should overturn a lower-court ruling that refused to allow recounts of 14,000 disputed ballots – enough for Gore to overturn Bush's 537-vote certified victory in Florida.
Thursday afternoon, testimony ended in two similar cases of alleged irregularities in absentee ballot applications. In either case, throwing out ballots would favor Gore and could tip the state to him. One circuit judge promised to rule by noon Friday. The other set no timetable.
Victory in the Sunshine State would give either candidate the Electoral College votes to become 43rd U.S. president.
Other options remain. The Republican-controlled state Legislature vowed to convene Friday to name its own slate of electors for Bush if necessary.
But most observers believe the end game is at hand in the closest and most drawn-out presidential contest in modern times, if for no other reason than that the clock is running.
The Democrat-appointed state Supreme Court justices Thursday asked whether they had the time to address Gore's contest of the presidential election even if the court wanted to do so.
States are to decide the fate of their respective electoral votes by Tuesday. The Electoral College is to vote Dec. 18.
As Gore's lawyers asked the court to overturn the no-recount ruling by Leon County Judge N. Sanders Sauls, Chief Justice Charles T. Wells pointed out the tight time frame.
"We don't have a remedy that can do that by Dec. 12," Wells said to Gore attorney David 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."
Initially, the justices seemed concerned that the ultimate authority for an appeal should be with the state Legislature.
"The Legislature has provided this court with the authority to examine these cases," 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."
Justices questioned the fairness of selective, as opposed to statewide, recounts.
''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 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 "evidence" in the case, but also relied on a too-strict interpretation of laws governing whether uncounted votes would put the outcome in doubt.
Bush lawyer Barry 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."
The court ruling could be trumped, or at least thrown into doubt, by the decision Wednesday of Republican Florida legislators to call a special session of lawmakers to choose the state's 25 members of the Electoral College if legal challenges to Bush's win are not resolved by Tuesday.
Florida State Senate President John McKay and House Speaker Tom Feeney said they had signed a proclamation calling a special session of the Legislature to name a slate of electors.
The session was to convene at noon Friday, and a special Senate ethics and elections committee, to be named by McKay, would begin deliberations after the weekend.
"The step we take today with reluctance is a safeguard to preserve Florida's participation in the election," McKay said at a news conference in the Senate building.
On another front, two court cases involving thousands of absentee ballots concluded Thursday. Lawyers argued before two Leon County circuit judges on whether to toss out thousands of absentee ballots from Martin and Seminole counties. The ballots are thought to be mainly Republican votes, and if the cases succeed, they could hand victory to Gore regardless of how the state Supreme Court rules on the recounts.
But the Democrats will have a hard time proving their case to the required standards.
According to court documents, before Election Day in November, local Republicans sent their supporters postcards that they could fill in and mail to their election supervisor requesting an absentee ballot. But to be valid, the requests needed to include voter identification numbers, issued to every voter under a recent state law to counter election fraud.
Through an apparent oversight, the GOP did not record this information on the postcards, and there was no space for voters to add it themselves. As a result, the request forms were invalid under Florida law.
Florida Democrats claimed to two courts Wednesday that GOP staffers "illegally" added voter identification numbers to thousands of these postcard request forms after they had been received by authorities in Seminole and Martin counties. The lawyers said that this was done with the connivance of GOP-affiliated election supervisors, and argued that meddling with the request forms invalidated the absentee ballots that these GOP supporters received in both counties.
Republican attorneys argued that "hyper-technicality" over the request forms should not trample on the right to vote.
"The right to vote is a paramount right," Seminole County Canvassing Board attorney Terry Young argued in his opening statement. "A minimal omission of the voter identification number, which has nothing to do with the ballot cast ... cannot possibly nullify the ballot itself."
The Democrats' efforts to exclude these absentee ballots, as well as their widely denounced campaign to toss out military ballots from overseas, fly in the face of Gore's repeated claims he wanted to "count every vote."
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