With the fate of the Florida recount and this historic presidential election in its hands Monday, the U.S. Supreme Court zeroed in on whether the lack of one statewide standard for counting legal ballots violated the constitutional guarantee of equal treatment for all the state's voters.
Throughout a lively 90-minute argument, the justices demonstrated they knew the details of Florida's chads, its undercounts, and multiple court decisions. The court repeatedly pressed lawyers for George W. Bush and Al Gore to justify why it should or should not end for good the manual recount that Florida's Supreme Court ordered last week.With one eye on the clock and another on its own credibility, the high court seemed to be groping for a ruling that would quickly produce a winner in Florida and a president-elect without damaging its reputation as the most nonpartisan branch of government. Some court watchers believed the decision could come as early as today, the deadline for states to certify electors.
One possible remedy, suggested by Justice David Souter, would have the high court send the case of Bush v. Gore back to the circuit court in Florida, with instructions to craft a uniform standard for counting legal ballots.
Bush lawyers want the U.S. Supreme Court to end the presidential contest right here. A majority of the justices could do that by declaring the Florida Supreme Court had no authority when it acted Friday to restart the recounts that renewed Gore's hope of overcoming Bush's slim lead, and certified victory, in Florida.
Monday the justices challenged Bush's central argument that the Florida Supreme Court had made new law, overstepped its authority, or violated the U.S. Constitution or a federal election statute when it ordered the recount.
``Where's the federal question here?' Justice Anthony Kennedy asked, interrupting Bush lawyer Theodore Olson, who had accused the Tallahassee court of making a ``wholesale revision of Florida's election law' when it permitted ``extensive, standardless, and unequal manual recounts' in some Florida counties.
``I have the same problem Justice Kennedy does,' said Justice Sandra Day O'Connor, suggesting state courts have the right to review election laws a state legislature enacts, even when legislators get their authority from the federal statutes. O'Connor, like Kennedy, was being watched closely as a possible ``swing' vote for Gore or Bush on the closely divided court.
The question of whether that recount was injuring Bush - the basis for the court's 5-4 decision Saturday to temporarily halt it - was not raised directly Monday. Instead, several justices, including Souter and Stephen Breyer, who both opposed the stay, suggested they were more concerned that the court's actions not injure Florida voters.
The issue that could unite the court was whether Florida's standard for determining a legal vote - ``the intent of the voter' - was so vague and could be so variously interpreted, county to county, that the Fourteenth Amendment rights for the equal protection of all voters were being violated.
Gore lawyer David Boies said there was no equal-protection violation because intent is always subject to interpretation, and he said at least 11 states, including Massachusetts, follow that standard. Boies acknowledged that Florida county canvassing boards had set different standards for counting dimpled and hanging chads on punch-card ballots.
``I think there is a uniform standard,' Boies said. ``The standard is whether that or not the intent of the voter is reflected by the ballot.'
``That's very general,' Justice Kennedy said. ``From the standpoint of the equal protection clause, could each county give its own interpretation of what intent means, and can that vary from county to county?'
``I think it can vary from individual to individual,' Boies said.
``So that even in one county it could vary from table to table on counting these ballots?' Kennedy asked.
``On the margins,' Boies said, that was correct.
Souter said that bothered him. ``Why shouldn't there be one objective rule for all counties, and if there isn't, why isn't it an equal-protection violation?'
Souter, who served on the New Hampshire Supreme Court, said it might be feasible for the justices to send this case back to the Leon County Circuit Court and have the judge ask the secretary of state to ``please tell us what the standard ought to be.'
Justice Breyer pressed Olson, who insisted there was an equal-protection violation, for a definition of a uniformly fair standard. Bush's lawyer said it would be ``penetration of the ballot card.' Joseph Klock, speaking on behalf of Florida Secretary of State Katherine Harris, said only properly punched-through ballots should be considered legal.
``The only problem we have here is created by people who do not follow instructions,' Klock said.
``Why isn't the standard the one the voters were instructed to follow, for goodness sakes? Why don't we go to that standard?' O'Connor later asked Boies.
Chief Justice William Rehnquist and Justice Antonin Scalia questioned Boies closely on how far-reaching the manual count of undercounted ballots would be, since the Florida court extended it throughout the state. Justice Clarence Thomas was present but asked no questions.
Justices Ruth Bader Ginsburg and John Paul Stevens, the court's most reliable liberals, have also been its most persistent voices for states's rights in these election cases, arguing that Florida courts are entitled to review and interpret Florida laws.
In Monday's arguments, Justice Kennedy seemed to agree, suggesting that to ``unmoor' state legislatures from the state constitution and courts would have ``grave implications for our republican theory of government.'
It was a day for history, and historic arguments, as the high court heard its first-ever case that could decide a presidential election. There wasn't an empty seat in the stately Supreme Court chamber; among the public officials present were Sens. Orrin Hatch, Patrick Leahy and John F. Kerry; Democrats Jesse Jackson, William Daley and Warren Christopher; Republican Party Chairman Jim Nicholson and former Sen. Bob Dole.
``This may be one of the momentous choices in a hundred years or so, and I would say the Rehnquist court could be measured to some degree, depending on the outcome of this,' Kerry later said.
Three of Gore's four children attended the arguments, as did Heather Huff and Stephen Dale, two young Washington lawyers who had camped out at the court since 9 p.m. Saturday to get a seat for what Huff called ``a once in a lifetime argument.'
A large number of dueling Gore and Bush backers filled the sidewalk in front of the court, chanting protests and waving signs that said ``Hail to the Thief,' and ``Dubya won - get over it.'
There was no partisan harshness inside the court, and there were even moments of levity, as when Joseph Klock mistakenly addressed Justice Stevens as ``Justice (William) Brennan,' the court's liberal icon who died in 1997.
``I'm sorry,' Klock said. ``That's why they tell you not to do that.'
Moments later, Klock called Souter ``Justice Breyer.'
``I'm Justice Souter,' the bemused justice said. ``You've got to cut that out.'
``I will give up now,' said Klock, who later blamed fatigue for the slips.
``Mr. Klock, I'm Scalia,' Justice Antonin Scalia quipped, before Klock was able to answer his question.
``Yes, sir, I remember that,' Klock said. ``It will be hard to forget.'