Supreme Court Arguments Conclude

.c The Associated Press

WASHINGTON (AP) - The Supreme Court bombarded lawyers for George W. Bush and Al Gore with questions for 90 historic minutes on Monday in the case of the nation's contested presidential election. The justices set no timetable for a ruling on whether to resume a recount of Florida's questionable ballots.

``Where's the federal question here?'' Justice Anthony M. Kennedy asked Bush's attorney, Theodore Olson, less than two minutes into the legal clash over the partial manual recount that the state Supreme Court ordered last Friday and that the U.S. Supreme Court halted less than 24 hours later.

But Kennedy later said that if the Florida court acted in reference to a federal law, perhaps ``it presents now a federal question for us to determine.''

Justice Sandra Day O'Connor said she was troubled that the Florida Supreme Court ruling appeared to ``find that all those changes in deadlines were fine.''

Several justices seemed concerned about recounts being conducted under varying standards. Olson told them, ``There is no question ... that there are different standards from county to county'' for recounts.

Justice David Souter asked, ``Why shouldn't there be one subjective rule for all counties?'' And Kennedy told Gore's lawyer, David Boies, ``This is susceptible of a uniform standard, and yet you say it can vary from table to table and county to county.''

O'Connor said the Florida court's ruling on Friday did not appear to fully acknowledge that its previous ruling allowing recounts had been set aside by the U.S. Supreme Court.

She noted that the Constitution gives state legislatures the authority to control the choice of presidential electors. ``Does that not mean that a court has to ... give special deference to a legislature's choices insofar as a presidential election is concerned?''

``Isn't there a big red flag up there, watch out?'' she said.

Bush and Gore watched from a distance as their lawyers posted rival legal claims before a court that seemed eager to challenge the lawyers and probe their arguments for soft spots.

``I talked to some of our legal team. They are cautiously optimistic. If they are, I am,'' Bush told reporters after Olson had stepped before the nine justices to argue the recount should be shut down - and Bush's certified victory allowed to stand.

Gore was at the vice president's residence, pinning his hopes on Boies and his ability to persuade a majority of the court to resume the recount. Three of Gore's children - Karenna, Kristin and Albert III - were among the spectators given seats to the historic arguments.

The court allotted 90 minutes for the oral arguments, which unfolded only two days after a 5-4 majority voted to stop the recount at least temporarily.

Justice Antonin Scalia, in a concurring opinion issued on Saturday, had said it ``suffices to say ... that a majority of the court'' believes that Bush had a substantial probability of success on the final ruling.

That meant that Gore faced an uphill struggle as the black-robed justices settled in their seats for the formal arguments. Boies said on Sunday that defeat at the high court could mean the end of the road for the vice president's 2000 quest for the White House.

There were a few moments of humor - and embarrassment for one of the lawyers, Joseph Klock, representing Florida Secretary of State Katherine Harris.

Klock accidentally referred to Justice John Paul Stevens as ``Justice Brennan,'' a reference to the late Justice William Brennan.

A moment later Klock stumbled again, mistaking Souter for Breyer. Souter responded, ``I'm Justice Souter, you'd better give that up.'' And a few moments later, Scalia drew a laugh when he began a question by saying, ``Mr. Klock, I'm Scalia.''

The atmosphere inside the courtroom stood in contrast to the noisy scene outside the building - where demonstrators protested beneath the chiseled marble inscription ``Equal Justice Under Law.''

While Kennedy and O'Connor, both of whom sided with Scalia in suspending the recount, asked questions about whether there was a federal issue for the justices to decide, other members of the court probed elsewhere.

Justice Ruth Bader Ginsburg, who opposed the suspension of the recount on Saturday, questioned why the nation's highest court should overrule the Florida Supreme Court's interpretation of state law and ``say what the Florida law is.''

In their questioning, the justices raised many of the issues that have swirled around the recount that holds the key to the White House. Bush has been certified the winner in Florida by 537 votes, but Gore looked to the recount to let him overtake his rival. The winner of Florida's 25 electoral votes stands to gain the presidency.

Thus, while the justices did not say when they plan to rule, their decision to hold oral arguments on extremely short notice signaled an understanding of the importance of speed.

Failure to settle the issue by Tuesday could expose the state's 25 electors to greater risk of challenge when the Electoral College votes are counted in Congress on Jan. 6. And finally, the state Legislature is poised to name its own state - loyal to Bush.

Hovering in the background are inevitable questions about the ability of the winner - either Bush or Gore - to claim legitimacy after an election so close and contested.

Montana Gov. Marc Racicot, a Bush backer, dismissed the idea that winning a narrowly divided court decision on the votes of five conservative justices would cost Bush legitimacy as president.

``That's something that's bestowed by the American people,'' Racicot told CNN.

Bush's lawyer, Olson, said the Florida court made a ``new wholesale, post-election revision'' of state election law when it ordered the recount, and ``wrenched it completely out of the election code.''

But Boies, representing the vice president, said the Florida court was not making new law but interpreting laws passed by the Legislature. He also said any differences in the way the recount is conducted from one county to the next would be less than ``the mere difference in the types of machines used'' in different counties.

The Bush campaign is arguing that a recount won't be fair because Florida counties use varying standards to determine a voter's intent.

The ``crazy-quilt ruling'' is a ``recipe for electoral chaos,'' Bush's lawyers said in court briefs filed Sunday. ``It has created a regime virtually guaranteed to incite controversy, suspicion and lack of confidence, not only in the process but in the result that such a process would produce.''

Attorneys for Gore argued in court papers that the Florida court simply placed ``the voters whose votes were not tabulated by the machine on the same footing as those whose votes were so tabulated. In the end, all voters are treated equally: Ballots that reflect their intent are counted.''

The U.S. Supreme Court first heard arguments in the case on Dec. 1. Justices unanimously set aside the Florida court ruling and sent the case back for clarification of why it allowed ballots to be recounted after the Nov. 14 deadline set by the Florida secretary of state.

In response, the Florida Supreme Court issued a 4-3 decision Friday ordering a hand recount of all undervotes statewide. Hours after the tally began Saturday, the U.S. Supreme Court voted 5-4 to grant Bush's request to halt the recount until the court determines its legality. When the counting stopped Saturday, an unofficial Associated Press survey put Bush's lead over Gore at 177 votes.

Tuesday is the date for choosing presidential electors under a provision of federal law that shields them from challenge in Congress. Members of the Electoral College will cast their votes for president on Dec. 18.

AP-NY-12-11-00 1434EST

Committees Vote To Name Electors

.c The Associated Press

TALLAHASSEE, Fla. (AP) - House and Senate committees voted Monday for resolutions that name a slate of 25 presidential electors loyal to Republican George W. Bush.

The resolutions will next be considered by the full House and Senate as the GOP-controlled Legislature wades into the presidential dispute.

The House meets Tuesday and the Senate on Wednesday, although neither chamber is required to vote on those days.

One Democrat sided with the four Republicans as the House's Select Committee on Electoral Certification, Accuracy and Fairness voted 5-2 for the resolution. Rep. Dwight Stansel, a Democrat from a conservative district who was first elected in 1998, voted with the majority.

The Senate's Ethics and Elections panel approved the slate 4-3 on a straight party-line vote.

AP-NY-12-11-00 1622EST

High court divide shows in questions


WASHINGTON, Dec. 11 — With the presidency hanging in the balance, the U.S. Supreme Court on Monday publicly displayed the divisions that surfaced in private over the weekend in a 5-4 decision halting manual ballot recounts in Florida’s disputed presidential election. The justices at times seemed really to be arguing with each other as they bombarded lawyers for George W. Bush and Al Gore with questions that focused on the key question of whether the state’s high court exceeded its authority by ordering the recounts.

IT WAS NOT known when the court would rule, but with constitutional deadlines looming, the justices were expected to decide the case soon.
As they did last week when the election dispute first reached their ornate courtroom, the justices halted prepared arguments almost as soon as they began to ask searching questions of the lawyers.
“Where’s the federal question here?” Justice Anthony M. Kennedy asked Bush’s attorney, Theodore Olson, less than two minutes into the legal clash over the partial manual recount that the state Supreme Court ordered last Friday — and that the U.S. Supreme Court halted less than 24 hours later.
Olson responded that the Florida Supreme Court had issued “a new wholesale post-election revision of Florida’s election law” in its ruling, thereby trumping the state Legislature’s authority.

Kennedy and Justice Sandra Day O’Connor, both considered potential swing votes on the divided court, expressed concern during Gore attorney David Boies’ arguments that the Florida Supreme Court had exceeded its authority.
Referring to the Florida court’s decision to waive the Dec. 14 date for certification of the presidential vote, Kennedy indicated that he views that action to be an unconstitutional rewriting of the election rules.
“It would seem the Legislature could not have done that by a statute without it being a new law and neither can the Supreme Court without it being … a new scheme, a new system,” he said during an exchange with Boies.
Boies also sparred with O’Connor on the question of whether the state court had ignored the direction the federal court gave it last week when it sent back a previous challenge to the recounts for further consideration.
“I did not find a response by the Florida Supreme Court to this court’s remand in the case a week ago,” O’Connor said. “It just seemed to kind of bypass us. ... I found that troublesome.”
Boies also was asked repeatedly about why the differing standards used in different counties to attempt to discern voter intent during the recounts wouldn’t violate constitutional equal-protection standards.
At one point, Justice David Souter appeared to suggest that the federal court should consider establishing a uniform standard, asking, “Why shouldn’t there be one subjective rule for all counties?”
Justice Ruth Bader Ginsburg, who opposed the suspension of the recount on Saturday, questioned why the nation’s highest court should overrule the Florida Supreme Court’s interpretation of state law and “say what the Florida law is.”

In their questioning, the justices raised many of the issues that have swirled around the recount that holds the key to the White House. None of the questions gave any indication that any of the justices were considering switching the votes they cast on Saturday when they halted the Florida recount on a 5-4 vote.
Bush has been certified the winner in Florida by 537 votes, but Gore looked to the recount to let him overtake his rival. The winner of Florida’s 25 electoral votes stands to gain the presidency.

The Presidential Election and Other Cool Facts
No Ordinary Time by Doris Kearns Goodwin
Other books by Doris Kearns Goodwin

In remarks outside court after the arguments, which began at 11 a.m. and ended at 12:33 p.m. ET, Gore’s attorney, David Boies, said the justices asked some questions “I wasn’t entirely prepared for,” though he declined to say what they were. Boies characterized his portion of the arguments as a “45-minute interrogation” by the justices.
The historic arguments focused on about 43,000 so-called undervotes — ballots in which voting machines read no selection for president. The Florida Supreme Court ordered the ballots to be recounted by hand, but the U.S. Supreme Court on Saturday halted the recount until it could rule on the dispute.
If the U.S. Supreme Court overrules the Florida high court, it will effectively mark the end of the Florida recount fight and give the White House to Bush. If the justices allow the Florida ruling to stand, Gore may be able to get a final accounting of the disputed Florida votes, which he hopes will put the state’s 25 Electoral College votes in his column and make him the 43rd president of the United States.

An adverse ruling by the nation’s highest court wouldn’t quite count Gore out: There still are other unresolved election challenges pending before various courts.
But an aide to Gore, who spoke with NBC News on Monday, made it clear that the vice president’s camp views Monday’s legal showdown as the last chapter. “There would be no alternative” but to concede if the court comes down firmly against the vice president, the aide said.


Justice Date of Birth Appointed by Sworn in
William H. Rehnquist 10/1/24 Nixon 1/7/72
John Paul Stevens 4/20/20 Ford 12/17/75
Sandra Day O'Connor 3/26/30 Reagan 9/25/81
Antonin Scalia 3/11/36 Reagan 8/17/82
Anthony Kennedy 7/23/36 Reagan 2/18/88
David Souter 9/17/39 Bush 10/9/90
Clarence Thomas 6/23/48 Bush 10/23/91
Ruth Bader Ginsburg 3/15/33 Clinton 8/19/93
Stephen Breyer 8/15/38 Clinton 8/3/94

Source: Congressional Quarterly

Political supporters indicated they would expect a concession speech if the court rules against Gore. “If the court does overturn Florida, this is moment for all to come together, and that would require the vice president to recognize we’ve reached the end,” Sen. John Kerry, D-Mass., said after listening to Monday’s arguments.
Gore waited out the hearing at home in Washington with his wife, Tipper. Three of their four children — Karenna, Kristin and Albert III — accompanied campaign chairman William Daley and former secretary of state Warren Christopher, the head of Gore’s legal team, to the Supreme Court chamber to hear the arguments.
Bush, after checking with his legal team for an assessment of the arguments, said he was “cautiously optimistic.” Earlier, as he arrived at work at the Texas state Capitol in Austin, Bush said, “I am keeping my emotions in check” until the high court rules.

While the arguments unfolded inside, hundreds of demonstrators noisily advocated both sides’ positions outside the building, beneath the chiseled marble inscription “Equal Justice Under Law.”

Andrew Alexander, 19, of Harrisonburg, Va., dressed as Santa, held up a sign that read, “Ho, ho, ho, Gore’s got to go.” His brother Stephen, 11, came along with his poster: “All I want for Christmas is Bush for president.”
Nearby, a Gore supporter shouting “Who’s afraid of the Florida vote?” stood on the sidewalk with a dark brown mule. About 200 Gore supporters marched with printed signs reading, “This is America. Count every vote.”
Boies represented Gore in the case, taking over for Harvard law professor Laurence Tribe, who argued before the court for Gore last week. A Gore lawyer said Boies was chosen because he had represented Gore on the recounts in Florida and was more familiar with the issue than Tribe.
Florida Secretary of State Katherine Harris joined Bush’s appeal, and the justices Sunday gave her lawyer, Joseph Klock, 10 of the 45 minutes allotted to the Bush team.

The election dispute has divided judges and the nation — a new NBC News opinion poll found 53 percent of those surveyed backed the U.S. Supreme Court’s decision to suspend the Florida recount, 43 percent disapproved.
In addition, 46 percent felt the high court was not the proper place to decide the election, compared with 44 percent who felt it was.
And 53 percent believed the court’s 5-4 decision to suspend the recounts was based mostly on politics, compared to 34 percent who felt it was based mostly on the law.
The survey of 538 people was taken Sunday by the Hart-Teeter polling firm. It has a margin of error of plus or minus 4.3 percentage points.

More results from NBC survey

It’s not clear when the Supreme Court will make a decision about the Florida recount, but time is rapidly running out if it hopes to avoid further constitutional complications.
The first in a series of deadlines comes Tuesday, the date stipulated by the U.S. Constitution for Florida and every other state to have selected their slates for the Electoral College.
If that deadline isn’t met, the Constitution gives state legislatures the power to choose the electors, and Florida’s Republican-controlled Legislature, which is meeting in a special session, has said it will step into the dispute if the courts haven’t settled it by then.
But many constitutional scholars argue that because the actual voting by electors doesn’t occur until Dec. 18, Florida’s slate could be chosen after Tuesday if manual recounts were resumed but not completed by then. The validity of a slate of electors selected in this manner could be challenged in Congress.


Watch the latest NBC and MSNBC reports on the Florida presidential dispute.
Boies said on NBC’s “Meet the Press” Sunday that if the justices rule in Bush’s favor, it would be “the end of it. ... Their voice is final. They have the power to decide this.”
But he declined to predict whether the vice president might delay a concession until another case seeking to throw out Florida absentee ballots works its way through appeal. “I’m not going to say what’s going to happen in terms of pending Florida Supreme Court appeals,” Boies said.
Even if Gore wins the case, the high court would need to restart the recount process and have it completed within a day — or else any Gore claim to victory would likely remain open to challenge.
In written briefs filed Sunday, both sides relied heavily on core arguments they have repeatedly used in both state and federal courts:
Bush’s team maintained that the Florida court violated both the U.S. Constitution and federal law by acting in conflict with Florida state law and the state Legislature, thus violating federal requirements that only a state Legislature may set the process of choosing presidential electors. The Republican’s lawyers also said the standard for the recounting of ballots was “arbitrary, standardless and subjective,” and violated federal law by trying to set rules for resolving election disputes after Election Day.
Gore’s team argued that the Florida high court’s decision “does nothing more than place the voters whose votes were not tabulated by the machine on the same footing as those whose votes were so tabulated.” The Democrat’s lawyers also contended the Florida court merely acted to clarify state law, not change it, and thus fulfilled its proper role of “judicial review” in the election dispute.

Full text of the Bush team's briefs

Full text of the Gore team's briefs’s Alan Boyle, Jon Bonné, Mike Brunker and Miguel Llanos, NBC’s Norah O’Donnell and Pete Williams and The Associated Press contributed to this report.


The last resort of a scoundrel


© 2000

The U.S. Supreme Court's issuance of a stay on further Florida recounts yesterday leaves Vice President Al Gore with only one card to play - at least as far as I can see.
Al Gore has lost again. Time has run out on his legal wrangling. Unless he does what has become, for him, the unthinkable - bow out gracefully, accept the will of the people, concede defeat in the presidential election and congratulate his opponent on his victory - there is only one more tactical barricade separating George W. Bush from the White House.

Gore is going to turn loose on all of the members of the Electoral College Democratic Party activist-pitbull Bob Beckel.

If you go back a few years, you might remember Beckel as manager of Walter Mondale's losing presidential campaign. Evidently, Beckel doesn't want to lose any more presidential races, because he told the Fox News Channel's Neil Cavuto that he is actively engaged in a campaign to convince Electoral College representatives pledged to vote for Bush to change their vote to Gore.

Beckel said that his operatives had already talked to "over a hundred" friends in the various Bush-majority states. That was several weeks ago. Beckel stated his simple goal was to persuade just three electors -- enough to swing a 271-vote majority for Gore -- to switch their votes.

What is Beckel's motivation? Ironically, he accuses Bush of attempting to "steal" the election, and pledged to continue his campaign to sway electors to vote for Gore right up until Dec. 18.

Don't you love that? Bush is trying to "steal" the election by accepting the will of the voters. Beckel is trying to prevent him from stealing the election by persuading electors sworn to Bush to change their votes.

I don't doubt for a moment that such switches are possible - especially if Beckel has at his disposal the carrots of the Gore campaign and the sticks of the Clinton administration.

What do I mean?

Well, we lived through an impeachment trial last year in which the skeleton-filled closets of certain members of the House of Representatives were revealed to the nation. The U.S. Senate got the message and voted not to convict Bill Clinton.

The Clinton administration has showed over and over again it will use dirt collected on people to coerce them to submit to their will. Is there any doubt in your mind that Beckel is looking through dossiers right now and making threatening phone calls to electors?

Those are the sticks, but what about the carrots? Well, do you think there might be two electors pledged to Bush that might consider switching their votes for, say, $100,000 dollars? Or how about a high-paying political appointment in Washington?

Or, do you think the Clinton-Gore team is above bribery?

If Gore wins, after all, who is going to prosecute the crime? Gore will stack the Justice Department with political warriors like Janet Reno. Under Gore, like Clinton, the justice in America will be for "just us Democrats."

Folks, I have news for you. This is where the final battle will be waged. I have a feeling the Bush camp will be blindsided by it. They won't know what hit them until it's all over. There won't be any appeal of this bad decision. The clock will have run out.

Al Gore has already demonstrated he will capture the presidency at any cost. The ends justify the means to him. He will win by any means necessary.

Unless I'm missing something, this is Gore's last stand. It's the last resort of a scoundrel - and Al Gore, believe me, is every bit the scoundrel.


Joseph Farah is editor and chief executive officer of and writes a daily column.

Tuesday, December 12 4:05 AM SGT
Jesse Jackson Calls for Civil Unrest
Predictions of unrest, victory abound after court hearing
The United States will face a "civil rights explosion" if the US Supreme Court refuses to allow a recount of disputed ballots in Florida as part of a solution to the US presidential election impasse, a prominent civil rights leader warned Monday.

"Even if this court rules against counting our vote, it will simply create a civil rights explosion," said the Reverend Jesse Jackson as he emerged from the historic hearing, in which nine justices heard oral arguments from lawyers for Republican George W. Bush and his Democratic rival, Al Gore.

"People will not surrender to this tyranny," he stressed, pointing out that civil rights and labor organizations had agreed to launch a protest campaign at 5:00 pm (2200 GMT) Monday with demonstrations and prayer vigils in front of federal buildings here and in other cities.

"This people will not stand by and accept this with surrender," Jackson warned. "We can afford to lose an election -- you win some, you lose some. You can't afford to lose your franchise."

"People will be fighting for their right to vote and for their vote to count," the civil rights leader said, adding that the protest would only be expanding.

"The same forces that were against the Voting Rights Act of 1965 ... seek to disenfranchise us in 2000 and do not want to renew the Voting Rights Act in the year 2007," he added without specifically naming Republicans.

Should the Supreme Court rule against hand recounts, Gore's bid for the presidency is likely to effectively be over.

Both Bush and Gore need a victory in Florida to win the 2000 election. After the official certification of election results in the state last month, Bush holds a lead of 537 votes.

Jackson's comments matched the somber mood of other prominent Democrats who were invited to the hearing and later shared their impressions about it with reporters.

Senator Tom Harkin, an Iowa Democrat, made clear that he was not particularly encouraged by what he heard in the courtroom, although he refused to issue a prediction.

"If the Supreme Court continues to wade into this thicket and they make substantive rulings on behalf of the petitioner, which is George Bush in this case, this court could go down in history -- will go down in history -- as the most interventionist court ever," the senator said.

Court Upholds Military Ballots
The Associated Press
Monday, Dec. 11, 2000; 4:03 p.m. EST

ATLANTA –– An appeals court on Monday agreed with a federal judge who refused to throw out 2,400 of Florida's overseas ballots, mostly from military personnel, because they arrived after Election Day.

A three-judge panel of the 11th U.S. Circuit Court of Appeals said the ruling by U.S. District Judge Maurice Paul in Gainesville, Fla., was consistent with recent comments by Florida's highest court about the workings of the absentee ballot law.

The lawsuit brought by Democratic voters sought to eliminate enough ballots to change the election results in Vice President Al Gore's favor. Republican George W. Bush led by less than 200 votes as election challenges continued in the U.S. Supreme Court and elsewhere Monday.

"While Florida law seems to favor counting ballots, this change would take away the votes of thousands of Florida citizens – including members of America's armed forces on duty outside of the country pursuant to the nation's orders – who, to cast their ballots, just did what they were told by Florida's election officials," the appeals court said.

The appeals court rejected the claims of lawyers representing 13 individual Democratic voters whose lawsuits were combined before Paul.

The lawsuits claimed that state and federal laws, along with the U.S. Constitution, require all ballots to be received by the close of the polls on Election Day.

Roger Bernstein, a New York lawyer for the voters, said an appeal was likely.

"The decision seems inconsistent with the enacted laws of Florida," he said.

Joseph Klock, a Miami, Fla., lawyer for the Republicans, was returning from arguments before the U.S. Supreme Court and could not immediately return a telephone call for comment, according to his office.

© Copyright 2000 The Associated Press