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Boies tells Florida Supreme Court there's time for hand counts

Barry Richards and David Boies
Richards, left, and Boies may have presented their final arguments to the Florida Supreme Court in the battle for vote recounts  

TALLAHASSEE, Florida (CNN) -- Vice President Al Gore's attorney David Boies told the Florida Supreme Court that "time was getting very short," but there was still time to hand count thousands of disputed ballots.

The court peppered Boies and Texas Gov. George W. Bush's lead attorney, Barry Richard, with questions during Thursday's oral arguments of Gore's election contest appeal.

The justices were active in the 68-minute hearing, with the questions starting before Boies had finished introducing himself.

Gore's legal team told the court that Leon County Circuit Court Judge N. Sanders Sauls' was wrong to uphold the certification of Florida's election result and asked for a hand count of more than 14,000 ballots that were not read by voting machines in Miami-Dade and Palm Beach.

Bush's attorneys urged the seven-member panel to let Sauls' decision stand, which would give Bush a 537-vote win in Florida, and the 25 electoral votes he needed to win the presidency.

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The arguments come just five days before the deadline for the state legislature to select electors, a fact that was not lost on the court.

"All of these contests have to be concluded ... by December 12. We don't have a remedy here that can do that by December 12,'' Chief Justice Charles Wells said.

Justice Barbara Pariente asked how much time would be needed to complete the count.

Boies said the hand count could still be finished in the time remaining.

Richard argued that Gore's attorneys had not met the burden of proof to show that a hand recount would change the outcome of the election.

"The only thing they did was put two witnesses on the stand to say that they were speculating that the Votomatic machines are inherently unreliable," Richard said.

Justice Peggy Quince asked Richard if Sauls had used the standard set in the Florida statutes.

"Isn't that a different standard? I'm really having a problem with the reasonable probability of a different result standard that Judge Sauls talks about versus the rejection of votes that would put the election in doubt. Could you please explain the difference in the two?'' Quince asked.

Richard replied that he did not think a distinction was needed ''given the razor-thin record we have in this case.''

Another question the justices raised was whether they could order a hand count in selected counties.

"If we have undervotes in one location and those are considered, then you've demonstrated that there's legal votes that have not been counted. Why would that not exist in other counties?" Justice Fred Lewis said. He asked why any judicial relief would not have to be applied in a statewide undervote.

Justice Peggy Quince asked Boies why the court should not order hand recounts in all of the counties that used punch ballots.

"Is there something different about Dade, Broward and Palm Beach, and their use of the punch card, than the 17 other counties that also used punch cards?" Quince asked.

Boies replied that that the results were only challenged in those counties and that Florida law does not require that a party contest the results of all counties that used a certain type of ballot.

"What the sense seems to be is that somehow Gov. Bush's campaign should be protected from Gov. Bush's lawyers, if they didn't ask for a recount, and therefore there should be recount anyway, even if they didn't ask for it," Boies said.

Wells asked the attorneys to explain the court's role in deciding the case because McPherson v. Blacker held that the U.S. Constitution expressly delegates authority to the states to regulate the selection of presidential electors.

The U.S. Supreme Court cited the 1892 case Monday when it vacated the Florida court's decision to extend the deadline for certifying election results.

"My reading of that case is that the U.S. Supreme Court has said that the state legislature has plenary power, full power, in respect to appointment of presidential electors and that power cannot be eroded even by the state constitution," Wells said.

Boies argued that the legislature gives the court the right to interpret the statutes it passes.

Prior to the arguments, Gore aides described the Florida Supreme Court hearing as their "last stand," but Gore's legal team was not willing to rule out any options, including a possible appeal to the U.S. Supreme Court.

"We're not anticipating they're going to rule against us. We haven't really considered that at this point," Gore attorney Dexter Douglass said.

Boies added, "I think that what we've said from the beginning is our expectation is that this is a matter of Florida law, it's Florida election law, and the Florida Supreme Court is the final arbiter of that. That's the position that we've taken repeatedly in the Florida Supreme Court. It was the position we took in the United States Supreme Court.

CNN Correspondent Susan Candiotti contributed to this report.

Tallahassee, Florida - The Ball's In Sauls' Court
December 11, 2000
Gore says Sauls ruled in 'error of law'
December 6, 2000
Election battle returns to Florida Supreme Court
December 5, 2000
Gore still sees '50-50' chance of victory - December 5, 2000
December 5, 2000

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