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Deadlines and 'will of the voters' debated in Florida Supreme Court

Chief Justice Charles T. Wells
"The court is certainly aware of the historic nature of this session and is aware that this is a matter of utmost and vital importance to our nation, our state and our world," Chief Justice Wells said to open Monday's hearing  

TALLAHASSEE, Florida (CNN) -- The attorney representing Florida Attorney General Bob Butterworth told the Florida Supreme Court Monday that the logic used to reject manual recounts was flawed.

"It's flatly wrong," Paul Hancock said. "It elevates the machines over voters."

Attorneys representing Vice President Al Gore argued that the manual recount should go forward because it was the best way to determine the will of the voter, while Texas Gov. George W. Bush's said the hand count was prone to human error and potential bias.

Gore attorney David Boies said Florida law does not prevent counties from submitting amended election returns after the November 7 deadline enforced by Secretary of State Katherine Harris.

Key court filings in the election cases before the Florida Supreme Court from the court's Website
(These require Adobe® Acrobat® Reader™)

Petition from Palm Beach County - November 14
Initial brief of Attorney General Robert A. Butterworth - November 18
Brief of Al Gore and Florida Democratic Party - November 18
Answer of George W. Bush - November 19
All election litigation filings before the Florida Supreme Court
Florida Code Title IX - Laws concerning Florida Electors and Elections (Florida Legislature Web site)

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He said that the official result includes initial returns as well as the results of manual recounts and the absentee ballots that were not included in those first seven days.

When questioned by Justice Major B. Harding, Boies conceded that the secretary of state did have the discretion to set a deadline, but said the court should limit it.

"I think, your honor, you could say -- and this is not that different from what we have argued -- that as long as the manual recounts will not impair the final certification in time to permit the selection of electors by December 12, that those manual recounts must be included," Boies said.

Justice Barbara Pariente then asked if going forward with the recount in selected counties was unfair to the remaining counties, as Bush's attorneys argue.

"The first thing, your honor, is that any candidate could have requested a manual recount in any county, so that the manual recount provision is something that by statute is given to the candidates. And wherever there has been a manual recount requested, the counties have gone forward, and indeed some of the results that have already been certified have been results that included manual recounts," Boies said.

He also said he felt that the court had the authority to request a statewide recount even though the deadline for requesting one had passed.

The justices repeatedly asked Boies how the deadline should be set, since it is not laid out in the statutes. He suggested the court determine how long it would take to contest the official election results and then work back from the December 12 date for appointing electors.

Joseph Klock, the attorney for Harris, said that the problem the court was being asked to deal with was a political problem, not a legal one.

He said that it was reasonable for Harris to reject late manual recount returns and that it was the county's own fault for missing the seven-day deadline.

Klock said that candidates had the right to request a manual recount late in the process, but not without risk.

"If you are permitted to initiate something at any point and time, and it has to be turned in at a certain time, that is the same basic rule that I had in high school with term papers. You can start the term paper the night before, if you want to, but it is unlikely that you'll be able to turn it in the next day when it's due," Klock said.

Klock tells the court the secretary of state has the right to establish criteria for determining whether or not a late filing will occur  

Pariente asked Bush attorney Barry Richard if the 10 days for certifying overseas absentee ballots created a hole in that argument.

"If you'll read the statute, it says there is one certification mandated by 5 p.m. seven days after the election, and that's the only one," Richard said. "The only reason there's a second one for overseas absentee ballots is because the federal Congress has stepped in, as they have the right to do, and has said that the states must allow that. But only to that extent."

It is unclear when the court will rule.

Bush, Harris urge end to Florida recount; Gore seeks uniform standard
November 19, 2000
Gore asks Florida high court to set standards for recount
November 19, 2000
Presidential vote recounts yield few changes so far, officials say
November 19, 2000
Democrats protest exclusion of ballots in Palm Beach County
November 19, 2000
Lieberman says Dems not trying to block absentee ballots
November 19, 2000
Congress studying electoral college scenarios
November 19, 2000
Bush camp blasts 'flawed' count
November 18, 2000
Candidates' lawyers head for court showdown in Florida
November 18, 2000
Manual recounts continue as court refuses Republican request for a halt
November 18, 2000

Florida State Courts
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