Election law analyst Ken Gross on the Florida Supreme Court hearing

Election law analyst Ken Gross is providing commentary for CNN on the Florida Supreme Court arguments posed by the campaigns of Republican George W. Bush and Democrat Al Gore on whether the hand counts may continue and be included in the final tally of Florida votes.

Ken Gross

Q:What should viewers take away from the hearing?

Gross: I think they should take away the impression that the Florida Supreme Court is taking a very active position on this case and will issue a substantive ruling that appears to attempt to find a way to let as many votes get counted as possible without jeopardizing the whole state count.

That would mean that it would set a new deadline for recounting the votes that are being counted but allow enough time for either campaign to contest that count prior to December 12, which is the day that the electors must decide for whom they are voting.

Q:Did one side put forth a particularly compelling argument?

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The other important issue that was touched upon was the question of what standard should be used in the recounting process: Specifically, should the recounting process tabulate merely dimpled, or pregnant chads, as opposed to those that are disconnected on one corner or two corners?

The court quizzed Bush's counsel on standards in other states and Bush's counsel indicated he was unaware of other state law.

Interestingly, the Gore brief details the laws of many other states which tend to allow dimpled ballots and the brief emphasized for obvious reasons that Texas allows dimpled ballots, although there are states, such as Illinois that reject merely dimpled ballots. So there is a lot of law in other states but none binding on Florida, because Florida courts have never answered that question and the state legislature has never addressed it.

This is a very significant question because we understand that Broward County has set aside many dimpled ballots, and they could easily add to Gore's total.

Q:What about setting a uniform standard for counting chads?

Gross:The justices have a couple of options regarding the chads. They could expressly dictate uniform standards -- such as count dimpled chads, don't count dimpled chads -- or they have the option of not dictating a uniform standard, leaving it up to each canvassing board. With regard to that, the justices questioned whether a lack of a uniform standard would raise constitutional questions. The Bush counsel indicated that it might, but that's the argument they made in federal court, which has so far been unsuccessful.

Gross: The justices did express concern that if they allow too much time for the recounting process, that it would not leave time for either Vice President Gore or Governor Bush to contest the election that can only occur after the counting and certification is done, if the justices extend the deadline. If they run too close to the December 12 date when the state electors are supposed to lock in, it could jeopardize the entire vote of the citizens of Florida.

That whole analysis of where you draw the deadline in order to make sure that all the voters get recognized as well as allowing the ones being counted to be recognized: If that's the balance that's being considered, that's good news for Gore in that it contemplates the court setting a deadline to allow for the recounted votes to be recognized.

Q:What did you make of the argument that this is mostly a political question?

Gross:I don't know that the court is persuaded by the argumentation that this is a political question rather than a legal question. Rather, it is a legal question that has political implications -- to the extent that the court will put blinders on to the political implications.

This is a court of law. They're going to read the statutes and attempt to interpret them consistent with precedent, but with the overriding concern that the votes of the electorate be counted, according to Chief Justice (Charles) Wells.

Wells stated that the court "has a longstanding policy that the real party in interest in any election law case is the voters themselves." From that proposition I inferred a desire to count votes rather than be bound by any statutory deadline.

Gross: It depends on who loses. If Gore loses, it's going to be very difficult for him to pursue this much further. There are many legal options available. Once the elections are certified, the Gore campaign could still contest the results under a separate provision of Florida law. Or, they could appeal it to the U.S. Supreme Court.

If the Gore campaign wins, then they need to wait and see how the recounting goes -- and if the recounting favors Gore, he will declare victory and the Bush campaign will then be faced with a couple of options. One would be to appeal this case to the U.S. Supreme Court or bring a separate case back to federal court, or perhaps even more likely, look to the Florida legislature, which is controlled by Republicans, and ask if the legislature will appoint electors favorable to the Bush position -- in a sense attempting to trump the decision of the Florida Supreme Court.

Those options are not necessarily mutually exclusive.

They both have introduced a federal question in their briefs -- interestingly, the same constitutional questions in their briefs. ... Each side has preserved in their back pocket the federal question and the possibility of appealing to the U.S. Supreme Court.