PAG!" 6A
SCRATCHING AND CLAWING
Courts stepping lightly
major political minefield
by Charles Lane
The Washington Post
WASHINGTON The Florida state Su
preme Court's ruling Thursday adds the im
primatur of the state's highest judicial body
to the view already taken by a federal court
and three Florida state trial judges: that manual
recounts of the ballots from Nov. 7's presi
dential election may go forward.
At the same time, however, the courts so
far have stepped carefully in the political
minefield of the election dispute, issuing cau
tious rulings and declining to say that the re
sults of the recounts must be included in
Florida's final certification.
The upshot is that the legal action so far
allows both sides to continue pursuing their
chosen political strategies and to claim that
the status quo favors its side.
The Gore campaign's game plan is to make
sure that the manual recounts continue in
heavily Democratic counties of the state, and
Thursday's action by the state high court ac
tion broke the logjam that had prevented Palm
Beach from even starting that enormous task.
Meanwhile, the Bush campaign is banking on
getting to Saturday and state officials' ex
pected certification of Bush as the winner af
ter the final absentee ballots are counted.
Acutely aware of the institutional and per
sonal risks inherent in the polarized partisan
battle raging around them, judges seem to be
taking shelter in the judiciary's instinctive
aversion to unnecessarily broad edicts, par
ticularly when the matter involves interven
ing directly in electoral politics.
Courts are saying that they will sort out the
issues before them-but only the issues before
them.
Indeed, the Florida Supreme Court's cau
tious 89-word "interim order," issued solely
in response to a request for guidance from
Palm Beach County about the legality of
manual recounts under state law, was notable
for what it did not say.
It did not, as Republicans were quick to
Lawyers argue over Harris' role in recounts
by Peter Slevin
The Washington Post
TALLAHASSEE, Fla. Lawyers for both
sides in the disputed presidential election ar
gued Thursday about whether Florida Secre
tary of State Katherine Harris was right to
enforce a strict deadline for counties to sub
mit their final vote counts, and the judge said
he would rule on the important issue Friday
morning.
Harris' lawyers described her as careful, stu
dious and respectful of state law when she
decided not to include further hand-counted
ballots in the state's presidential vote totals.
Harris Wednesday night announced that she
would not accept any new tallies submitted
after the statutory deadline of 5 p.m. Tues
day.
Attorneys for her office and the campaign
of Texas Gov. George W. Bush blamed offi
cials in Palm Beach, Broward and Miami-
Dade counties for counting too slowly and
missing the deadline.
As a crucial fight over the deadline played
out before Leon County Circuit Judge Terry
P. Lewis, lawyers for Vice President A 1 Gore
countered that Harris "decided long in ad
vance" to reject the ballots from predomi
nantly Democratic counties. They said the
Republican official acted arbitrarily and
abused her discretion.
"Rather than considering all relevant facts
and circumstances in taking these actions, the
secretary has directed an unwavering effort
to stop the manual counting of ballots," the
Gore lawyers argued. They called part of Har
ris' decision process "a charade."
The Democrats rushed to court to persuade
Lewis to nullify the vote totals certified
Wednesday night by Harris and the 3-mem
ber state canvassing board. They also asked
the judge to authorize the continued recount
and to require Harris to give' 'due and proper
consideration" to counties that submit hand-
Race
point out, rule directly on whether the recounts
were legal. Rather, the court's statement sim
ply noted that lower state courts had indicated
they could proceed. "At present," the court
said, "this is binding legal authority on this
issue."
Perhaps more important, the order con
tained nothing about what may be the most
critical issue of all: the legality of Secretary
of State Katherine Harris' decision to exclude
all recount results that were not certified to
her by 5 p.m. Tuesday.
That matter could start making its way to
ward the Florida Supreme Court today. This
morning, Leon County Circuit Judge Terry P.
Lewis is to rule on the Gore forces' conten
tion that Harris' decision to enforce the dead
line violated his previous directive that she
not act "arbitrarily."
One possibility, given Lewis' cautious ap
proach in his initial ruling, is that he might
hold off until the recounts are actually fin
ished, since the question of whether Harris
was right in refusing to accept new results
would not matter if the final tally that would
not change the outcome.
Whatever Lewis decides, his ruling will be
appealed. Then, and only then, Florida law
yers said, would the state Supreme Court
tackle the issue for the first time.
"What's going to go up on appeal is Terry
Lewis' order," said Tallahassee lawyer Bill
Bryant. "That way there's a disposition on
factual issues and all they have to do is talk
about the law. That's what appellate courts like
to do."
A 12-year-old Florida Supreme Court pre
cedent may provide at least a faint hint of how
the court would ultimately decide the issue.
Ruling on a disputed congressinal race in
1988, the justices unanimously refused to
throw out an entire county's ballots because
the recounted results were submitted in writ
ing eight days after the election, instead of a
week as the law required.
However, in that case, the county had al
ready phoned in its results before the dead
line.
counted totals in coming days or weeks.
The stakes are so high for each campaign
that, no matter which way Lewis rules, the
Florida Supreme Court seems certain to be
asked to decide whether Harris properly cer
tified the vote, although she will add over
seas absentee ballots on Saturday. In earlier
cases, the court has ruled that the right of vot
ers to be heard may trump strict legal require-
ments.
A 1975 dispute over absentee ballots, for
example, prompted the court to warn that vot
ers must not be disenfranchised lightly: "A
fair election and honest return should be con
sidered as paramount in importance to minor
requirements which prescribe the formal steps
to reach that end."
The Bush camp and the Florida secretary
of state are portraying the deadline as any
thing but minor. Without setting rules and fol
lowing them, Harris and her supporters have
argued, there can be no finality to the election
and no winner of Florida's 25 electoral votes
and the White House. They contend Harris
has discretion to decide whether to include
totals that arrive late.
Lewis agreed earlier this week that Harris
has the authority to make that decision, but
he strongly cautioned her to make it with "due
consideration of all relevant facts and circum
stances." He noted the amount of time it could
take to hand-count more than 1.5 million bal
lots in the three South Florida counties. When
Harris certified the statewide total and rejected
any further additions on Wednesday night, the
Gore campaign soon filed papers complain
ing that Harris had done exactly what Lewis
had forbidden. Gore attorney W. Dexter
Douglass told the judge that Harris "did not
consider any facts and circumstances."
As evidence, Douglass and his colleagues
pointed to a sequence of events that followed
Lewis' initial Tuesday afternoon ruling. That
night, Harris requested that the three counties
describe their reasons for seeking extensions.
On Wednesday afternoon, the counties said
for the Whit
Meanwhile, the Bush campaign prepared to
press its federal lawsuit against the manual
recounts in an Atlanta appeals court.
The case is an uphill battle for Republicans
as they seek to convince the 12 members of
the 11th Circuit Court of Appeals that the
Florida law on recounts is so arbitrary that it
violates the constitution's guarantee of due
process.
In pressing this claim, the Republicans must
deal with fairly well-established legal doctrine
that the administration of elections for mem
bers of the electoral college is under the con
trol of state government. On Monday, District
Judge Donald Middlebrooks of Miami cited
this body of law when he declined to assert
federal jurisdiction after a hearing last Mon
day.
The Bush lawyers' task is also complicated
by the fact that they are asking the court to
invalidate the statute permitting recounts even
before the recounts have fully taken place.
Their brief said the federal courts had to
step in because of the extraordinary circum
stances.
"Eight days after Florida's Presidential
vote, the entire nation is witnessing the disin
tegration of a process that was designed to
elect America's president," the brief said. "The
Florida manual recount process is being used
to eliminate any possiblity of an orderly, ra
tional, and final end to the election, and to
deny the protections of the Constitution not
only to the parties who brought this case, but
to all Americans."
But, in their brief, the Democrats warned
the appellate court that interfering with the
"reasonable and trustworthy" state election
procedures would create more, not less, con
fusion and interfere with a matter expressly
committed to the states. The Republican ar
gument, they said, "reflects an intense dis
trust of the law and courts of the state of
Florida and a desire for the federal courts to
dictate the details of Florida's electoral pro-
the recounts required time-consuming work
and had been delayed by Harris' advisory that
the recounts were themselves illegal.
Eight hours after Harris received the coun
ties' explanations, she rejected them and cer
tified results of previous counts that put Bush
ahead of Gore by 300 votes out of roughly 6
million cast. She said she had acted carefully
in concluding that the counties offered no
good grounds for missing the deadline.
Douglass noted in court that Palm Beach
County, after receiving conflicting rulings
from Harris and Democratic Attorney Gen
eral Robert Butterworth, had delayed its
manual recount and asked the Supreme Court
to decide which state official was right. The
high court said Thursday that the counts may
continue.
In his folksy North Florida drawl, Douglass
likened the counties to a hapless motorist
pulled over by a policeman. While the driver
is waiting, a line of traffic builds up behind
his car, and then the policeman writes him a
ticket for blocking traffic.
Lawyers for Harris and Bush countered that
the secretary of state was bound by law to
enforce the deadline when the counties offered
no good reason to delay. Washington D.C.
lawyer Michael Carvin said the deadline pro
vision is more important than another portion
of Florida law that the Democrats say grants
them a right to a manual recount.
"This conflict is fictitious," Carvin said,
arguing that the counties should have worked
faster if they wanted to conduct recounts.
"What you do is get the personnel and get it
done. That's not optional."
Carvin pointed to the actions of Palm Beach
County's canvassers before Harris issued her
opinion that the hand counts were unwar
ranted: "They took Thursday off. They took
Friday off. They worked hard on Saturday.
They took Sunday off. It would be an abuse
of her discretion to tolerate this type of ex
traordinary delay."
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The Road to the White House
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The possibilities...
With five states under scrutiny, many scenarios could take
place if hand recounts continue in Florida. Oregon, lowa,
Wisconsin and lowa could all have recounts that could put
this election in even more turmoil...
Gore - Wisconsin, Oregon, New Mexico, lowa = 267
Bush - Florida = 271
Gore - Florida = 262
Bush - Wisconsin, Oregon, New Mexico, lowa = 276
Gore - Florida, New Mexico = 269
Bush - Wisconsin, Oregon, lowa = 271
Gore - Florida, Wisconsin = 273
Bush - Oregon, New Mexico, lowa = 265
Gore - Florida, lowa = 269 *
Bush - Wisconsin, Oregon, New Mexico - 269 *
* If states are tied and all electors pledged to the candidates vote for
their candidate in the Electoral College this December, the House of
Representatives would choose the President, and the Senate would
choose the Vice President. It doesn’t end there. The Republicans still
hold the majority in the House of Representatives, which would likely
see them voting for George W. Bush. If Maria Cantwell of Washington
can hold on to her slim lead in her Senate race, she would pull the
Democrats into a tie with the Republicans in the Senate, 50-50. The
Vice President would then break the tie, ultimately choosing the next
Vice President. A 1 Gore would be the man to break the tie and would
likely choose the Democrat, Joe Lieberman. The result?
President George W. Bush
Vice President |oe Lieberman
FRIDAY, NOVEMBER 17, 2000
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