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." e House , 'Cf*' > ' atm* The Road to the White House //m^k ri 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 * d '* Am! 1 •>» 1 “»*** 4 > sCj r '*
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