Florida Justices May Have Final Word on Ballots

For the Florida Supreme Court, six of whose seven justices are Democrats, today’s televised hearing in Palm Beach County Canvassing Board vs. Katherine Harris will provide a crucial opportunity to gain the one thing that no one in the ballot counting process appears to have so far--broadly accepted legitimacy as a neutral referee.

If the court succeeds in that task, today’s hearing could provide a first step out of the partisan swamp of the Florida vote count. It will also almost certainly establish the case as the most significant ever to come before the court in its 155-year history.

The justices have ruled on many important cases--including dozens where they have decided whether a convicted murderer lives or dies. But never before have they, or any state court, been asked to resolve a dispute in which so many people across the country believe they have a stake.

Depending on how the court’s ruling is written, it could be the last legal word on the balloting question. The U.S. Supreme Court repeatedly has said that it has no authority to alter a state Supreme Court’s interpretation of its own state’s laws. Whichever side loses today’s case will be able to appeal further only if they can convince the U.S. Supreme Court that some federal law or constitutional provision has been violated by Florida’s ballot laws--a difficult task.

Former American Bar Assn. President Chesterfield Smith of Miami, who has argued more than 100 cases before the court since 1948, said, “This is not an ideological court. They will try to decide this case based on the law,” Smith said.

What the law requires, of course, is hotly contested. In their briefs to the court, the contending parties have mostly reprised now-familiar arguments.

Florida Secretary of State Katherine Harris is asking the court to allow her to exclude all hand-recounted ballots.

Vice President Al Gore’s lawyers are asking that recounts underway in three primarily Democratic South Florida counties be allowed to continue and to count in the final tally.

Texas Gov. George W. Bush’s lawyers are backing Harris, as is the Florida Republican Party, each in a separate brief.

The one new, albeit tentative, note came in a brief filed Sunday by lawyers for Florida’s state Republican chairman, Matt Butler. The brief suggested for the first time that if recounts are to be allowed, the entire state should be recanvassed.

That “would be much fairer to the whole state” than allowing “geographically limited changes,” the brief states.

Because recounts almost always increase the number of votes deemed valid, a recount in Democratic counties is likely to aid Gore. Republicans say that that is unfair, although Democrats note that the Bush camp chose not to ask for recounts in places Bush won heavily.

Last week, Gore suggested a statewide recount, but it was rejected out of hand by Bush. On Sunday, one of Gore’s principal attorneys said he found it curious that the Republicans had raised this issue. But a lawyer for the Bush campaign, speaking on condition of anonymity, said the Bush team had no intention of pushing for such a process.

The justices have three distinct questions before them.

Were the county officials authorized under state law to undertake a hand recount of all their votes? Must the state accept those recounted votes, even if they are submitted well after the seven-day deadline? Should the court set standards for what constitutes a valid ballot--something Gore has asked for.

Some legal experts cautioned that the high court may not seek to answer all the questions at once.

“They may take the least activist approach and just say the manual recounts are legal,” said Jon I. Mills, dean of the University of Florida’s law school.

A narrow decision would give the counties more time to finish their hand counts. Then, the court could take up the question of whether those votes must be included in the state totals, he said.

This approach would allow Gore more time to whittle away at Bush’s lead. For Bush, it would permit further opportunities to challenge the hand recounts as flawed and unfair, something his aides have been claiming vocally.

The issue of what constitutes a valid ballot--whether, for example, a so-called dimpled chad is proof that a voter intended to cast a vote for a candidate--was raised in the Democrats’ final brief Sunday. So far, Broward County has taken a more expansive view of what constitutes a valid ballot than has Palm Beach County. As a result, Gore has picked up more votes in Broward.

Legal observers expressed doubts that the court would immediately wade into that dispute given the lack of any detailed evidence presented it so far.

“I would be very surprised if the Florida Supreme Court came out with rigid guidelines on how many corners of a chad have to be detached from the ballot in order to be counted,” said Stanford University law professor Pamela Karlan, a voting rights expert.

In today’s argument, each side is scheduled to have an hour to make its case. Attorneys for Harris had asked for additional time, contending the agency was independent of the Republicans. Democrats scoffed at that contention, noting that Harris was co-chair of Bush’s Florida campaign. The court on Sunday denied her request.

The Democrats said they plan to have five attorneys speak for them, led by David Boies, the highly skilled trial lawyer from New York who spearheaded the Justice Department’s successful antitrust case against Microsoft Corp.

Bush’s team will be led by Michael A. Carvin of Washington, who served as a deputy attorney general in the Reagan administration and has argued several cases before the U.S. Supreme Court.

In their briefs, Bush’s lawyers argue that the seven-day filing deadline set in Florida law trumps the county’s power to manually recount its votes.

They maintain that officials in Palm Beach County could have undertaken a hand recount of all their ballots immediately after the Nov. 7 election. Instead, it took the local officials more than a week to begin the task, the brief stressed. Broward and Miami-Dade counties took even longer, as local officials were divided on whether a full hand recount was needed.

Now, the Bush lawyers contend, it is too late. “A manual recount may be conducted” under Florida law, they concede, “but it must be completed with seven days.”

“There is not a scintilla of evidence that any of the three counties at issue were unable to meet the Tuesday deadline--as Volusia County did,” Bush’s lawyers asserted. Because of that, Harris was justified in refusing to accept the late returns, they wrote, adding that the secretary of state need not “hold the results of a national election indefinitely pending completion of selective manual recounts in individual counties.”

The Democrats, in their brief, cited a 1988 Florida Supreme Court precedent in which the justices stressed that “the electorate’s effecting its will through its balloting, not the hypertechnical compliance with statutes is the object of holding elections.”

The hand recount of ballots is a procedure “long established in Florida law [and in the laws of many other states] to ascertain the electorate’s will,” they argue.

If Harris and the Republicans prevail in their insistence on a strict deadline, “voters will inevitably be disenfranchised,” the Democrats say.

For the justices, this case is complicated because of an apparent conflict written into Florida law.

On one hand, county election boards are given broad power to count the votes and even “determine a voter’s intent” when it was not clear at first glance.

If these county officials find “an error in the vote tabulation that could affect the outcome of the election,” the law says they “shall . . . manually recount all the ballots.” Gore’s lawyers rely on this provision in defending the hand recounts in the three counties.

But the law also says “returns must be filed by 5 p.m. on the seventh day following the . . . general election.” If the secretary of state has not received the returns by then, “such returns may be ignored.”

Lawyers for Bush and Harris argue that these provisions give the secretary of state the final word on whether to accept or reject the hand recounts. Her decision to reject the late returns is due to a “strong degree of deference by the courts,” Harris’ lawyers say.

In her separate brief, Harris faults not only the counties for being late in conducting their recounts, but clumsy voters for improperly punching ballots.

“Florida law authorizes the use of electronic voting systems. A voter must comply with the instructions,” she said.

Karlan and Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles, both said the court had at least three options in deciding the case.

The first would be to uphold Harris. That would still leave Gore the option of going back to court to contest the election after Harris certified the results.

The court could take a middle course by saying that Harris misinterpreted the law on the extent of her discretion and send the matter back to her with directions that she act again, consistent with instruction from the court. The problem with that course of action, in this situation, is that it would delay the ultimate resolution in a situation where time is a critical element, both scholars said.

Or the court could find that Harris had abused her discretion and order her to accept the manually recounted ballots.

Mills, the Florida law school dean who is a former Democratic legislator, said too many commentators in the media and campaign aides on both sides are assuming the state high court will tilt in favor of the Democrats because its members were appointed by Democratic governors.

“Speculation about what they will do here is very unwise,” Mills said. “They will not view this as a partisan matter or an ideological issue. They will be writing for history.”

Florida State University law professor Jim Rossi agreed. “Whatever decision the justices make, they will want to make it with as close to unanimity as possible,” he said. “This court knows that the eyes of the world are upon it.”

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Weinstein reported from Los Angeles and Savage from Washington.

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Today’s Showdown

Here is a look at today’s Florida Supreme Court hearing, the legal teams and the arguments

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Florida’s Supreme Court (Tabular data not included)

Compiled by NAN WILLIAMS and MASSIE RITSCH