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Unclear statutes make it an issue for courts to decide if vote totals don't arrive
By ALICIA CALDWELL, DAVID ADAMS and DIANE RADO
© St. Petersburg Times, published November 14, 2000
Secretary of State Katherine Harris wants the vote counters around the state to hurry up. But some legal experts wonder why the rush.
With the presidential race hanging in the balance, a circuit judge is considering Florida's contradictory elections laws to determine if Harris should impose today's 5 p.m. deadline for vote tallies around the state.
Elections law experts say the question before Leon Circuit Judge Terry Lewis is uncharted territory. It hinges on the judge's weighing of what would cause greater harm:
If he allows the state to enforce the deadline, the results of the hand tallies in Palm Beach and Volusia counties would be ignored if they don't arrive by 5 p.m. But allowing the counties more time to get the job done could encourage what Gov. George W. Bush's campaign calls "mischief" that might result from more hand recounts.
The trouble is, nobody had foreseen these circumstances when the elections statutes were drawn, said Bill Roberts, who was general counsel for the state Division of Elections for seven years in the 1960s.
Roberts, senior counsel for the Florida Association of Counties, said there is no easy answer as to whether Harris can impose today's 5 p.m. deadline. Elections law clearly contradicts itself. At one point, the law states Harris "may" ignore results if they are late. It also says Harris "shall" ignore them, Roberts said.
The more pertinent question might be whether anyone is harmed by extending the deadline for at least a couple of days.
Given that overseas absentees are not due until Friday, Roberts said, a judge might very well reason that the election will not be decided until then anyway and allow the counties a few more days.
"There really is no one harmed by that," Roberts said of a short extension.
Jamin Raskin, a professor of Constitutional Law at American University in Washington, said the Florida elections statute is not designed to disenfranchise voters from counties where election returns are late in arriving.
Instead, it is intended "to light a fire" under county election officials to meet the state's electoral timeline. The law even goes so far as to impose a $200-a-day fine on county canvassing boards that fail to meet the deadline.
"It certainly seems as if the statute delegates to her that decision as to whether or not to certify the results without other counties that are still counting," said Raskin, a Democrat and an expert in constitutional law. "I don't think the statute can be fairly read to disenfranchise voters in counties with slow-poke election officials."
Volusia County officials, who are counting votes for 14 hours each day, had sought an extension of the Tuesday deadline that counties face in delivering certified results to Tallahassee. That deadline is spelled out in Florida law.
Before the legal action was filed, Harris made her position clear: She was not going to give anyone extensions.
"If the certification is not in the possession of the Florida Department of State at that time, the law provides that the votes cast in that county will not be counted in the certification of the statewide results," Harris said.
She maintained she had little discretion.
"Such unforeseen circumstances might include a natural disaster such as Hurricane Andrew, where compliance with the law would be impossible," Harris said. "But a close election, regardless of the identity of the candidates, is not such a circumstance."
Another member of the state election canvassing board, Agriculture Commissioner Bob Crawford, a Democrat who supports Bush, defended Harris' decision.
"We looked very closely to see if there is any discretion," he said "There is no discretion."
Harris met briefly with Gore campaign officials, including former U.S. Secretary of State Warren Christopher, who called Harris' position arbitrary, unreasonable and politically motivated.
"She is a long-standing supporter of Gov. Bush, and I think her . . . statements have to be taken into that context," Christopher said.
Within the hour, Volusia officials filed the action Monday morning to hedge their bets.
In court, lawyers for Democratic presidential candidate Al Gore joined the counties in seeking an indefinite postponement of the deadline.
"Our most sacred right . . . is to have our vote counted to pick the leader of our country and the free world," said Dexter Douglass, who represents Gore.
Barry Richard, representing Republican candidate George W. Bush, told the judge: "No candidate, no political committee, no voter has a right to a manual recount at any time."
Jon Mills, University of Florida law school dean who served as speaker of the state House in the 1980s, said he agreed with the conclusion that Harris has no choice but to enforce the deadline. Mills, a Democrat, said the law was clear.
"If the county's returns are not received by 5 p.m., the county's returns will be ignored," Mills said.
Regardless of the circuit court's decision today, Mills said it is clear the issue will end up before a higher court.
"The Florida Supreme Court is going to have a role in this," Mills said. "These are questions of interpretation of Florida law that are of great importance and that's the place where we ought to have them handled."
- Times staff writers Thomas Tobin and Lucy Morgan contributed to this report, which contains material from Times wires.
From the state wire
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