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Election now rests with court
© St. Petersburg Times, published November 19, 2000 Finally, some clarity. For the first time in the remarkable drama over the presidential election, the lead that George W. Bush holds over Al Gore in Florida is certain now with Saturday's tally of the overseas ballots: 930 votes. It also is clear who decides what happens next. The Florida Supreme Court, its neat lawn trampled by television crews from around the world, hears arguments Monday afternoon in Tallahassee on whether the results from hand recounts of more than 1.6-million South Florida votes should be included. Palm Beach and Broward elections officials recounted thousands of ballots by hand again Saturday. Teams of lawyers and observers for Bush and Gore watched every move. The Republicans filed repeated challenges in an attempt to slow the recounts in the Democratic counties, apparently to try to prevent Gore from gaining significant ground before Monday's court hearing. But partial totals may be unimportant now. "I think as a matter of law it doesn't make any difference," Jon Mills, the interim dean of the University of Florida law school and former state House speaker, said Saturday of where the recount stands when the Supreme Court convenes. "What would make a difference is the final count, if it's legal and if it changes the result." There are essentially three questions before the court: Are hand recounts reliable? Is Florida Secretary of State Katherine Harris required to include them in the final tally? If she has a choice, did she act properly last week when she rejected the hand recounts and the state canvassing commission approved the county-by-county results? How the seven justices answer those questions this week could determine who wins Florida's 25 electoral votes and the presidency. If the hand recounts are allowed, Gore thinks he will pick up enough votes in the three counties he won to overtake Bush and claim victory. As lawyers for Gore and the Democratic Party filed their court briefs hours before the biggest event Saturday in Tallahassee, the University of Florida-Florida State University football game, the recounts grinded along in South Florida. So did the efforts by both campaigns to sway public opinion. "We now have clear and compelling evidence from eyewitnesses that this manual recount process is fundamentally flawed," Bush communications director Karen Hughes said in Texas, "and is no longer recounting, but is distorting, reinventing and miscounting the true intentions of the voters of Florida." Then Montana Gov. Marc Racicot recited allegations that Bush supporters hope will sour the country on the prospect that hand recounts could decide the election. Ballots used as fans. Bush votes stacked in piles of Gore votes. Chads taped to cover holes punched for Bush. Elderly vote counters who are exhausted. "I think when the American people learn about these things," Racicot said, "they're going to ask themselves, "What in the name of God is going on here.' " In Palm Beach County, vote-counters provided some answers. Yes, they said, a couple of Bush votes were inadvertently placed in the Gore stack but the mistake was corrected. Yes, there was tape on some ballots, but they were absentee ballots. But in Palm Beach and Broward, the vote-counters kept right on counting by hand well into Saturday night. In Miami-Dade, there was talk of running the ballots through machines again in an effort to reduce the number of votes that would have to be examined by hand. The county elections supervisor predicted the hand recount would not be done until Dec. 1. Gore campaign officials brushed aside the complaints from Bush headquarters. "The Republican strategy has been to stop the votes from being counted," Gore spokesman Doug Hattaway said. "Now it seems they are just disparaging the process." And once again, Hattaway reminded reporters that the Texas governor had signed into law a statute that allows hand recounts in Texas to take precedence over mechanical counts in some cases. Hand recounts are not unheard of in Florida, either, Gore and the Democrats noted in their brief that was filed with the state Supreme Court on Saturday afternoon. Their lawyers argued that Harris cannot reject the hand recounts and must allow the results to be added to the statewide totals. "It is contrary to a democratic system that rests on elections being determined by the will of the people," they said, "not the whim of state officials." And the will of the people, the lawyers contended, is best determined by hand counts of votes rather than by mechanical counts. They said hand counts can catch votes that voters intended to cast but that machines failed to read. Just because ballots were not marked in a manner so the machines could tabulate them, they said, does not mean that those votes should not be counted. The Democrats also took issue with a series of moves by Harris last week. They recounted how the secretary of state, a co-chairwoman of Bush's Florida campaign, warned counties she would enforce a Tuesday deadline for their vote totals to be sent to the state. Then she issued two opinions, one to Palm Beach County that said hand recounts were no excuse for missing the deadline and another that said manual recounts are only allowable in cases where mechanical systems failed to count properly marked ballots. Finally, Harris ordered counties to explain why they should be allowed to turn in hand recounts after the Tuesday deadline. After receiving explanations from four counties, she rejected them and the state canvassing commission certified the county-by-county results. "Taken as a whole," the Gore lawyers wrote, "her approach has been Kafkaesque: She has tried time and again to direct the counties to stop counting -- and then, once these directives have been set aside by the courts, she has sought to reject these votes because of the counties' failure in obedience to her directives to complete the counts on a timely basis." The Democrats also offered a fall-back argument. If Harris does have the discretion to decide whether hand recounts should be accepted, they wrote, she abused it last week. They said the secretary of state used the wrong standards to determine whether she would consider the manual counts. Those standards included some used by the courts to determine whether to uphold the results of a challenged election, such as evidence of fraud and whether the will of the people was reflected. There is a difference between courts overturning election results and elections officials deciding whether to accept hand recounts that could determine the outcome of an election, the Democrats said. In any event, they said, Harris and the canvassing commission should not declare a winner in the presidential election without the totals from the manual recounts. What if Gore came out ahead with votes from the manual recounts after Bush was declared the winner of the election? "Not just within our country, but all around the world, that confusion would likely generate considerable instability that, in turn, would produce irreparable injury," the Democrats' lawyers wrote. "Those injuries could be avoided if the secretary and the Elections Canvassing Commission simply waited for the results of the manual recounts and then took those results into account in determining the winner of the presidential election." It was the Supreme Court's one-paragraph order late Friday afternoon that put the election on hold and provided an exclamation point to days of hearings and orders in state courts from South Florida to Tallahassee and in federal courts from Miami to Atlanta. And it came without warning. Just hours before, a circuit judge in Tallahassee had sided with Bush and found Harris had properly exercised her discretion in rejecting the hand recounts. State elections officials had planned to certify the state results Saturday after the overseas ballots were counted. Bush was prepared to claim Florida and the presidency. "Everything is topsy-turvy again," said University of Florida political scientist Richard Scher minutes after the Supreme Court ordered state elections officials not to certify the election. While the court's decision to take control of the situation was a victory for Gore, Scher said it also could benefit Bush and the Republicans if the Texas governor winds up in the White House. He said a defining court opinion could take the heat off of Harris and other Republicans, who would be accused by Democrats of blocking the manual vote counts that could have handed Florida to Gore. "This gets some of the monkeys off of their back," Scher said. Bush's lawyers will file their response with the court today, but the Texas governor's position is clear. He contends that hand recounts are subjective and less accurate than mechanical vote tallies. He also thinks Harris acted appropriately when she refused to consider the hand recounts last week. "Gov. Bush and Secretary Cheney are very pleased that the returns from the overseas absentee ballots have increased their lead in the state of Florida," Hughes said, before complaining about the Democrats' efforts to disqualify overseas ballots from military personnel. "Florida's votes have now been counted and recounted, and in some areas recounted three or four times. And the overseas ballots have now been counted. All of those times and all of those counts show that Gov. Bush and Secretary Cheney won the state of Florida." "We are hopeful that once the Supreme Court hears arguments in this case on Monday, the laws of Florida will prevail and the election will be certified." That would hand Bush the presidency. Bush has won 29 states and has 246 electoral votes; it takes 270 electoral votes to win. Gore leads in the national popular vote and in electoral votes now, with 267 electoral votes from 20 states and the District of Columbia. The winner of Florida moves into the White House in January. This week, the state Supreme Court will determine whether it's Bush or whether Gore still has a chance to catch him.
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