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Supreme Court ruling sets off legal volleys

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By TIM NICKENS

© St. Petersburg Times, published November 23, 2000


The battle for the presidency turned into a stampede to court Wednesday with appeal after appeal after appeal.

Hours after George W. Bush complained that the Florida Supreme Court improperly meddled in the election, he appealed to the U.S. Supreme Court to overturn the state court's ruling that hand recounts must be included in the state's final results.

In Miami-Dade County, Al Gore's lawyers appealed the county canvassing board's decision to give up trying to do hand recounts before Sunday's deadline. Late Wednesday, a state appeals court upheld the election board's decision.

At the other end of the state, Bush and the Florida Republican Party asked a Leon Circuit Court judge in Tallahassee to force 13 counties, including Pasco and Hillsborough, to count overseas military ballots that were rejected because they lacked postmarks.

But back in South Florida, Gore won a victory as a Palm Beach County judge ruled that the local canvassing board can count dimples on punch card ballots as votes.

The expansion of the court fight left participants, cable networks and analysts struggling to keep up.

"I don't know what to expect next -- except there will be a next," said Donald E. Lively, dean of the Florida Coastal School of Law in Jacksonville.

By day's end, the fight for Florida and presidency appeared likely to drag on in court beyond this weekend, particularly if Gore overcomes Bush's lead.

While the lawyers hustled between courts, Republicans cranked up their attacks on the Florida Supreme Court's unanimous opinion. Bush and his supporters called Tuesday night's dramatic ruling unfair and an intrusion by the judicial branch into the responsibilities of the legislative branch.

"We believe the court overreached," Bush said in Texas. "Make no mistake, the court rewrote the law. It changed the rules, and it did so after the election was over."

He stopped just short of contending that the court effectively was stealing the election from him by allowing the hand recounts in three South Florida counties won by Gore. Other Republicans said it for him.

"(The Supreme Court decision) serves as a chilling reminder of the need for vigilance to ensure that the actions of unelected judges do not usurp the right of the people to govern themselves in a democracy," said Senate Majority Leader Trent Lott, R-Miss. "This cannot stand."

But Bush's lawyers were hurrying to file motions in other courts as the Texas governor wished network television viewers a happy Thanksgiving.

Florida State University law professor Nat Stern was skeptical that Bush would succeed in overturning the hand recounts at the U.S. Supreme Court. Bush lawyers already have failed to persuade the U.S. District Court in Miami and the 11th U.S. Circuit Court of Appeals in Atlanta to reject the hand recounts. The appellate court refused Bush's emergency request but is poised to consider further arguements next week.

"It's a well-established principle that the state supreme court of each state is the ultimate arbiter of the meaning of that state's law," Stern said.

In the U.S. Supreme Court, the Bush lawyers argued that the state justices violated the U.S. Constitution's separation of powers doctrine by determining election deadlines and recount rules that federal law invests in the legislature. They also said the counts were so selective and unevenly carried out that they violated the Constitution.

"This is a case of the utmost national importance, involving the Constitution's most fundamental rights as exercised in the nation's most important election," the lawyers said in court papers. "The outcome of the election for the presidency of the United States may hang in the balance."

Without a decision by the Supreme Court, "the consequences may well include the ascension of a president of questionable legitimacy, or a constitutional crisis," the appeal said.

"The unequal, constantly changing, and standardless selective manual vote recount under way for the past two weeks in Florida is a patently unfair process that is having an impact far beyond Florida's borders, and that cries out for correction by this court."

The Bush team did not ask for an emergency hearing, apparently betting that the Texas governor still will be ahead when the recounts are finished Sunday. Instead, the lawyers asked for a decision before Dec. 18, the day electors are supposed to meet in state capitals to cast their ballots for president. Gore now has 267 electoral votes and Bush has 246. The winner of Florida's 25 electoral votes will win the presidency.

Gore spokesman Doug Hattaway predicted the court will reject Bush's arguments. "There's no way that counting people's votes can be unconstitutional," he said.

The Democrats are more reluctant to criticize an effort by Bush and the state GOP to force canvassing boards in 13 counties to accept overseas military ballots that arrived without a postmark or with a late one.

"These ballots have been rejected even though no postmark is required under applicable Florida and federal law," Republican lawyers said in the brief filed in Leon Circuit Court.

The case was assigned to Circuit Court Judge Terry P. Lewis, the same judge who heard Bush's arguments that hand recounts were illegal because they were too late. Lewis later ruled Secretary of State Katherine Harris properly exercised her discretion when she refused to accept the hand recounts after Nov. 14 -- and was overruled by the Florida Supreme Court.

More than 1,500 overseas absentee ballots were rejected by county canvassing boards. Many of them were from the military and were discounted because they did not have postmarks or had other shortcomings. In Hillsborough 74 overseas ballots were rejected and in Pasco 28 overseas ballots were rejected.

"It is unconscionable that the very defenders of our freedom could be denied a voice in the election of their own commander-in-chief," said Rep. Michael Bilirakis, R-Tarpon Springs. "These brave men and women fight for us, and now we must fight for them."

Including the rejected overseas ballots would be a victory for Bush, because he would be expected to win most of the votes from the military personnel. He already has won 1,380 votes from overseas ballots compared to 750 to Gore.

While adding overseas military votes would help Bush, Gore supporters have backpedaled in the wake of the controversy. State Attorney General Bob Butterworth, Gore's state chairman, has said he thought those ballots should be counted even if there are no postmarks.

Pasco officials said the postmark was not an issue there. All 137 overseas ballots received by Nov. 7 were approved. Over the next 10 days, 99 more ballots were approved and 28 were rejected. Elections officials said most of the 28 rejected were tossed out due to improper voter registration.

In Hillsborough, 75 of 135 overseas ballots were rejected after Democrats raised concerns about postmarks or signature problems. A lawsuit similar to Bush's on the overseas ballots also was filed in Hillsborough Circuit Court by two voters.

Stern, the constitutional law professor, is more intrigued by still another court challenge in heavily Republican Seminole County. A circuit judge there will hold a hearing Monday on whether 15,000 absentee ballots should be thrown out because the county elections supervisor allowed Republicans to correct Republican voters' incomplete absentee-ballot applications that had been rejected in the weeks before the election.

Bush won 10,006 absentee votes in Seminole, compared with 5,209 for Gore.

Stern said the dispute also could wind up in federal court where issues of equal protection could be raised.

"I would expect the Democrats to draw an analogy to a county offering free transportation on election day to Republican voters," he said, "but not to Democrats or independent voters."

- Times staff writers Alisa Ulferts and the Associated Press contributed to this report.

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