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It all comes into focus as election glare dims

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By HOWARD TROXLER

© St. Petersburg Times, published December 15, 2000


Today's morning-after medicine, with pills hard to swallow:

(1) Katherine Harris was not entirely making it up. It was widely said of Florida's secretary of state that she had "set" or "imposed" the initial cutoff for vote-counting of 5 p.m. on Nov. 14, like the Red Queen.

But it was not her deadline. The deadline is clearly written in state law. Different parts of that law say she "shall" or she "may" throw out late results. If one law says you MUST and one says you CAN, it is not unreasonable to go with "must."

When Harris' decision was challenged, Leon Circuit Judge Terry Lewis -- a Democratic appointee -- told Harris that she had indeed had the power, if she acted reasonably. So Harris set out a list of criteria and decided, based on those criteria, not to accept any more late votes. The Democratic appointee upheld Harris' decision.

(2) The Florida Supreme Court was not entirely making it up. The state's highest court then also faced this dilemma of "shall" versus "may." The court also had to obey the state Constitution, and to be mindful of precedent.

Judges have to juggle conflicting laws every day. They use a standard approach known as "statutory construction" that even a law student understands. Which law is more specific? Which law is older? And so on.

So on Nov. 21, given all these circumstances, the state court ordered a longer period for finishing the recounts. Even the court admitted it had "fashioned" this remedy. It was creative, but not radical. In a different case nobody would have blinked twice.

The court's Dec. 8 ruling to resume a statewide recount, dramatic as it was, also had a basis in law. The trial judge, N. Sanders Sauls, had set an improperly high standard for hearing an election contest, the high court ruled, and did not view all the evidence.

Remember, that second ruling was 4-3. Are we required to declare the three wise, and the four evil?

(3) The U.S. Supreme Court was not entirely making it up. Now let's reverse our Democrat and Republican shoes because the same principle goes for the U.S. Supremes. The federal court had a basis for its finding. A last-minute recount, done county by county, with no specific uniform standard, was madness. The presidency would be decided by which county counted hanging chad, which used dimpled, and so on.

Seven justices of the U.S. Supreme Court agreed that this open-ended process would violate the equal protection guarantee of the U.S. Constitution. Five of them further agreed that the Dec. 12 "safe harbor" deadline for choosing Florida's elections had arrived, and that the Legislature's intent was to meet it.

Do we believe that justices Thomas, Scalia and Rehnquist are politically conservative? Sure. Do they go home at night and grumble about taxes, swear at Dan Rather on TV and look up admiringly at their portrait of Calvin Coolidge? Maybe so. Maybe Ruth Bader Ginsburg goes home and wears a hammer-and-sickle T-shirt and listens to Woody Guthrie songs, too. But who cares?

(4) The Florida Legislature was not entirely making it up, although if anybody came close . . . There was no question under federal law that if Florida's electors were not settled by Dec. 12, then our choice would not be "conclusive" in Congress. We had already certified a slate of electors, but with all the lawsuits flying around, who knew what might happen?

So the Legislature was not unreasonble in worrying whether Florida would have electors. The words of John McKay, president of the Senate, were limited and cautious in this regard, although over in the House they were a little wild-eyed.

The acid test, of course, would have been whether the Legislature intended to name Bush electors even if Gore had won a recount. (I say: House yes, Senate maybe.) Lucky for us all, the question did not have to be answered. Crisis over.

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