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DECISION 2000 / AMERICA WAITS

Vote Fight Hits the Courts

Florida Sets Deadline as GOP Suit to Stop Recount Is Rejected

Campaigns' Legal Tussle Is Just Beginning

November 14, 2000|HENRY WEINSTEIN and DAVID SAVAGE | TIMES STAFF WRITERS

Vice President Al Gore's victory in Miami federal court Monday was only the first step in a rapidly unfolding legal battle in the war for Florida's 25 electoral votes, with the next major ruling expected today.

With U.S. District Judge Donald M. Middlebrooks' refusal to block a hand recount of ballots in several Florida counties, attention shifts to state court in Tallahassee. Circuit Judge Terry P. Lewis is expected to rule on whether Florida Secretary of State Katherine Harris, a Republican, can enforce today's 5 p.m. EST deadline on certifying election results. The vice president's legal team joined lawyers for Florida counties in asking for an injunction to block the deadline.

The battle over the deadline involves two Florida laws that appear to conflict. Depending on how Lewis reconciles them, the legal teams for both Gore and Texas Gov. George W. Bush will face critical decisions on whether to file appeals that could prolong the litigation or forge a compromise that might bring a conclusion to one of the closest presidential elections in the nation's history.

Bush could appeal his loss in federal court to the U.S. 11th Circuit Court of Appeals in Atlanta or to the U.S. Supreme Court.

Whoever loses in Lewis' court could appeal to a three-judge Florida appellate court or to the seven-member Florida Supreme Court.

Missing Counties Could Be Ignored

The first of the two conflicting Florida laws is Section 102.111 of the state's Election Code. It provides that county returns "must be filed by 5 p.m. on the seventh day following . . . the general election," which would be this evening. If "returns are not received" by the deadline, "all missing counties shall be ignored," the law says.

Although the law says the county returns must be filed by that deadline, it does not say that state officials must certify the results at that time. Instead, the law says only that the results "may be certified" on the seventh day.

The second statutory provision in question commands county officials to ensure that all ballots are counted and says that if any ballot "cannot be counted properly by automatic tabulating equipment, the ballot shall be counted manually."

Florida law does contain a section, enacted after Hurricane Andrew in 1990, allowing an extension of the deadline in the event of an emergency.

Some legal experts said they thought the current circumstances were not the sort of emergency the statute was intended to cover.

But at a hearing Monday before Judge Lewis, Dexter Douglass, former general counsel to the late Gov. Lawton Chiles, who now represents Gore, disagreed.

"Let me tell you, this is not only a hurricane," Douglass said, "this is a bark-splitting, north Florida cyclone with a hurricane tail on the end of it. That's what this is. It's one that rips across this entire nation.

"The issue is, does Florida stand up for an honest vote for people in other countries to point to and say that the United States has honest elections?" Douglass said.

But Debby Kearney, a lawyer for Harris, said the Florida Legislature had imposed the deadline to ensure the "finality" of elections. Once the deadline is extended, "where does it end?" she asked.

Consequences Unpredictable

The presidential election could hang on how the clash between the two statutes is resolved.

"This is the first time these two provisions have collided this way," said University of Miami law professor Terence J. Anderson.

Harris pointed to the first section of the law on Monday, saying that the statute gives her no choice but to enforce the deadline. That characterization was supported by Bob Crawford, another Florida election official--who is also a Bush supporter--and by Bush campaign leaders.

Former U.S. Secretary of State Warren Christopher, who is leading Gore's effort in Florida, immediately challenged that decision, as did some legal scholars. Christopher called it "arbitrary and unreasonable."

The Democrats argue, in the words of Harvard law professor Laurence Tribe, that the two Florida statutes are on a "collision course." The constitutional principle that every person's vote should be counted means that the collision should be resolved by extending the deadline to allow the recounts to proceed, said Tribe, who represented Gore in court on Monday.

Several legal experts in Florida who are not involved in the litigation said they think the Democrats have the edge.

"I think a judge is going to look at this and say the state may not certify the result until the recounts are completed," Anderson said. "It doesn't make sense to say the secretary of state can just cut off the vote-counting."

Joseph Little, a University of Florida constitutional law professor, said he thought the Florida Supreme Court would be receptive to the Democrats' argument that there is no urgent need to end recounts today, given that the electoral college does not vote until Dec. 18.

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