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DECISION 2000 / AMERICA WAITS

Ballot Retabulation Issue Could Soon Be Back Before Judges

Law: Republicans to ask federal appeals court to block further recounts. Two Florida counties request guidance from their state's highest court.

November 15, 2000|HENRY WEINSTEIN and DAVID G. SAVAGE | TIMES STAFF WRITERS

The net result of the first legal battles over the presidential vote has been to throw the struggle for Florida--at least for now--back to the political arena.

But Republicans served notice Tuesday evening that they will try to get back into court rapidly--declaring that they will ask a federal appeals court in Atlanta to hold an emergency hearing on a request to block further recounting of Florida's votes. How quickly the appeals court might consider the case was not immediately known.

The Florida Supreme Court may also soon weigh in. Two Florida counties that have been recounting ballots by hand have asked the state high court for guidance. Lawyers say the justices could rule as early as today.

On Tuesday, Florida Circuit Court judge Terry P. Lewis in Tallahassee ruled that counties could submit hand recounts of ballots to Katherine Harris, the state's Republican secretary of state. Harris, he ruled, has discretion about whether to accept recounts after Tuesday's 5 p.m. deadline.

That decision put Harris, a vocal supporter of the Republican presidential candidate, Texas Gov. George W. Bush, and her two colleagues on the state elections board, in a difficult position, legal and political experts said.

Decision Left in 'Political Realm'

"If someone sends her new returns in three days, is she not going to accept them?" asked Jon Mills, the dean of the University of Florida's Law School and a former Democratic legislator. "That might be an abuse of discretion. If Gore has the votes to win by Friday, what would be the country's reaction if she refused to accept them?"

"I think [Judge Lewis] struck just the right balance," said University of Miami law professor Terence J. Anderson. "Neither party can claim a clear victory, and he has left the matter in the political realm."

On Tuesday night, Harris said that any counties that are conducting recounts will have to submit reasons by no later than 2 p.m. EST today explaining why they should be able to submit amended results.

Harris nominally won when Lewis upheld the validity of Tuesday's deadline, and the decision initially was hailed by Bush aides. But as lawyers studied the judge's ruling, the Bush campaign showed its discomfort with the result by the quick decision to return to federal court. They were seeking review of their loss on Monday, when a federal judge in Miami refused to block hand recounts.

The legal maneuvers came on a day filled with court decisions and threats of further litigation.

Responding to requests from officials in Palm Beach and Broward counties, state court judges said that election officials could conduct manual recounts. In essence, the decisions overruled an advisory opinion issued by Clay Roberts, a deputy to Harris who is director of the Florida division of elections.

Attorney General, State Courts Agree

Roberts on Tuesday morning had issued a statement saying that Palm Beach County had no authority to conduct further manual recounts "unless the discrepancy between the number of votes determined by the tabulation system and by the manual recount of four precincts is caused by incorrect election parameters or software errors."

Florida Atty. Gen. Robert A. Butterworth, a Democrat who served as Vice President Al Gore's campaign chairman in the state, immediately issued a sharply conflicting opinion, maintaining that "the [county] canvassing board has the authority to determine that the voter's intention is clearly expressed."

By later in the day, the state courts had agreed with Butterworth. Palm Beach officials promptly said they would commence the full hand recount at 7 a.m. EST today but also asked the state Supreme Court for further clarification. Officials in Volusia County, who have completed their recount, have also asked the high court to rule on counting procedures. Broward County officials said they would meet today to consider a further recount. That reversed a decision they had made Monday night to not do further counts.

Leading up to Tuesday's decisions, Harris, backed by the Bush campaign, had argued that state law required that all vote counting "must end" by 5 p.m. on the seventh day after the election. The Gore campaign and the counties that plan to recount their ballots disagreed, saying the law that authorized a manual recount would be meaningless if counties were not given sufficient time to do it.

The judge, Lewis, adopted a middle-ground position. The "plain meaning" of the law makes clear the counties "must certify and file" their election returns by the Tuesday deadline, he wrote in a brief ruling. For this reason, he rejected the Gore campaign's request to void the deadline.

But he faulted Harris for insisting that the deadline is final.

"I disagree . . . that the secretary is required to ignore any late-filed returns absent an act of God," such as a hurricane, he wrote.

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