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DECISION 2000 / AMERICA WAITS | NEWS ANALYSIS

Harris' Hand-Count Ruling Sets Up Decisive Legal Fight

November 16, 2000|DAVID G. SAVAGE and HENRY WEINSTEIN | TIMES STAFF WRITERS

The question of who the next president of the United States will be may hang on a single legal question: Just how much discretion does Florida Secretary of State Katherine Harris have to reject hand-counted ballots?

Lawyers for the Al Gore and George W. Bush campaigns plan to take that issue to several courts today. Predictably, however, they disagree on which court is best suited to resolve the matter.

Wednesday night, after Harris announced that she would not tally any further hand-counted ballots, Gore's lawyers said they would go to state court in Tallahassee today, contending that Harris had abused her power.

Earlier in the day, the Gore campaign asked the Florida Supreme Court to "take charge" and bring legal clarity to the welter of issues surrounding the recount controversy.

The Gore lawyers asked the state judges to resolve three questions of Florida election law. Are hand recounts permitted? What are the standards for determining that a valid vote has been cast? And is there an enforceable deadline?

"We think [this] offers the best hope for moving the count here in Florida to a fair and speedy outcome," said Warren Christopher, the venerable Los Angeles lawyer and former secretary of State who heads Vice President Gore's team.

Intervention by Florida's courts could help Gore in two ways.

First, those courts could prevent Harris, Florida's top election official, from declaring Texas Gov. Bush the winner Saturday.

Her office said it plans to announce who won the Florida race--and with it, the White House--shortly after Friday's midnight deadline for the receipt of overseas absentee ballots.

On Wednesday afternoon, the state Supreme Court refused to block hand counts, and it also could clear the way for full hand recounts in Palm Beach and Broward counties, the Democratic strongholds where Gore is expected to gain votes.

In the wake of Harris' announcement Wednesday night closing the count except for the overseas ballots, Gore's attorneys said they would ask Leon County Circuit Court Judge Terry P. Lewis to rule that she had violated an order he issued Tuesday. That order said that Harris could not act "arbitrarily" in considering whether to accept hand-counted ballots.

Generally, courts in Florida--as elsewhere--defer to government officials when reviewing their decisions, asking only whether there was a "rational basis" for the action.

Harris said she spent considerable time developing criteria for whether to accept hand-counted votes and explained her decisions in letters to the counties involved.

For example, she told Palm Beach County officials they had provided insufficient reasons to warrant a recount. She noted that there was no fraud, no evidence that the county had been unable to comply with its election duties due to an act of God or other extenuating circumstances beyond its control. She concluded that the county's allegation that a recount "could affect the outcome of the election" was not "enough to justify ignoring the statutory deadline."

In court today, Gore's attorneys are expected to contend that Harris abused her discretion, acting arbitrarily in refusing to accept hand counts. Convincing a court that a government official has abused her discretion is not easy.

Stanford University law professor Pamela Karlan said Gore's attorneys also may contend that Harris' action should be subjected to a more stringent review because her actions have the consequence of keeping votes from being counted and thereby deny voters 'a fundamental right.' "

The issue could soon reach the Florida Supreme Court, which at first glance looks to be a friendly forum for the Democrats. Six of its seven justices were registered Democrats when they were appointed.

Moreover, the court has taken a surprisingly liberal stand in past rulings on election law. It has insisted, for example, that voting procedures and technicalities should not be allowed to "thwart the will of the voters."

If it follows its past rulings, the state Supreme Court would appear inclined to allow further hand recounts, despite the state's now-expired deadline for certification of election results.

Not surprisingly, the Bush team has balked at taking its claims directly to the state Supreme Court and has instead moved toward the far more conservative U.S. 11th Circuit Court of Appeals in Atlanta.

Seven of that court's 12 judges are Republicans appointed by Presidents Reagan and Bush, and the appeals court is known for strongly conservative rulings.

Last year, for example, it upheld student-led prayers at an Alabama high school. The U.S. Supreme Court took up a similar case from Texas and ruled in June that school-sponsored prayers violate the Constitution's separation-of-church-and-state principle. In a brief order, the justices told the 11th Circuit to reconsider its decision from Alabama.

Nonetheless, the Atlanta-based appeals court refused to back down and last month again endorsed student-led school prayers.

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