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DECISION 2000 / AMERICA WAITS | NEWS ANALYSIS

Ruling Portends Long Judicial Trek to Finish

Law: An end to contested race now isn't in the cards for Saturday and will likely be shaped in the courts.

November 17, 2000|DAVID G. SAVAGE and HENRY WEINSTEIN | TIMES STAFF WRITERS

WASHINGTON — The Florida Supreme Court's ruling Thursday giving the go-ahead for counties to recount their ballots by hand signals that the battle over the presidential race is likely to stretch well beyond Saturday, when state officials had hoped to declare a winner.

The brief but unanimous order was far from definitive, but it clearly helped Vice President Al Gore--if only by keeping his campaign hopes alive for at least another day. A ruling by the court stopping the hand recounts would have essentially handed the victory to Texas Gov. George W. Bush. And if the four-sentence order is a hint of the state high court's intentions--a hope that Gore's supporters ardently clung to--it could be the legal boost he has been hoping for.

The decision freed officials in Palm Beach and Broward counties to conduct their planned recounts. Of equal importance, it set the stage for what may turn out to be the pivotal ruling of the postelection contest--a declaration expected today from a formerly obscure Circuit Court judge in Tallahassee on whether Florida Secretary of State Katherine Harris must include the hand-counted ballots in the state's vote totals.

Almost certainly, whichever side loses in Judge Terry P. Lewis' court today will ask the state Supreme Court to take up the issue again. But because Lewis is the judge who has been handling the dispute so far, his decision is apt to have considerable weight with the high court.

The justices labeled Thursday's pronouncement an "interim order." But their action took on broader significance for two reasons. First, the action marked the second time in two days the state's highest court had sided with lawyers for Democrats and had rebuffed Harris, a Republican and strong supporter of Bush.

Second was the timing, which was almost entirely at the high court's discretion. The order came less than 24 hours after Harris announced she had closed the door to accepting any further recounted votes. It also came just as Lewis, an appointee of the late Democratic Gov. Lawton Chiles, began considering the Gore campaign's plea to reverse Harris' ruling.

Gore's lawyers seized happily on the ruling, arguing that it foreshadowed how the justices would eventually rule on the question of whether recounted ballots should be included in the eventual tally of Florida's vote.

"I think it's very unlikely that the Florida Supreme Court would have directed that these recounts go forward if all they meant to do was to preserve these votes for history," said David Boies, who has been representing Gore in the vote-counting litigation.

Baker Cites 'Superb Example of . . . Spin'

Former Secretary of State James A. Baker III, representing Bush, disputed that, crediting his opponents with a "superb example of the art of legal spin."

"I don't think you can characterize this as a setback. What would have been a setback would have been if we lost something on the merits before the Florida Supreme Court," Baker said.

The state justices may not take up the ultimate question of which votes must be included until next week, after all votes are counted.

But there is no doubt that all week long, a clash between the state's courts and election chief has been building.

First, Harris announced she would strictly enforce the Tuesday deadline for submitting votes from across the state.

That day, Lewis issued a decision saying that while Harris had discretion to decide whether to accept returns after the deadline, she could not do so in an "arbitrary" manner.

Harris asked the state high court to halt all further counts. On Wednesday, the seven justices, six of whom were appointed by Democratic governors and the seventh named by both a Democratic and GOP governor, turned down her request in a brief order.

Then Harris' deputy advised county officials they must halt their recounts. On Wednesday evening, Harris went one step further and announced that she had reviewed the reasons offered by counties to justify their recounts and found them insufficient. No further returns would be accepted, she said.

Uncertain how to proceed, Palm Beach County officials halted their recounts and returned the issue to the state's highest court, seeking clear guidance.

Thursday's four-sentence order was simple. "At present, [the] binding legal authority" permits the hand recounts, the state justices said. "There is no legal impediment to the recounts continuing." The counties "are authorized to proceed with the manual recount."

By the time the remaining legal issues are sorted out, the Florida courts--as well as the nation--might face the disturbing prospect of two vote counts from the Sunshine State. One, based on the machine counts plus the remaining absentee ballots from overseas, would probably give Bush a slim victory. The other, including the manual recounts, could give Gore an edge.

Because of the back-and-forth dispute, the disputed counties have not yet manually tallied their ballots. The deadline for overseas absentee ballots comes tonight.

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