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DECISION 2000 / AMERICA WAITS

Court Takes Up Call for Palm Beach Revote

Law: Democrats say votes were thrown out because of 'butterfly ballots' and the judge can call a new election. Bush attorney raises a jurisdictional issue.

November 18, 2000|SCOTT GOLD | TIMES STAFF WRITER

WEST PALM BEACH, Fla. — Lawyers and political leaders who gathered Friday in a Palm Beach County Circuit courtroom delved into an argument buried by the debate over South Florida recounts: Whether the state's Constitution allows a second election if the first was botched beyond repair.

The constitutional argument will not likely have an immediate effect, but it may ultimately lead to a new judicial ruling that could outlast both Al Gore and George W. Bush--a legacy lawyers for both sides say could become as important as the presidential contest.

"Who wins the election is certainly the concern of the country right now. But the process by which we conduct those elections is equally important," said Benedict P. Kuehne, a Miami attorney who represents the Florida Democratic Party and argued its case in court Friday. "That's why these issues are getting vetted about--because no one wants to take a position that is not in the best interest of the election process."

Decision Likely to Be Appealed

Attorneys for the Democrats--who have argued that more than 19,000 Palm Beach County votes were disqualified because of the confusing "butterfly ballots" and other election day snafus--said that Florida law gives Circuit Court Judge Jorge Labarga the right to order a new election in the county.

Whatever Labarga's decision, it will likely be appealed to a higher court. And because there is little legal precedent on the matter, his decision may plow new ground in determining whether new elections can be held.

The case before Labarga opened the door to rarely asked questions that, so far, have no answer: What if a major earthquake shook San Francisco on election day? Would San Franciscans lose their right to vote because they couldn't get to the polls? Surely they would not, Democrats argued.

They add that the Palm Beach County ballot represents something of a political earthquake that should prompt a second election.

"When we're in there [Labarga's courtroom], everyone is focused on their case," said Erwin Chemerinsky, a USC professor of law and constitutional scholar who is in West Palm Beach to assist attorneys in reading the fine print of the Constitution. "But at the same time, everyone knows it's a historic moment."

The debate took place across town from the government building where the county's pivotal hand count was underway for a second day.

Meanwhile, from impoverished Haitian Americans to a Palm Beach millionaire who says he comforted a weeping senior who had mistakenly voted for Reform Party candidate Pat Buchanan, more than two dozen county voters have filed lawsuits seeking not just a recount but a new election.

Judge OKs Arguments on Constitutional Issue

Labarga has indicated that he will not hear arguments on those demands for at least a week. However, he agreed Friday to hear arguments on a preliminary, and more fundamental, question: whether the state Constitution even allows for another election.

The law is murky, primarily because it has rarely been tested. Attorneys hauled in dozens of cases to make their case--so many citations that Labarga told them to "put a lid on it."

Democrats argued that they do not have to prove that the ballot was intentionally fraudulent, merely that it led to results that did not accurately reflect the will of the voters.

"Respectfully, judge, the buck stops here," said Gary Farmer, an attorney representing voters who are demanding a second election. "You have been given the authority."

But Barry Richard, a Bush attorney, argued that the judicial branch of the government is supposed to have a "limited role in elections." Instead, he said that state law dictates that if the voters cannot make up their minds, the Florida Legislature must meet to decide how to cast the state's 25 electoral votes.

"The law is crystal clear," Richard said. "There is not a whisper . . . that any court has any voice in solving the problem."

Labarga said he would rule on the constitutional issue in coming days, probably Monday. He seemed skeptical that local judges could order new elections but seemed conflicted.

"My parents brought me here so I could have that right [to vote]," said the judge, who in the 1960s immigrated to the United States from Cuba, to a Democratic attorney. "That right, to me, is as precious as life itself. If I rule against your client, it will be the most difficult decision of my life. . . . But we also have this document called the U.S. Constitution."

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