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DECISION 2000 / AMERICA WAITS

Florida Justices May Have Final Word on Ballots

November 20, 2000|HENRY WEINSTEIN and DAVID G. SAVAGE | TIMES STAFF WRITERS

For the Florida Supreme Court, six of whose seven justices are Democrats, today's televised hearing in Palm Beach County Canvassing Board vs. Katherine Harris will provide a crucial opportunity to gain the one thing that no one in the ballot counting process appears to have so far--broadly accepted legitimacy as a neutral referee.

If the court succeeds in that task, today's hearing could provide a first step out of the partisan swamp of the Florida vote count. It will also almost certainly establish the case as the most significant ever to come before the court in its 155-year history.

The justices have ruled on many important cases--including dozens where they have decided whether a convicted murderer lives or dies. But never before have they, or any state court, been asked to resolve a dispute in which so many people across the country believe they have a stake.

Depending on how the court's ruling is written, it could be the last legal word on the balloting question. The U.S. Supreme Court repeatedly has said that it has no authority to alter a state Supreme Court's interpretation of its own state's laws. Whichever side loses today's case will be able to appeal further only if they can convince the U.S. Supreme Court that some federal law or constitutional provision has been violated by Florida's ballot laws--a difficult task.

Former American Bar Assn. President Chesterfield Smith of Miami, who has argued more than 100 cases before the court since 1948, said, "This is not an ideological court. They will try to decide this case based on the law," Smith said.

What the law requires, of course, is hotly contested. In their briefs to the court, the contending parties have mostly reprised now-familiar arguments.

Florida Secretary of State Katherine Harris is asking the court to allow her to exclude all hand-recounted ballots.

Vice President Al Gore's lawyers are asking that recounts underway in three primarily Democratic South Florida counties be allowed to continue and to count in the final tally.

Texas Gov. George W. Bush's lawyers are backing Harris, as is the Florida Republican Party, each in a separate brief.

The one new, albeit tentative, note came in a brief filed Sunday by lawyers for Florida's state Republican chairman, Matt Butler. The brief suggested for the first time that if recounts are to be allowed, the entire state should be recanvassed.

That "would be much fairer to the whole state" than allowing "geographically limited changes," the brief states.

Because recounts almost always increase the number of votes deemed valid, a recount in Democratic counties is likely to aid Gore. Republicans say that that is unfair, although Democrats note that the Bush camp chose not to ask for recounts in places Bush won heavily.

Last week, Gore suggested a statewide recount, but it was rejected out of hand by Bush. On Sunday, one of Gore's principal attorneys said he found it curious that the Republicans had raised this issue. But a lawyer for the Bush campaign, speaking on condition of anonymity, said the Bush team had no intention of pushing for such a process.

The justices have three distinct questions before them.

Were the county officials authorized under state law to undertake a hand recount of all their votes? Must the state accept those recounted votes, even if they are submitted well after the seven-day deadline? Should the court set standards for what constitutes a valid ballot--something Gore has asked for.

Some legal experts cautioned that the high court may not seek to answer all the questions at once.

"They may take the least activist approach and just say the manual recounts are legal," said Jon I. Mills, dean of the University of Florida's law school.

A narrow decision would give the counties more time to finish their hand counts. Then, the court could take up the question of whether those votes must be included in the state totals, he said.

This approach would allow Gore more time to whittle away at Bush's lead. For Bush, it would permit further opportunities to challenge the hand recounts as flawed and unfair, something his aides have been claiming vocally.

The issue of what constitutes a valid ballot--whether, for example, a so-called dimpled chad is proof that a voter intended to cast a vote for a candidate--was raised in the Democrats' final brief Sunday. So far, Broward County has taken a more expansive view of what constitutes a valid ballot than has Palm Beach County. As a result, Gore has picked up more votes in Broward.

Legal observers expressed doubts that the court would immediately wade into that dispute given the lack of any detailed evidence presented it so far.

"I would be very surprised if the Florida Supreme Court came out with rigid guidelines on how many corners of a chad have to be detached from the ballot in order to be counted," said Stanford University law professor Pamela Karlan, a voting rights expert.

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