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DECISION 2000 / AMERICA WAITS

Justices Focus on the 'How' of Recounts

Law: They hint at letting manual tallies continue but don't tip hand as to which ballots will be included.

November 21, 2000|DAVID G. SAVAGE and HENRY WEINSTEIN | TIMES STAFF WRITERS

WASHINGTON — The justices of the Florida Supreme Court struggled Monday to find a practical way to complete the manual recount of the state's ballots without jeopardizing its electoral votes.

The justices did not fully tip their hands on how they will rule, or when. But while their questions and comments pressed both sides, the justices also offered several strong hints about their concerns.

The court's members seemed focused much less on whether than on how to include the results from the manual recounts that Texas Gov. George W. Bush has fought fiercely to exclude from the official vote total here.

"They seemed to be assuming the recount would occur," says David Cardwell, a former Florida election commissioner.

While that would seem to presage a defeat for Bush, the justices showed little inclination to dive into the issue of exactly which ballots should be included in the count. That could herald an eventual loss for Vice President Al Gore.

In the recounts so far, Gore has not been making the gains his Democratic supporters had expected--especially in Palm Beach County, which is a critical arena. It is becoming increasingly clear that the vice president may not be able to overcome Bush's official 930-vote lead in the state unless the recounts include ballots that county election boards are currently excluding. In particular, Gore's supporters would like the election boards to include ballots that have only partially punched or, dimpled, chads.

Gore's lawyers urged the court to set standards by which the county election boards supervising the counts should determine a voter's intent. But the justices seemed inclined to leave that issue to the boards themselves, or to lower courts.

Local Autonomy Argument Weighed

Justice Harry Lee Anstead, for example, suggested at one point that the decision by Florida Secretary of State Katherine Harris not to accept the results of manual recounts had the "net effect" of overruling the legal right of local officials to determine the conduct of the balloting.

That point would be a major argument for allowing the hand counts to continue, Cardwell and other legal observers noted. But, they said, the same logic of protecting local autonomy would militate against the court's imposing its judgment on which ballots the local officials should count.

The issue of exactly which ballots to count "is a horrible problem for them," said UCLA law professor Daniel Lowenstein, an election law expert. "There is no clear legal principle on this. The law says nothing about it in Florida" other than that each county canvassing board is supposed to examine ballots and attempt to discern the will of the voter.

"These are not the most coherent statutes in the world," said Lowenstein.

Bush's side, of course, worries that Gore could gain more as the recounts continue, and his lawyers have been anxious to have them stopped.

Perhaps anticipating that the high court was unlikely to grant that request, Bush's lawyer, Michael Carvin, at one point offered a thinly veiled suggestion that the Republicans might seek to appeal further--to the U.S. Supreme Court.

The law, he warned the justices, "makes it clear that the federal courts--federal law will not allow this court or the Florida Legislature to change the rules of the election after the election has taken place."

Unlike the many lawyers, commentators and politicians who have trumpeted the cause of either of the two presidential contenders, the seven justices avoided taking sides in the larger political battle. Instead, they pressed the competing lawyers to explain their view of the Florida election code.

They often seemed unsatisfied with the answers.

The get-down-to-business tone was set in the opening moments. When one lawyer from the Democratic side spoke grandly of the right to vote as the "most cherished right in our democracy," Chief Justice Charles T. Wells cut him off in mid-sentence and asked a nuts-and-bolts question--one he repeated in various forms several times during the argument--about how the deadlines set in federal law will affect the state's decision on picking its electors.

Wells, in particular, seemed very concerned about deadlines. But by contrast with Harris and her lawyers, who have stressed the Nov. 14 deadline in the law, the cutoff date that he focused on was the practical deadline of how long the recounts could go while still allowing the state to choose its 25 electors by Dec. 12.

"What's the outside date that we're looking at which puts Florida's votes in jeopardy?" Wells asked.

The Democrats' lawyers did not offer much help, except to say the recounts in Palm Beach and Miami-Dade counties should not take much longer and that Harris should not need a lot of time to certify the election results.

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