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DECISION 2000 / AMERICA WAITS

Justices Consider Palm Beach Case

Law: Florida high court weighs appeal of circuit judge's ruling by voters. They seek a new election because of confusion over the 'butterfly' ballot.

November 29, 2000|MICHAEL FINNEGAN | TIMES STAFF WRITER

TALLAHASSEE, Fla. — A group of voters on Tuesday urged the Florida Supreme Court to overturn a lower court's order denying their request for a second presidential election in Palm Beach County.

The voters charged in court papers that more than 20,000 voters "were disenfranchised due to the confusing, deceptive and illegal 'butterfly' ballot" used by Palm Beach in the Nov. 7 election.

But lawyers for Texas Gov. George W. Bush, the Republican presidential candidate, called on the state Supreme Court to uphold the Nov. 20 ruling by Circuit Judge Jorge Labarga, who found he had no authority under the U.S. Constitution to order a new election.

"Certainly, no provision is made in Florida or federal law which would allow for a revote or new election," Bush attorney Barry Richard told the court in a brief filed Tuesday.

The state Supreme Court has not decided whether to hear the appeal by Delray Beach, Fla., chiropractor Andre Fladell and other Palm Beach County voters who say the butterfly ballot was illegal.

A court spokesman, Craig Waters, said it was unclear how long it would take the justices to decide whether to take the case.

The court agreed on Tuesday to accept papers up to 4 p.m. today on whether it should also hear a similar case filed by Julius and Lilian Katz and two other Palm Beach County couples who supported Vice President Al Gore, the Democratic nominee.

If the high court takes the cases, it would add to the uncertainty of the outcome of Florida's presidential election.

Gore's lawyers have not cited the format of the Palm Beach ballot as an issue in his lawsuit contesting Florida's certification of Bush's victory by a margin of 537 votes out of some 6 million cast.

The Palm Beach ballot listed two columns of presidential candidates divided by a row of punch holes. Many Gore supporters have said the format led them to vote mistakenly for Reform Party candidate Pat Buchanan, or to nullify their ballots by voting inadvertently for two candidates.

The Fladell suit says the ballot was illegal on two counts. First, the holes were to the left of some of the presidential candidates, and state law says ballots should be printed so that voters mark the space to the right of their preferred candidate.

Second, it says Buchanan's name, listed in the right-hand column, was the second highest on the ballot, a spot that, by law, belonged to the Democratic candidate.

Florida law says the presidential candidates must be listed on the ballot in the order of the parties whose candidates won the highest number of votes in the last gubernatorial election, meaning Republican first and Democrat second.

Bush's name was just above Gore's in the left-hand column of the Palm Beach ballot. But the punch hole for Buchanan was just above the one for Gore and below the one for Bush.

"As a result of the misleading and confusing format of this unique and unprecedented ballot, massive voter confusion occurred in Palm Beach County, leading to votes for Reform Party candidate Pat Buchanan and over-votes that defy statistical odds," Fladell's lawyers wrote in their Supreme Court brief.

As an alternative to a new election in Palm Beach County, Fladell's lawyers are seeking an adjustment of the results based on examination of the countywide returns.

They cited previous cases involving "simple calculations of ratios based on total vote" but said courts also "have used more sophisticated statistical techniques to discern what adjustment to the vote would be appropriate."

Labarga did not address that possibility in his ruling. The lower court judge also did not weigh any evidence on whether the Palm Beach ballot was legal, saying he didn't need to do so once he decided he had no power to order a new election.

In the brief for Bush, Richard argued that Labarga was correct in finding that the Constitution and federal law require the presidential election to be held everywhere in the country on the same day. Richard also argued that the case was improperly filed in Palm Beach County when, under Florida law, it should have been filed in Leon County Circuit Court in Tallahassee.

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