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Court battles continue to escalate

Legal wrangle puts middle-ground solution, or any outcome, further away.

By Warren Richey Staff writer of The Christian Science Monitor / November 15, 2000



MIAMI

Baseball has extra innings. Football has sudden-death overtime. Soccer has penalty kicks.

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In contrast, the presidential election in Florida has no clear rules governing how to declare a winner with finality and fairness.

Eight days after the election, the contest to win the White House is degenerating into the legal equivalent of a street brawl.

And the first casualty, analysts say, is the kind of fair process that might have enabled the losing candidates' supporters to embrace the winner as president.

Instead, the legal and political wrangling now under way may virtually guarantee that roughly half the voters in the country will view the outcome with suspicion.

Some may even believe the election was stolen.

"If Gore loses Florida, I don't see any way that Gore supporters are going to say this was fair," says Terence Anderson, a law professor at the University of Miami. "If the vote turns on a re-vote in Palm Beach County [with Gore winning]," he adds, "I don't see any way that the Bush supporters are going to see the process as fair."

One suggested middle-ground solution, conducting hand recounts in all of Florida's 67 counties, rather than just in four heavily Democratic counties, has been labeled "crazy" by the Bush camp.

In a second proposal, the Republicans suggested they would accept manual recounts completed by 5 p.m. yesterday, and, in return, they would drop all lawsuits. Gore officials called the offer "ridiculous."

Winning, over statesmanship

Rather than seeking a middle-ground agreement on terms that might bring fairness and finality to the Florida election process, both sides are pressing political and legal advantages against each other.

For example, Vice President Gore has signaled his intent to support litigation to overturn the election results in Palm Beach County.

During comments outside the White House on Monday, Mr. Gore said he wouldn't want to "win the presidency by a few votes cast in error or misinterpreted or not counted, and I don't think Governor Bush does either."

Among the big-gun lawyers seeking to overturn the county-wide vote are Harvard Law Professor Alan Dershowitz. Legal analysts are split on the chances of such a suit, but all acknowledge that Florida judges have wide discretion in such cases.

In addition, the Palm Beach case would likely rise quickly to the Florida Supreme Court, whose justices were all appointed by Democratic governors.

On the other side, Republicans are working hard to keep the pool of Florida voters limited to those who were counted during a machine recount last week, and to any overseas absentee ballots due by Friday.

If the pool of voters can be kept to this level (and the Palm Beach suit is dismissed), many analysts believe Bush will win.

Bush has refused to comment on the situation in Florida. But James Baker, the former secretary of State and Bush troubleshooter, has attacked Democratic efforts to find additional votes through the manual recount process. The Republicans sued in federal court, but a federal judge refused on Monday to order the Democrats to stop recounting.

Meanwhile Florida's Republican secretary of State, Katherine Harris, instructed all state counties to deliver their election results to her for certification by 5 p.m. yesterday.

The deadline infuriated Democrats, who went to court in Tallahassee, arguing that they needed more time to finish their recounts. The issue seemed certain to rise quickly to the Florida Supreme Court.

Analysts say such aggressive tactics by both sides have nothing to do with fairness and everything to do with winning.

"We jump to the courts when we fail politically. We hate to lose," says Benjamin Barber of the Walt Whitman Center for the Study of Culture and Politics of Democracy at Rutgers University in New Jersey. To most people, he says, "fairness means 'I win.' "

The Republicans had hoped to impose the terms of a final end-game in the presidential election in Florida.

Seeking a revote

But the Democrats want nothing of it. They know that they have a fairly good chance of prevailing in a legal challenge in state court to force a revote in Palm Beach County. That would set up a kind of mini-presidential election in a Democratic stronghold that would virtually guarantee a Gore victory, according to many analysts.

Bob Jarvis, a law professor at Nova Southeastern University in Fort Lauderdale says there is a downside to the no-holds-barred fight in Florida. "It is a pretty tarnished presidency," he says.

"We are moving toward an inevitable conclusion in which at some point a judge is going to rule and you are either going to get a Palm Beach revote or not," Mr. Jarvis says. "If the Palm Beach judge says it will be a revote, and there is a revote, Gore wins."

On the other hand, if the ballot deadline is upheld by the Florida courts, the results could be quickly certified and Bush declared the winner this week.

But even that move wouldn't prevent pro-Gore lawyers from pushing their suit for a revote in Palm Beach County. And that's not likely to win many friends for Gore in the Republican camp.

"I don't think in any case that you are going to have a situation where there is going to be general satisfaction [with the outcome]," says Joseph Little, a law professor at the University of Florida. "The closeness of the race makes that virtually impossible."

(c) Copyright 2000. The Christian Science Publishing Society