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All eyes shift to US high court

Should the hand recounts count? The justices hear today from both sides.

By Warren Richey Staff writer of The Christian Science Monitor / December 1, 2000


Six days after the Nov. 7 presidential election, a lawyer for the Palm Beach County Canvassing Board stood in a packed Miami courtroom.

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He assured a federal judge that the manual recount of ballots was a straightforward process.

Only ballots with clearly punctured chads would be counted as valid votes, said the lawyer, Bruce Rogow. He scoffed at claims that the board might engage in guesswork or partisan manipulation.

"If anything it is democracy at its best," he said. "It is fair."

Eight days later, the Florida Supreme Court issued a ruling that forced the canvassing board to jettison its puncture standard and instead decide if dimpled chads were votes.

Today, Mr. Rogow is back in court. But this time he is before the US Supreme Court, where the nine justices are considering whether Florida's presidential election system is "democracy at its best" or a violation of constitutional principles and federal law.

With the presidential election hanging in the balance, the justices must decide whether the Florida Supreme Court abused its power when it issued an order that forced Secretary of State Katherine Harris, a Republican, to accept hand-recount ballot totals after a state-mandated deadline had passed.

At stake is whether hand recounts will count in the election totals. If the court rules they don't, it would be a major blow to Al Gore. If the court rules they do, it would be a significant setback for George W. Bush.

Earlier, a state judge ruled that Ms. Harris had the discretion to reject hand-recount ballots submitted after the deadline.

In addition, the Florida high court's opinion, which is binding legal precedent in the state, made clear that canvassing boards could not rely on arbitrary criteria, such as Palm Beach's puncture standard, when assessing ballots as valid votes. In effect, the high court mandated that canvassing boards must consider dimples as possible votes.

The ruling, issued two weeks after the election, created a new universe of potential votes for Mr. Gore, since the only hand recounts under way in the state were in three heavily Democratic counties in south Florida.

By the time the court ruled, the deadline had already passed for Mr. Bush to seek similar hand recounts in Republican-dominated counties. Bush won a majority of votes in 51 of Florida's 67 counties. Bush supporters say the Florida court's ruling amounts to changing the rules in the middle of the game.

Gore backers say the seven justices of Florida's high court, all of whom were appointed by Democratic governors, were merely trying to clarify an ambiguous election statute. They say state judges should be free to interpret election laws without being second-guessed by federal courts.

Overall, the Florida high court justified its ruling as an effort to ensure the counting of every possible vote in counties where recounts were requested.

But the Florida court said nothing about the need to count dimpled ballots cast in 24 other counties that also rely on punch- card ballots. And the court didn't address whether counting dimpled ballots only in Democratic counties might disenfranchise voters whose dimpled ballots remain uncounted elsewhere.