What to watch on Florida court dockets

Statewide recount and disputed ballots will be pressed this week.

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There is one way that Americans may know with certainty who received the most votes in the presidential election on Nov. 7 in Florida - by holding a statewide manual recount.

But time for such a labor-intensive undertaking is slipping away.

More important, neither side in the winner-take-all litigation in Tallahassee is asking for a uniform recount to decide a winner.

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Instead, it is now clear that the legal team of Al Gore and the lawyers representing George W. Bush both believe they have a better shot at securing the White House through selective recounts and further litigation.

But the candidates and their lawyers aren't the only parties with a substantial interest in the outcome. Several lawsuits filed on behalf of voters are asking for a statewide manual recount.

Some seek a hand recount of all 6 million votes cast in the election - a huge undertaking - while others propose a recount of only the 180,000 ballots statewide that were rejected as either undervotes or overvotes.

One of those suits, filed by Naples resident Matt Butler, a Bush supporter, has reached the Florida Supreme Court, where the justices are asking that briefs be submitted today.

At issue: whether the Florida law that allows only candidates and political parties to request manual recounts violates Florida's Constitution by potentially diluting the votes of Floridians living in counties where recounts are not requested.

A statewide recount "would at least divine the will of the actual Florida electorate rather than an unrepresentative sample carefully chosen by Vice President Gore," the suit says in part.

The Florida Supreme Court case arises as the legal impasse over the election moves toward a final phase this week, with major developments expected on several fronts.

* Florida Circuit Judge N. Sanders Sauls is being asked to decide whether 14,000 disputed ballots in Palm Beach and Miami-Dade Counties should be recounted by hand, a move urged by the Gore lawyers.

* The US Supreme Court is expected to rule at any time on whether Florida's highest court overstepped its authority when it extended a deadline to permit late-filed hand recount tallies in Florida's presidential totals.

* Republican lawyers are scrambling to prepare for two state court trials on Wednesday in Tallahassee that might disqualify several thousand absentee ballot votes for Bush because of alleged ballot-application irregularities in Seminole and Martin Counties.

* Preparations continue for a possible move by Florida's Republican-dominated Legislature to designate its own slate of delegates to the Electoral College, in the event that election litigation isn't resolved by the Dec. 12 deadline.

The issue of a statewide recount isn't just before the state Supreme Court. It also arose over the weekend in the trial conducted by Judge Sauls.

"The court must consider the will of all the voters in Florida," lawyer Frank Myers told the judge.

Mr. Myers, who represents a group of voters from western Florida, likened selective Gore recounts in three heavily Democratic counties to the plot line in George Orwell's classic novel, "Animal Farm."

In the novel, a barnyard government is established where "all animals are equal, but some are more equal than others," he said.

"We ask that the court look at the votes statewide," Myers said. "We ask the court not to allow it to become 'All votes are equal, but some votes are more equal than others.' "

The argument is similar to those being made by Bush lawyers to Sauls, except the Bush legal team is seeking to have the judge rule that no further recounts should be permitted.

The Bush position on recounts is that selective recounts would be unfair and there isn't enough time to complete a statewide recount.

"Three predominantly Democratic counties out of 67 counties of Florida cannot determine which candidates prevailed," writes Barry Richard in his legal brief to Sauls. "Accordingly, to the extent that this court manually recounts any ballots at all, it must recount ballots from all other counties as well."

Mr. Richard concludes that there is not enough time for such a comprehensive recount.

The Gore lawyers don't want a statewide recount either, but for a different reason. They apparently believe there are more than enough potential Gore votes within the 14,000 disputed ballots to win the election.

"This is not a recount," says Mitchell Berger, a Gore lawyer in a legal brief to Sauls. "This is a contest related to particular ballots. Nothing in the contest statute requires or permits ballots which are uncontested to be subject to review and investigation, and the statute certainly does not require every ballot cast in an election to be reviewed because a few have been challenged."

In its much reviewed and debated opinion of Nov. 21, the Florida Supreme Court declared: "We consistently have adhered to the principle that the will of the people is the paramount consideration. Our goal today remains the same as it was a quarter-century ago, i.e., to reach the result that reflects the will of the voters, whatever that might be."

Lawyers for several voter groups are hoping the state's highest court meant what it said.

(c) Copyright 2000. The Christian Science Publishing Society

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