All eyes shift to US high court

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

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

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.

Purely a state matter?

Lawyers for Gore argue that the case has no place in federal court, particularly the highest court in the nation: It is a matter for state judges to resolve as they see fit.

"The Florida court applied garden-variety principles of statutory interpretation to resolve ambiguities and reconcile conflicting provisions within the Florida Election Code," says Laurence Tribe, a Harvard Law School professor representing Gore, in his brief to the court.

Theodore Olson, a Washington lawyer representing Bush, disagrees. He says the Florida court effectively rewrote state election law in a way that heavily favored Gore while votes were still being recounted.

"The court ... had no authority under the federal Constitution to announce new rules for this presidential election," Mr. Olson writes in his brief. "Its attempt at judicial legislation was unconstitutional ... and the court's decision is thus void."

Legal analysts are divided on how the court might rule, but they all agree that a ruling will come soon, perhaps as early as Monday or Tuesday.

Mark Tushnet, a constitutional-law professor at Georgetown Law Center in Washington, says he believes the justices will uphold the Florida decision.

Mr. Tushnet says that, if they overturn the Florida court, it could set a dangerous precedent by undermining the ability of all judges to interpret confusing statutes without being accused of rewriting the law.

"The argument is basically, when a court interprets a statute, there is a possibility that what it does violates the separation of powers," Tushnet says. He says such a ruling could turn on the justices the next time they try to make sense out of a confusing tangle of legislative jargon.

Ronald Rotunda, a fellow at the Cato Institute in Washington and a constitutional law professor at the University of Illinois, says he believes the justices will overturn the Florida Supreme Court decision. "The notion of a hand count doesn't violate due process and equal protection," Mr. Rotunda says. "But the way it was carried out in Florida does."

He adds, "What you are doing by changing the rules, you are creating votes, not counting them."

Any decision could tip balance

With Bush clinging to a 537-vote lead in Florida, a ruling favorable to one side or the other could tip the balance.

If the justices overturn the Florida court decision, Gore would lose not only votes but his primary method of identifying more votes. In addition, from a public relations standpoint, such a ruling could create enormous pressures for Gore to concede defeat.

If the justices uphold the Florida court, Bush would find himself exactly in the position he is in now. He is the certified winner of the Florida election, but facing an election contest lawsuit by Gore and a string of other lawsuits that could push Gore past him, if state judges rule in the vice president's favor.

(c) Copyright 2000. The Christian Science Publishing Society

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