Vote Fight Hits the Courts

Vice President Al Gore’s victory in Miami federal court Monday was only the first step in a rapidly unfolding legal battle in the war for Florida’s 25 electoral votes, with the next major ruling expected today.

With U.S. District Judge Donald M. Middlebrooks’ refusal to block a hand recount of ballots in several Florida counties, attention shifts to state court in Tallahassee. Circuit Judge Terry P. Lewis is expected to rule on whether Florida Secretary of State Katherine Harris, a Republican, can enforce today’s 5 p.m. EST deadline on certifying election results. The vice president’s legal team joined lawyers for Florida counties in asking for an injunction to block the deadline.

The battle over the deadline involves two Florida laws that appear to conflict. Depending on how Lewis reconciles them, the legal teams for both Gore and Texas Gov. George W. Bush will face critical decisions on whether to file appeals that could prolong the litigation or forge a compromise that might bring a conclusion to one of the closest presidential elections in the nation’s history.

Bush could appeal his loss in federal court to the U.S. 11th Circuit Court of Appeals in Atlanta or to the U.S. Supreme Court.

Whoever loses in Lewis’ court could appeal to a three-judge Florida appellate court or to the seven-member Florida Supreme Court.

Missing Counties Could Be Ignored

The first of the two conflicting Florida laws is Section 102.111 of the state’s Election Code. It provides that county returns “must be filed by 5 p.m. on the seventh day following . . . the general election,” which would be this evening. If “returns are not received” by the deadline, “all missing counties shall be ignored,” the law says.

Although the law says the county returns must be filed by that deadline, it does not say that state officials must certify the results at that time. Instead, the law says only that the results “may be certified” on the seventh day.

The second statutory provision in question commands county officials to ensure that all ballots are counted and says that if any ballot “cannot be counted properly by automatic tabulating equipment, the ballot shall be counted manually.”

Florida law does contain a section, enacted after Hurricane Andrew in 1990, allowing an extension of the deadline in the event of an emergency.

Some legal experts said they thought the current circumstances were not the sort of emergency the statute was intended to cover.

But at a hearing Monday before Judge Lewis, Dexter Douglass, former general counsel to the late Gov. Lawton Chiles, who now represents Gore, disagreed.

“Let me tell you, this is not only a hurricane,” Douglass said, “this is a bark-splitting, north Florida cyclone with a hurricane tail on the end of it. That’s what this is. It’s one that rips across this entire nation.

“The issue is, does Florida stand up for an honest vote for people in other countries to point to and say that the United States has honest elections?” Douglass said.

But Debby Kearney, a lawyer for Harris, said the Florida Legislature had imposed the deadline to ensure the “finality” of elections. Once the deadline is extended, “where does it end?” she asked.

Consequences Unpredictable

The presidential election could hang on how the clash between the two statutes is resolved.

“This is the first time these two provisions have collided this way,” said University of Miami law professor Terence J. Anderson.

Harris pointed to the first section of the law on Monday, saying that the statute gives her no choice but to enforce the deadline. That characterization was supported by Bob Crawford, another Florida election official--who is also a Bush supporter--and by Bush campaign leaders.

Former U.S. Secretary of State Warren Christopher, who is leading Gore’s effort in Florida, immediately challenged that decision, as did some legal scholars. Christopher called it “arbitrary and unreasonable.”

The Democrats argue, in the words of Harvard law professor Laurence Tribe, that the two Florida statutes are on a “collision course.” The constitutional principle that every person’s vote should be counted means that the collision should be resolved by extending the deadline to allow the recounts to proceed, said Tribe, who represented Gore in court on Monday.

Several legal experts in Florida who are not involved in the litigation said they think the Democrats have the edge.

“I think a judge is going to look at this and say the state may not certify the result until the recounts are completed,” Anderson said. “It doesn’t make sense to say the secretary of state can just cut off the vote-counting.”

Joseph Little, a University of Florida constitutional law professor, said he thought the Florida Supreme Court would be receptive to the Democrats’ argument that there is no urgent need to end recounts today, given that the electoral college does not vote until Dec. 18.

Prohibiting completion of the recount would violate the right of a certain number of Florida voters to have their votes counted, Little said, noting that “the right to vote is a fundamental right.”

But the lawyers agreed that they cannot be certain of the outcome because Florida courts have never faced the issue before.

“We never expected to find ourselves in this position,” said Orlando attorney David E. Cardwell, who ran the state’s division of elections in the late 1970s. In the past, all recounts were completed in time, but none of them involved a race of this magnitude, he said.

The Bush campaign, which has a slim lead in the vote so far, wants the counting to end today, and it wants the state results certified as final.

The Gore campaign wants the hand counts to continue for a few more days in several counties in which Gore won a majority of the vote. The Democrats say that they want a full and accurate count and that county officials need more time to finish the job.

As a general rule, hand counts increase the number of votes cast for each candidate because inspection of ballots tends to find some valid votes that were rejected by counting machines. In counties that Gore won heavily, expanding the number of votes would likely eat into Bush’s margin.

So far, Palm Beach County has decided to recount all of its ballots by hand, Miami/Dade County is debating whether to do so and Volusia County is nearing completion of its recount. Officials in Broward County, just north of Miami, decided Monday night that a hand recount was unnecessary because a recount of a sample of precincts showed very little change in the vote.

If Harris is allowed to enforce the deadline, it is unclear what vote count from Palm Beach County she would include in the official state tally. County officials have not certified their results so far.

When asked about that, Harris indicated that the county’s votes would be accounted for based on information she could receive by computer. She did not elaborate.

The count would not include an undetermined number of still-uncounted absentee ballots from Americans living overseas. Under a federal law enacted specifically to guarantee that Americans abroad are not disenfranchised by state ballot deadlines, those votes are not due until Friday. They are not expected to be all counted until Saturday.

Even as they honed the arguments they would present in state court, Gore’s legal team enjoyed a victory Monday at the federal courthouse in Miami as Middlebrooks rejected Bush’s request to halt further recounts.

“The federal court has a very limited role and should not intervene unless there are clearly shown constitutional violations,” the judge said.

He added: “I’m under no illusion that I’m the final word on this.”

Afterward, Tribe said that “the court saw no reason to believe that Florida was incapable of taking care of all the questions raised by the Bush campaign” about the recount.

Bush’s lead lawyer, Theodore B. Olson, said he was disappointed in the ruling but “not surprised.” Before the hearing, both Democratic and Republican legal experts said they thought Bush’s attorneys had a difficult case to win.

The road might be equally difficult if Bush chooses to appeal Middlebrooks’ decision. To convince the Court of Appeals that the judge was wrong in denying an injunction, Bush’s lawyers would have to show that Middlebrooks abused his discretion--a difficult standard to meet.

Olson and other Bush representatives declined to say when they would decide whether to appeal. If they do, they face one particularly strong risk: By dragging out the federal court process, they could forego the opportunity to seek manual recounts in counties that might be stronger for them.

So far, Bush has picked up 98 votes in the one manual recount that has been certified, in Seminole County. The campaign already has missed the deadline for requesting a manual recount in some other Florida counties.

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Times staff writer Mike Clary in Miami and Michael Finnegan in Tallahassee contributed to this story.