Official Rulings Mostly Follow Partisan Lines

Few were surprised when the director of Florida’s election division--a Republican--issued an opinion earlier this week that strengthened George W. Bush’s bid to block manual vote recounts in key counties. Or that the state attorney general--a Democrat--later issued a contradictory opinion authorizing manual recounts.

That starkly partisan division followed the groove cut from the first hours of the continuing dispute about how to determine which candidate will win Florida’s 25 electoral votes that in turn will decide the next president.

At virtually every turn, the byzantine struggle over Florida’s results has upheld Winston Churchill’s famous dictum about party loyalty: Where you stand depends on where you sit.

With a few notable exceptions, it has been possible to predict the decisions of all the key officials in the dispute simply by knowing their partisan history. And that has pointedly illustrated the difficulty of removing political considerations even from decisions that are supposed to be removed from partisanship.

“It reminds us how deeply wired politics is in any political decision and how hard it is to separate out political loyalties from even technical decisions,” said political scientist Donald F. Kettl, an expert on civil service reform.

This partisan pattern already has inspired each side to repeatedly charge the other with conflicts of interest. Republicans, for instance, questioned the objectivity of the judge--appointed by President Clinton--who on Monday in federal court ruled against Texas Gov. Bush’s effort to block the hand recounts.

The Partisan Ties That Bind

Democrats, meanwhile, have demanded that Florida Secretary of State Katherine Harris, a Republican, recuse herself from the controversy.

With each passing day, both sides are accumulating grievances likely to fester over the full four-year term of whichever man ultimately wins this protracted struggle. “This whole process, the way it is playing out, is definitely partisan and is going to leave a bad taste in the mouth of the public,” said Pete Wehner, policy director at the conservative think tank Empower America. “And when it is done, one side or the other is going to be enraged and embittered by the outcome and it is going to be about 50% of the public.”

In some ways, this battle is reminiscent of the confrontation over President Clinton’s impeachment. During that long dispute, hardly anyone on either side broke party lines. Similarly, this may be a struggle in which partisan stakes are so high that few in either camp can take positions inimical to their own party.

That especially is true for officials in high-profile positions. “The higher up you are in the political food chain, the less likely you are to break with your team,” one senior Republican operative said.

A handful of players in the Florida drama have cut against that grain. Leon County Circuit Court Judge Terry Lewis, who issued a multilayered ruling Tuesday concerning the deadline for counting ballots that cheered Republicans more than Democrats, was appointed to his position by Florida’s late Democratic Gov. Lawton Chiles. Judge Robert W. Lee, a Democratic member of the election board in Broward County, joined with the panel’s one Republican member Monday night to reject a request from Vice President Al Gore’s campaign for a countywide manual recount.

But, tellingly, Lee cast that vote only after receiving an advisory opinion from Clay Roberts, the Republican who serves as director of the division of elections in the secretary of state’s office. In his opinion, Roberts asserted that counties can order a manual recount only if they have evidence that the machines used to automatically tabulate the votes malfunctioned.

State Atty. Gen. Bob Butterworth, who chaired Gore’s Florida campaign, then quickly fired off his opinion that counties had the discretion to pursue manual recounts if the machine fails to “discern the choices of the voters.” After Butterworth’s declaration, Lee reversed course and said he would support a manual recount.

This partisan predictability has been, by far, the more common pattern in Florida. Republicans openly fret about their prospects of winning any disputes that reach the Florida Supreme Court because all but one of its members were appointed by Democratic governors.

Democrats, in turn, have been outraged by reports that Sandra Goard, a Republican who is the election supervisor in Seminole County, north of Orlando, allowed GOP workers to use her office to correct mistakes on pre-printed absentee ballots that the state GOP mailed out. And Democrats have directed a steady stream of fire at Harris, the secretary of state whose office has made two critical rulings beneficial to Bush.

First, Harris concluded that state law required her to receive all ballots by 5 p.m. Tuesday. Until modified by Lewis’ ruling, Harris’ edict had the potential of precluding most of the manual recounting Gore has sought. The other key ruling was the assertion by election director Roberts, who works for Harris, that manual recounts were authorized only if the vote-tabulating machines malfunction. Palm Beach County now is challenging that advisory in the state Supreme Court, even as it begins its own manual recount today.

Democrats say that all these rulings are questionable because of Harris’ extensive involvement in Republican politics. She was a co-chair of George W. Bush’s campaign in the state and even traveled to New Hampshire to campaign for him. She also has been quoted as saying that she would be “passionately interested” in an appointment in a prospective Bush administration.

Gore spokesman Chris Lehane this week denounced Harris as “a close political ally of the Bush campaign . . . [who] seems to be acting as a lackey for the Bush campaign.” Laura Quinn, the Democratic National Committee communications director, said that Harris should have recused herself from the dispute.

But Haley Barbour, the former chairman of the Republican National Committee, said that such demands are misguided. “A number of judges have recused themselves” from decisions concerning the Florida vote, following judicial standards for potential conflicts of interest, he noted. “But when somebody has executive responsibility, to whom does that person recuse? When the holder of an office is assigned by a responsibility to act, they act.”

Kettl, the political scientist who has written on civil service reform, also disagreed with demands for Harris to recuse herself.

“Anyone who is a major player in the [state government] system is a player with a stake in the election, so you are going to get people who are inevitably bending one way or the other.”

But Democratic advocates such as attorney Allan Dershowitz said Harris’ partisan ties were so extensive that “no one is going to accept” any result her decisions produce. “She’s a functionary of the Republican Party,” he charged Tuesday night on CNN.

Hard to Find Neutral Parties

Indeed, the difficulty of finding participants truly neutral in the struggle was underscored this week when fully five Palm Beach County Circuit Court judges recused themselves because of assorted conflicts from the case filed by local residents who claimed that the “butterfly ballot” the county used in last week’s election violated state law.

The opportunity for partisan recrimination will increase dramatically over the next few days as a result of Tuesday’s ruling by Lewis, the Leon County judge. He upheld Harris’ authority to demand that all counties report their final vote totals by 5 p.m. Tuesday, but said that counties conducting hand counts could amend their results at a later date. At that point, he said, Harris can decide whether to accept the revised numbers--though he warned that she could not “ignore such late-filed returns . . . arbitrarily.”

By leaving so much discretion to a figure already under partisan attack, Lewis seemed to be ensuring more fireworks.

“She is going to be under tremendous pressure to pay attention to those manual recounts if they are substantially different” from the machine counts, Kettl said.