Ballot Retabulation Issue Could Soon Be Back Before Judges

The net result of the first legal battles over the presidential vote has been to throw the struggle for Florida--at least for now--back to the political arena.

But Republicans served notice Tuesday evening that they will try to get back into court rapidly--declaring that they will ask a federal appeals court in Atlanta to hold an emergency hearing on a request to block further recounting of Florida’s votes. How quickly the appeals court might consider the case was not immediately known.

The Florida Supreme Court may also soon weigh in. Two Florida counties that have been recounting ballots by hand have asked the state high court for guidance. Lawyers say the justices could rule as early as today.

On Tuesday, Florida Circuit Court judge Terry P. Lewis in Tallahassee ruled that counties could submit hand recounts of ballots to Katherine Harris, the state’s Republican secretary of state. Harris, he ruled, has discretion about whether to accept recounts after Tuesday’s 5 p.m. deadline.

That decision put Harris, a vocal supporter of the Republican presidential candidate, Texas Gov. George W. Bush, and her two colleagues on the state elections board, in a difficult position, legal and political experts said.

Decision Left in ‘Political Realm’

“If someone sends her new returns in three days, is she not going to accept them?” asked Jon Mills, the dean of the University of Florida’s Law School and a former Democratic legislator. “That might be an abuse of discretion. If Gore has the votes to win by Friday, what would be the country’s reaction if she refused to accept them?”

“I think [Judge Lewis] struck just the right balance,” said University of Miami law professor Terence J. Anderson. “Neither party can claim a clear victory, and he has left the matter in the political realm.”

On Tuesday night, Harris said that any counties that are conducting recounts will have to submit reasons by no later than 2 p.m. EST today explaining why they should be able to submit amended results.

Harris nominally won when Lewis upheld the validity of Tuesday’s deadline, and the decision initially was hailed by Bush aides. But as lawyers studied the judge’s ruling, the Bush campaign showed its discomfort with the result by the quick decision to return to federal court. They were seeking review of their loss on Monday, when a federal judge in Miami refused to block hand recounts.

The legal maneuvers came on a day filled with court decisions and threats of further litigation.

Responding to requests from officials in Palm Beach and Broward counties, state court judges said that election officials could conduct manual recounts. In essence, the decisions overruled an advisory opinion issued by Clay Roberts, a deputy to Harris who is director of the Florida division of elections.

Attorney General, State Courts Agree

Roberts on Tuesday morning had issued a statement saying that Palm Beach County had no authority to conduct further manual recounts “unless the discrepancy between the number of votes determined by the tabulation system and by the manual recount of four precincts is caused by incorrect election parameters or software errors.”

Florida Atty. Gen. Robert A. Butterworth, a Democrat who served as Vice President Al Gore’s campaign chairman in the state, immediately issued a sharply conflicting opinion, maintaining that “the [county] canvassing board has the authority to determine that the voter’s intention is clearly expressed.”

By later in the day, the state courts had agreed with Butterworth. Palm Beach officials promptly said they would commence the full hand recount at 7 a.m. EST today but also asked the state Supreme Court for further clarification. Officials in Volusia County, who have completed their recount, have also asked the high court to rule on counting procedures. Broward County officials said they would meet today to consider a further recount. That reversed a decision they had made Monday night to not do further counts.

Leading up to Tuesday’s decisions, Harris, backed by the Bush campaign, had argued that state law required that all vote counting “must end” by 5 p.m. on the seventh day after the election. The Gore campaign and the counties that plan to recount their ballots disagreed, saying the law that authorized a manual recount would be meaningless if counties were not given sufficient time to do it.

The judge, Lewis, adopted a middle-ground position. The “plain meaning” of the law makes clear the counties “must certify and file” their election returns by the Tuesday deadline, he wrote in a brief ruling. For this reason, he rejected the Gore campaign’s request to void the deadline.

But he faulted Harris for insisting that the deadline is final.

“I disagree . . . that the secretary is required to ignore any late-filed returns absent an act of God,” such as a hurricane, he wrote.

The law says that Harris “may ignore late-filed returns,” the judge said. But, he added, “the secretary does not have to ignore such returns.” And if she does decide to ignore some or all of them, she “may not do so arbitrarily.”

Lewis outlined a series of questions that he implied Harris must consider in deciding whether to include the results of future recounts in the state’s official results:

“When was the request for recount made? What were the reasons given? When did the canvassing board decide to do a manual recount? What was the basis for determination that such a recount was the appropriate action? How late were the results?

“Obviously, the list of scenarios is almost endless,” he wrote. Harris, he added, “may, and should, consider all the circumstances” in deciding whether to accept the results of the recounts.

All that will put Harris and her colleagues under a legal and political microscope. Harris, 43, campaigned for Bush in the New Hampshire primary earlier this year, was a Florida delegate to the Republican National Convention and was one of eight co-chairs of Bush’s Florida campaign, and there has been speculation in Florida political circles that she might garner an ambassadorship or arts post in a Bush administration.

Her two colleagues on the state elections board are Roberts and State Agriculture Commissioner Bob Crawford, who is a Democrat but who won his current job in part because of his strong ties to Florida’s Republican Gov. Jeb Bush--George W. Bush’s younger brother. He supported Bush’s presidential campaign.

After briefly studying Lewis’ decision, Gore’s attorneys praised it. The ruling clears the way for “a full, fair and accurate tabulation of the votes of the citizens of Florida,” said former Secretary of State Warren Christopher, speaking for the Gore campaign. He urged Florida counties to “move ahead with their hand counts. . . . We see an end to all this in a matter of days, not weeks.”

David Boies, a nationally prominent attorney from New York who represented Gore in court, added that “if the secretary of State arbitrarily refuses to accept the amended returns based on the recount and violates what this court has ruled . . . then we will be back in court.” If that happens, the question before a state court under Florida law would be whether Harris had acted in a way that was an “abuse of discretion.” Courts in Florida--as elsewhere in the country--assume that government officials act in good faith and give them deference in making decisions.

“The overarching issue will be whether the principle of procedural fairness was honored,” said University of Miami law professor Anthony Alfieri. Normally, in such circumstances courts ask whether the government official had a “rational basis” for her actions. But “clearly, this will not be a run-of-the mill ‘rational basis’ inquiry,” Alfieri said. “It is not hyperbole to say the fate of the nation in some ways is hanging in the balance,” he said.

The next stage of the legal fight may turn on how long the hand counts continue. On Tuesday night, Bush spokeswoman Karen Hughes contended that any further tabulations in the Democratic counties would not be “recounting but reinventing.” But Stanford University law professor Pamela Karlan said she thought any recounts submitted by Saturday likely would be considered “safe” because that is the day that absentee ballots from Americans living abroad are going to be counted, according to Donna Blanton, one of Harris’ attorneys.

The state expects to announce a complete statewide result including those absentee ballots by the end of the day Saturday, Blanton said. A Palm Beach County official, however, said that county’s elections board does not expect to complete its recount until Sunday.

If the manual recounts turn up substantial numbers of previously uncounted votes, the Gore campaign is certain to argue strongly that Harris must accept them.

By filing its notice of emergency appeal in the federal appeals court Tuesday, Bush’s attorneys took a step that made it clear that they want to preclude that possibility.

The other former secretary of State in the fray, Bush’s representative, James A. Baker III, has been calling for “finality.” On Tuesday, Baker accused the Democrats of scouring Democratic precincts for more votes.

Yale Law School professor Akhil Reed Amar called the move for a federal appeal a logical tactical step for the Bush forces. “They want the counting to stop,” Amar said. “The eyes of the world are watching, and people will know what the numbers are. For those Florida counties just to be able to do the recounts has enormous significance.”

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Times staff writers Steven Braun and Scott Glover and researcher Edith Stanley contributed to this story.

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Court Actions

Legal developments in the presidential election recount:

* A Florida judge ruled that officials could cut off the vote recount at 5 p.m. EST Tuesday but that counties may file supplemental or corrected totals after the deadline. Circuit Judge Terry Lewis ruled that Secretary of State Katherine Harris may not reject them “arbitrarily.”

* State Circuit Court judges ruled that Broward and Palm Beach Counties can conduct manual recounts if they choose. In Broward County, the election canvassing board, which on Monday voted not to conduct a countywide manual recount, rescinded that vote and said it will consider the issue again on Wednesday. Democrats went to court in Ft. Lauderdale to force the local board to conduct a recount. Also pending is a motion by the Democrats to require counting “dimple” ballots--those in which the chad on a ballot is indented.

* Lawyers for GOP candidate, Texas Gov. George W. Bush told a federal appeals court in Atlanta that they plan an emergency appeal in an effort to block further recounts in Florida.

* Still pending are lawsuits filed by aggrieved voters in Palm Beach County contending that they were confused by the county’s “butterfly ballot.”