Ruling Portends Long Judicial Trek to Finish

The Florida Supreme Court’s ruling Thursday giving the go-ahead for counties to recount their ballots by hand signals that the battle over the presidential race is likely to stretch well beyond Saturday, when state officials had hoped to declare a winner.

The brief but unanimous order was far from definitive, but it clearly helped Vice President Al Gore--if only by keeping his campaign hopes alive for at least another day. A ruling by the court stopping the hand recounts would have essentially handed the victory to Texas Gov. George W. Bush. And if the four-sentence order is a hint of the state high court’s intentions--a hope that Gore’s supporters ardently clung to--it could be the legal boost he has been hoping for.

The decision freed officials in Palm Beach and Broward counties to conduct their planned recounts. Of equal importance, it set the stage for what may turn out to be the pivotal ruling of the postelection contest--a declaration expected today from a formerly obscure Circuit Court judge in Tallahassee on whether Florida Secretary of State Katherine Harris must include the hand-counted ballots in the state’s vote totals.

Almost certainly, whichever side loses in Judge Terry P. Lewis’ court today will ask the state Supreme Court to take up the issue again. But because Lewis is the judge who has been handling the dispute so far, his decision is apt to have considerable weight with the high court.

The justices labeled Thursday’s pronouncement an “interim order.” But their action took on broader significance for two reasons. First, the action marked the second time in two days the state’s highest court had sided with lawyers for Democrats and had rebuffed Harris, a Republican and strong supporter of Bush.

Second was the timing, which was almost entirely at the high court’s discretion. The order came less than 24 hours after Harris announced she had closed the door to accepting any further recounted votes. It also came just as Lewis, an appointee of the late Democratic Gov. Lawton Chiles, began considering the Gore campaign’s plea to reverse Harris’ ruling.

Gore’s lawyers seized happily on the ruling, arguing that it foreshadowed how the justices would eventually rule on the question of whether recounted ballots should be included in the eventual tally of Florida’s vote.

“I think it’s very unlikely that the Florida Supreme Court would have directed that these recounts go forward if all they meant to do was to preserve these votes for history,” said David Boies, who has been representing Gore in the vote-counting litigation.

Baker Cites ‘Superb Example of . . . Spin’

Former Secretary of State James A. Baker III, representing Bush, disputed that, crediting his opponents with a “superb example of the art of legal spin.”

“I don’t think you can characterize this as a setback. What would have been a setback would have been if we lost something on the merits before the Florida Supreme Court,” Baker said.

The state justices may not take up the ultimate question of which votes must be included until next week, after all votes are counted.

But there is no doubt that all week long, a clash between the state’s courts and election chief has been building.

First, Harris announced she would strictly enforce the Tuesday deadline for submitting votes from across the state.

That day, Lewis issued a decision saying that while Harris had discretion to decide whether to accept returns after the deadline, she could not do so in an “arbitrary” manner.

Harris asked the state high court to halt all further counts. On Wednesday, the seven justices, six of whom were appointed by Democratic governors and the seventh named by both a Democratic and GOP governor, turned down her request in a brief order.

Then Harris’ deputy advised county officials they must halt their recounts. On Wednesday evening, Harris went one step further and announced that she had reviewed the reasons offered by counties to justify their recounts and found them insufficient. No further returns would be accepted, she said.

Uncertain how to proceed, Palm Beach County officials halted their recounts and returned the issue to the state’s highest court, seeking clear guidance.

Thursday’s four-sentence order was simple. “At present, [the] binding legal authority” permits the hand recounts, the state justices said. “There is no legal impediment to the recounts continuing.” The counties “are authorized to proceed with the manual recount.”

By the time the remaining legal issues are sorted out, the Florida courts--as well as the nation--might face the disturbing prospect of two vote counts from the Sunshine State. One, based on the machine counts plus the remaining absentee ballots from overseas, would probably give Bush a slim victory. The other, including the manual recounts, could give Gore an edge.

Because of the back-and-forth dispute, the disputed counties have not yet manually tallied their ballots. The deadline for overseas absentee ballots comes tonight.

Once the absentee ballots are counted, Baker is likely to assert that the Florida race is over.

Whether he will be able to make that claim stick will largely depend on how Lewis rules.

If Lewis upholds Harris’ position, she will declare a winner on Saturday. Unless the absentee ballot count surprises most observers, that winner will be Bush.

A narrow ruling from Lewis, coupled with silence from the state court, could also give an edge to the Bush team.

But if Lewis strongly rejects Harris’ move to exclude the recounted votes, Gore’s legal team will be able to argue that the Florida race remains undecided until the last vote has been counted again in Palm Beach County.

Gore’s lawyers may seek a more definitive order from Lewis today. They are hoping he will make clear that Harris does not have the legal authority to certify a winner of the Florida presidential race on Saturday.

If he does not decide that issue, the Gore team may return to court and ask him to issue an order barring Harris from certifying a final result.

The recount legal clash also had another battle front Thursday. At the request of Republican attorneys, a Circuit Court judge in heavily Democratic Broward County issued an order directing county canvassing board officials to appear at a hearing today and explain why they had continued the recount there in the face of Harris’ Wednesday night decision that she would accept no further hand-counted ballots.

Bush Attorney Urges End to Count

After the judge issued the order, attorney William Scherer, representing Bush, went to the building where the Broward recount is being held and told county officials that they had to appear in court. And in an emotional speech--broadcast nationwide on CNN--Scherer told Broward officials that they were breaking the law and that they should stop counting. They ignored him.

Meanwhile, the U.S. 11th Circuit Court of Appeals in Atlanta is expected, perhaps as early as Saturday, to hear the Bush campaign’s request for an emergency order that halts the manual recounts in Florida.

From the beginning, most legal experts have seen this effort as a longshot because federal judges are reluctant to jump into state election disputes, particularly when the issues already are being litigated in state courts. And while the 11th Circuit’s judges are mostly Republican appointees, judicial conservatives have been the most ardent advocates of letting states handle their own legal affairs.

“It would be quite extraordinary at this point for the 11th Circuit to say Florida election law is so arbitrary that it violates federal constitutional rights,” said Columbia University law professor Samuel Issacharoff, a voting rights expert.

Yale University law professor Akhil R. Amar agreed. “This is a classic situation” where a federal court normally would abstain from getting involved, he said. The basic legal principle from several U.S. Supreme Court rulings is that federal courts should be “very cautious” about intervening when state courts already are “on the job.” That is especially true, Amar said, in a case where a state’s highest court already is in the process of interpreting a state law issue, such as the situation in Florida.

While both professors and others doubted the 11th Circuit would leap into the dispute now, they left open the possibility that federal courts might intervene if Bush lost after the manual recounts.

If so, the case could yet end up with the U.S. Supreme Court being asked to decide whether the losing candidate was a victim of partisan manipulations.

*

Savage reported from Washington and Weinstein from Los Angeles.

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Headed to Nation’s Highest Court?

Multiple legal questions have arisen out of Florida’s presidential election, so it’s not possible to say that one court will decide all the issues. But on one key question--whether to include the results of hand recounts in contested counties--the matter could be headed for the U.S. Supreme Court. Democratic candidate Al Gore and his GOP rival, George W. Bush, appear to be on a legal collision course as one uses state courts and the other federal courts to resolve the issue.