Florida Taps L.A. Scholar for Guidance

Have Constitution, will travel.

On Thursday morning, Erwin Chemerinsky, USC’s peripatetic constitutional law professor, arrived at his office, just back from giving speeches to federal appellate judges in Atlanta and Austin, Texas.

About 10 a.m. his phone rang. It was a Democratic lawyer inviting Chemerinsky to Florida for a hearing on whether a local judge has authority to order a complete revote there because of confusion over Palm Beach County’s now infamous “butterfly ballot.”

“How could I not do it? It’s the case of a lifetime,” Chemerinsky said as he headed to the airport.

Chemerinsky, 47, already has given considerable thought to the issue and wrote an opinion column headlined “Palm Beach County Must Vote Again” that ran Sunday in the Los Angeles Times.

“These voters have a strong argument that their rights under federal and state law have been violated,” Chemerinsky said. “The right to vote is guaranteed by the 14th and 15th amendments to the Constitution.”

He said the county’s ballot was misleading and “effectively nullified the votes of thousands of people.”

Many voters in Palm Beach County contend that they were confused by the butterfly ballot because it had the names of presidential candidates on two facing pages. They say they accidentally voted for Reform Party candidate Pat Buchanan rather than Vice President Al Gore because the punch hole for Buchanan was closely aligned with Gore’s name on the ballot.

Attorneys for the Republican Party and the Palm Beach County Canvassing Board say there’s no valid reason for a revote, and some of Florida’s top attorneys will be opposing Chemerinsky in court today.

Tallahassee attorney Barry Richard, who is representing GOP candidate George W. Bush, and West Palm Beach trial lawyer Bob Montgomery, who represents the county canvassing board, contend there is no cause for a revote. There were no machine failures, they say, nor did anything else happen that would justify the extraordinary step of conducting another vote.

At a preliminary hearing on the issue Wednesday, Palm Beach County Circuit Judge Jorge Labarga said he wanted to hear arguments from constitutional law experts about whether he has the authority to order a revote.

So on Thursday, West Palm Beach lawyer Gary Farmer, who represents two voters in the county who filed a lawsuit demanding a new election, called Chemerinsky. Chemerinsky immediately said yes.

In recent years, he has helped Belarus, formerly part of the Soviet Union, rewrite its constitution. Closer to home, he served as chairman of the elected charter reform commission in Los Angeles.

In the Los Angeles endeavor, Chemerinsky won high praise for his ability to forge compromises with the commission appointed by Mayor Richard Riordan. The result was a new government blueprint that was handily approved by Los Angeles voters.

“Erwin doesn’t just have an encyclopedic knowledge of constitutional law, he is a very good negotiator,” said Los Angeles lawyer Douglas E. Mirell, who has worked with Chemerinsky on several appellate briefs on constitutional issues. “He can lecture to a bar review class on constitutional law for an entire day without notes.”

In addition to teaching classes and bar review courses, Chemerinsky writes frequently for popular and scholarly legal publications and has written treatises concerning constitutional law and federal jurisdiction.

Chemerinsky said that, in the Florida case, he plans to rely on broad constitutional principles and several cases in attempting to persuade Labarga to order a new vote.

He said the most authoritative precedent on the subject is a 1967 federal appeals court decision in New Orleans. The court ruled that a trial judge had the right to order a new vote after blacks in Americus, Ga., demonstrated that they had been intimidated and therefore did not vote in an election for a local justice of the peace.

Chemerinsky acknowledged that the situation is not identical with the current dispute in Florida, but the novelty of the challenge and the potential effect is part of what compelled him to go to the Sunshine State.

“I’ll be reading cases on the plane,” he said.