Case Before Florida Justices May Turn on a Legal Phrase

A single key phrase in state election law, rather than a great constitutional issue, lies at the heart of the case to be heard Monday by the Florida Supreme Court. If county officials find “an error in the vote tabulation that could affect the outcome of the election,” they are to either correct the computer that first tallied the ballots or “manually recount all ballots.”

So, what does the law mean by an “error in the vote tabulation?”

A few days after the Nov. 7 election, Palm Beach County officials undertook a hand recount of 1% of their precincts. From this, they estimated 10,000 votes had not been counted in the countywide computer tally.

Moreover, the hand count turned up 33 extra votes for Al Gore and 14 for George W. Bush. If this net gain of 19 votes for Gore held true countywide, the vice president would pick up 1,900 votes.

And this “could affect the outcome of this very close presidential contest,” Judge Charles Burton, chairman of the Palm Beach County Canvassing Commission, said in a letter last week to Florida Secretary of State Katherine Harris.

Harris Refuses Countywide Count

Based on this evidence, the Palm Beach board said it needed to undertake a countywide hand recount. But Harris refused, saying such a recount was illegal.

“A manual recount of the ballots in a county is proper only where there has been a failure of the vote tabulation system,” her lawyers said. Because Palm Beach officials had no evidence of “equipment malfunctions,” they were not authorized to manually recount the ballots, she said.

That in essence is the case of Palm Beach County Canvassing Board vs. Katherine Harris, the legal dispute that could decide the presidency.

On Saturday, nine lawyers representing Gore filed a 62-page brief with the state high court on behalf of the Palm Beach board. The team of barristers is led by New Yorker David Boies, who was the Justice Department’s special counsel in the successful antitrust case against Microsoft Corp., and W. Dexter Douglass of Tallahassee, who served as counsel for the administration of the late Florida Gov. Lawton Chiles.

Lawyers for Bush are supposed to file their briefs on behalf of Harris by noon EST today.

Gore’s attorneys asked the state’s highest court to do two things: Order Harris and the state Election Canvassing Commission she heads not to declare a winner until they receive the results of manual recounts now underway in three Democratic-leaning counties, and to then include those results in the “official results.”

The vice president’s legal team urged the justices to pay heed to a 1976 Florida Supreme Court decision that said state officials should interpret election law in a manner that gives preference to the will of the electorate, “not hypertechnical compliance with statutes.”

“The question before this court is as fundamental as it is straightforward: Whether lawfully cast and counted ballots are to be included in the vote total that will resolve an issue of paramount national importance,” the Gore lawyers said.

“Manual recounts are an essential part of the law of Florida [as in many other states]. They have been applied on numerous occasions in elections for lower level officials,” the brief argues. And “Florida law [has] not artificially limited the term ‘error in the vote tabulation’ to machine breakdowns.”

The Democratic lawyers theorize that a small percentage of votes were not counted by the old tabulating machines. The problem likely stems from the now infamous chads, the tiny pieces of paper that can stick to a punched-out ballot.

In a separate brief, Democratic state Atty. Gen. Bob Butterworth, co-chairman of Gore’s Florida campaign, faults Harris for injecting a word into the law where it does not belong. “The plain language of the statute refers not to an error in the vote tabulation system, but to an error in the vote tabulation,” he said.

Last week, in a preliminary brief submitted in the state high court, Harris’ lawyers, Deborah K. Kearney and Joseph Klock Jr., argued that Florida lawmakers were concerned about computer failures or software errors when they authorized local recounts.

The 1989 additions to the election law were supposed to “promote the use of electronic systems, and not to frustrate their use and bog down the election process with countywide manual recounts in the absence of the failure of an electronic system,” Harris maintained.

The secretary of state also argues that she has broad discretion to decide such issues and that a state court is obliged to defer to her opinion.

As a general rule, courts give considerable deference to government officials when considering lawsuits contending that such officials have abused their discretion.

On Friday, Leon County Circuit Court Judge Terry P. Lewis said that Harris had validly exercised her discretion. He said she used “reasoned judgment to determine what relevant factors and criteria should be considered” and applied them to the pertinent facts and circumstances in making her decision disallowing the hand counts.

Gore’s lawyers attacked Harris’ argument and, in effect, urged a reversal of Lewis’ ruling.

“The heart of the secretary’s claim is her current assertion that she has the discretion to reject vote totals determined by a manual recount if the recounted returns are submitted more than seven days after election day--and that she may exercise that asserted discretion virtually without constraint,” according to the Gore brief.

“This position is an astounding one: It would reject ballots that are conceded to have been validly cast, and that were identified in a properly initiated and conducted recount, simply because they reached the secretary later than a deadline so short as to preclude the completion of the recounts provided for by statute.”

The brief also contends that “there is a fundamental defect” both in Harris’ position and in Lewis’ ruling. “In the circumstances of this case, the secretary has no discretion at all to refuse to take into account the results of a manual recount.”

Florida law “expressly contemplates that the results of a manual recount will trump a machine vote tabulation,” Gore’s attorneys say. “It simply cannot be the case that the Legislature provided for full manual recounts to determine the accurate and controlling vote tally, while allowing the secretary to certify a winner prior to when the recount could be completed.”.

The Gore brief emphasizes a 1990 Florida decision that held that if a government official makes “a premature decision based on an insufficient study of the relevant factors,” that constitutes an abuse of discretion.

It’s Unclear When Justices Will Rule

On Monday, the high court is scheduled to hear oral arguments from both sides, but it is not clear when the justices will rule.

The Democratic lawyers were heartened by two actions of the Florida Supreme Court last week. On Thursday, the justices ordered the manual recounts to continue. And Friday, they barred Harris from certifying the election results as final until the court provides further direction. But neither action necessarily means the court will side with Gore and order the recounted ballots to be included in the statewide total.

The justices may hold off on a final ruling until the vote counts are completed. To this point, the case has been litigated on the theory that the manual recounts could determine the outcome. But if Bush retains his slim lead despite the recounts, the court could declare the matter moot.

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Savage reported from Washington, Weinstein from Los Angeles. Researcher Massie Ritsch contributed to this story.