How
We Got Here
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Which is
why the Gore camp's best legal argument may be not that Harris
abused her discretion, but instead that she had no discretion
at all about whether to count the hand-recounted votes. Florida
law imposes an obligation on the counties to act when a sample
manual recount indicates an error in vote tabulation that
could affect the outcome of the election. And among the options
given to counties is manually recounting all the ballots.
In a county such as Miami-Dade, where 653,963 punch-card ballots
were cast, it may not be possible to set up the procedures,
recruit the staff and the Republican and Democratic observers,
and then complete the painstaking and delicate work of a hand
recount within seven days. Harris has no discretion, the Democrats
say, to do her job in a way that prevents the counties from
fulfilling an obligation imposed on them by law.
For its
part, the Bush campaign has been arguing for days that hand
recounts are inherently unreliable and subject to manipulation.
And last Saturday it made that case in graphic terms, offering
examples of misplaced and mishandled ballots in several counties.
But for
all of the Bush campaign's attacks on hand counting, the fact
is that it has a well-established place in election law. Florida
law expressly provides for hand recounts. And courts that
have reviewed elections decided by hand recounts - from Alaska
to Indiana to South Dakota - have overwhelmingly supported
them. If the Florida Supreme Court is concerned about the
way in which hand counting is occurring, it could take steps
to oversee it more directly, either by setting out its own
counting standards or by appointing a special master to supervise
the process.
Which is
one reason why when Republicans went to federal court last
week, they led with a more subtle claim. A problem with the
Florida hand recounts, they said, was that by conducting them
in some counties and not others, the state was depriving voters
in counties that were not being recounted of equal protection
of the law. It was an odd claim - the GOP doesn't usually
ask the federal courts to intrude in state elections - and
an unconvincing one. As the 11th Circuit Court of Appeals
noted in rejecting it, Article II, Section 1 of the Constitution
expressly provides that each state may select its presidential
electors "in such manner as the Legislature thereof may direct."
That's another way of saying that the states call the shots
in presidential elections.
The Katherine
Harris lawsuit is setting the agenda right now, but there
are some other potentially important lawsuits pending in state
court. The morning after the election, Democratic outrage
was focused on Palm Beach County and its controversial "butterfly
ballot." Palm Beach voters have filed more than a dozen lawsuits
challenging the ballot's legality. The plaintiffs and Democratic
volunteers have collected thousands of affidavits from voters
who say they were confused into miscasting their votes, and
they have collected statistical evidence arguing that when
thousands of ballots were discarded, rejected or mistakenly
cast for Buchanan, Gore lost some 11,675 votes.
It could
be a compelling case, particularly if plaintiffs can prove
that the ballot actually violates state law. The argument
that a Democratic official prepared the ballot should be irrelevant:
the right to a legal ballot belongs to the voters, not a political
party. The biggest problem with the suit is that there is
no easy remedy. Recounts are routine. Ordering a new election,
even in a single county, is a more radical step that no court
has ever taken in a presidential election. A new election
would mean deciding who could vote - all voters, or just those
who turned out on Election Day. It would also raise thorny
issues such as how to prevent those who voted for Nader from
switching now. And perhaps most unsettling, it would start
up the presidential race again - complete with candidates
campaigning and a blizzard of television commercials.
Every day,
it seems, there are more lawsuits presenting intriguing new
facts. In Seminole County, Democrats have filed a lawsuit
claiming that Republicans illegally completed portions of
some voters' absentee-ballot applications; some 4,700 votes
are at stake. And the NAACP held hearings in Miami Nov. 11
in which black voters gave disturbing testimony about being
intimidated from voting in a variety of ways - from being
required to provide IDs that were not required of white voters
to being denied legally required translators. The Justice
Department is investigating the claims. Republicans, meanwhile,
are charging Democrats with targeting more than 1,000 overseas
ballots, the bulk of them from military voters, which were
thrown out on Friday, many for either lack of a postmark or
the voter's own signature. More than two thirds of the absentee
ballots were rejected in Miami-Dade County, for example, many
of them because they had late postmarks or no postmarks.
The most
important actor right now in the Florida legal drama is the
Florida Supreme Court. It is the final arbiter of Florida
election law. And it has the power to impose almost any kind
of remedy it wants, from ordering recounts and revotes to
interpreting individual ballots that are in dispute. This
could be good news for the Gore campaign. Six of seven Florida
Supreme Court justices are Democrats; the other is an independent.
Leander J. Shaw Jr., the senior member of the court, is a
former public defender; and several others were trial lawyers,
a traditionally liberal sector of the bar. Recently, the Justices
have had tense relations with Governor Jeb Bush and Florida
Republicans. In April the court rejected rules he backed to
speed up death-penalty appeals. Bush responded by charging
the court with engaging in "unnecessary delay and legal gamesmanship"
in capital cases.
The Florida
election quagmire could end up before the U.S. Supreme Court,
although that is not likely. The high court doesn't usually
accept cases in which state courts are interpreting state
law. And that should be especially true of the current court,
which has been aggressive about extending state authority
in the federal system. But, in the end, both sides will have
the right to at least present their case to the Supreme Court.
And that fact should ensure that, no matter how acrimonious
things become in Florida, the ultimate result is one that
both sides - and, more crucially, the American people - accept
as legitimate. "What's most important is the most obvious,"
says Boies. "A peaceful transfer of power in the largest,
most stable democracy the world has ever known."
- With reporting
by Cathy Booth and Amanda Ripley/Tallahassee, Viveca Novak/Washington
and Timothy Roche/Palm Beach
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November 27,
2000 | NO. 47
U
N I T E D S T A T E S
COVER:
One Nation, Under Chad
In the murkiness of Florida, amid bickering about bits of paper, will
the next President be decided in the margins of error?
THE
CANDIDATES: Tales from the War Rooms
The inside story of the battles to take the White House
VIEWPOINT:
Will Defeat Be Good for the Democrats?
Jeff Greenfield speculates on political expediency
THE
COURTS: Where Will It All End?
Adam Cohen on judges, briefs and supreme decisions
VOTING:
A Map for the Electoral Labyrinth
Richard Lacayo on the morass-and ways to get out of it
S
O U T H P A C I F I C
INDONESIA:
Trouble on the Border
The first pictures from a West Papuan separatist training camp
Viewpoint:
The rebels' presence in P.N.G. could hurt Australia
T
H E A R T S
BOOKS:
Frank Moorhouse
brings his lively League of Nations chronicle to a close
Barbara Kingsolver
returns to her roots
CINEMA:
Girlfight's Michelle Rodriguez, a knockout talent
MUSIC:
The rich afterlife of Everlast Soul Sister Mumba One
TRAVELER'S
ADVISORY
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