Recount fight reverses partisan roles

Republicans argue -- unsuccessfully -- for federal intervention, while Democrats make plea for states' rights.


Alicia Montgomery
November 14, 2000 3:54AM (UTC)

There was an interesting reversal of the standard partisan roles in the courtroom where attorneys allied with George W. Bush attempted to stop the hand count of votes in several Florida counties. Republicans usually view themselves as champions of states' rights, but those on the Bush side in this legal battle attempted -- unsuccessfully -- to persuade a federal judge to jump in and halt a state action. And while Democrats often advocate using federal authority to correct local problems, attorneys representing Al Gore's camp argued that the recount decision is an issue for the state of Florida to decide.

In the end, U.S. District Judge Donald Middlebrooks told a courtroom packed with reporters that the hand-count procedure was none of the federal government's business. Though he sympathized with the Bush team's concern that the selective recount would delay the final result and could skew the ultimate tally in Gore's favor, Middlebrooks said that "a federal court has a very limited role and should not intervene." The judge would not hide his delight in passing the buck. "I am not under an illusion I am the last word on this, and I am rather grateful for that," he said.

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Middlebrooks did not fight for the last word during the court proceeding, listening with little interruption to the parade of lawyers. Ted Olson, the primary attorney for the anti-hand-count side, attacked the recount procedure as "chaotic, unreliable and capricious," and cited a CNN report that implied that the standard for determining hand-counted votes had changed more than once. Using the 14th Amendment's "equal protection" clause, he argued that holding the recount in Democratic strongholds would unfairly dilute Bush votes from GOP territory.

Not so, said Gore advocate Kendall Coffey, reminding the court that the Republicans had every right to request similar recounts in their own Florida territories, but had thus far declined to do so. Also on the pro-hand-count side, attorney and Harvard University law professor Laurence Tribe trumpeted the superiority of people to electronic devices in tabulating the vote. "The human eye, the human hand, sometimes has an advantage over the machine," he said. Furthermore, Tribe told the court, the delay of a few days, or even a couple of weeks, would not inhibit the clean transfer of power, considering that Electoral College delegates don't get their orders until mid-December.

That argument was persuasive to Middlebrooks, who acknowledged, "I share a desire for finality," but added that an injunction at this stage would probably not lead to a quick resolution. Though the Gore forces left the court in triumph, the victory could be in vain. On Monday morning, Florida Secretary of State Katherine Harris issued a statement that would effectively do for the GOP what it failed to accomplish in court. Despite the ongoing calls for recounts, Harris announced that she will not extend a Tuesday afternoon deadline to accommodate late-coming results.

Although Volusia County officials say that they are almost done with their recount, they are moving to block Harris' order. Broward County officials are planning to begin their recount, and Miami-Dade County will discuss the recount procedure on Tuesday.

Following expressions of disbelief and incredulity from those on the Gore team about Harris' announcement, attorney Alan Dershowitz, who represents a handful of pro-hand-count voters, sounded confident that the Florida official would lose in court. "I can't imagine that the 5 o'clock [Tuesday] deadline will be sustained," he said.

Despite Olson's accusation in court that the famed lawyer would indefinitely tie up the process with lawsuits, Dershowitz said he believes that the matter will end sooner rather than later. "If the recount by hand establishes a clear winner, that will probably be the end of it," he said.

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In other court actions, the Republicans have sought to throw out six separate lawsuits by Palm Beach area voters who objected to the butterfly ballot design. In the event that the court refuses to toss out the lawsuits, Bush partisans want to change the venue, moving the cases from Democratic West Palm Beach to the more conservative state capital, Tallahassee. A hearing on the GOP request is being held Monday afternoon.


Alicia Montgomery

Alicia Montgomery is an associate editor in Salon's Washington bureau.

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2000 Elections

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