Florida courts will decide hand count dispute

Both the Gore and Bush campaigns have stumbled off the moral high ground and into legal battles.

Published November 14, 2000 2:00AM (EST)

The battle for the White House moved to the courts Monday, as lawyers for the Bush and Gore campaigns fought in Miami and the state capital over whether manual recounts in three counties should proceed.

In a Miami federal court, a judge refused to stop the hand counts underway in three Florida counties. Earlier Florida Secretary of State Katherine Harris told emissaries of both sides she planned to certify the election results Tuesday at 5 p.m. EST, without the complete hand counts.

So in state court in Tallahassee, the Gore campaign joined a suit filed by Volusia and Palm Beach counties asking for an extension of the deadline for all counties to submit election results to the state. Volusia and Palm Beach have asked for more time to conduct their manual recounts.

If the Gore campaign loses the case, Gore will all but certainly lose the election, since it would discontinue both counties' recounts. Those recounts hold the best hope for Gore to overcome his 388-vote deficit in Florida.

Terry Lewis, a liberal state court judge (known for overturning the state's parental notification law for minors who seek abortions), will not rule until 10:30 a.m. Tuesday. But Lewis' line of questioning seemed to indicate that he was sympathetic to the case being made by Gore's legal team. He repeatedly took Republican lawyers to task for claiming they could only extend the deadline in the event of a natural disaster.

This election, the Gore team argued, was the next best thing.

Republican lawyers, including attorneys for the secretary of state who was named as the original defendant in the case, argued that recounts are only allowed in Florida if there is a problem with the voting tabulation machines. One Democratic lawyer here called the argument "horseshit."

But the number of legal skirmishes in both state and federal court Monday served to underscore the fact that the battle for Florida is now clearly a multi-front war, with complex legal and spin strategies in play.

Throughout the day Monday, news poured in from across the state, and it was difficult to keep up with the latest dispatches. It was also a day of contradictions: While the Democrats were arguing for the courts to intervene in Tallahassee, it was the Republicans asking for the courts to step in in Miami. While a judge representing Republicans in Miami said he planned to file an appeal, sources at the Bush campaign said that was still up in the air.

As the election moves into the courts, confusion is more apparent among the media hordes staked out in the state capital. Further clouding the situation Monday were reports coming out of Volusia that county officials had finished their recount ahead of schedule, and were just tallying the absentee ballots.

In unofficial counts, both Gore and Bush picked up more than 250 votes -- with Gore netting a three-vote pick-up overall -- in the county that broke strongly Democratic on Election Night, contradicting the conventional wisdom that the candidate who wins on Election Night stands to benefit from the recount.

If Volusia didn't need an extension, would the state case then be thrown out?

Gore's Florida election watcher, former Secretary of State Warren Christopher, said Volusia's unexpected progress was the reason Palm Beach County and the Gore campaign latched onto the suit. Rather than file individual challenges to the law, Democratic officials and county election functionaries agreed to concentrate their legal efforts on one major suit. Dade County is contemplating a county-wide hand count, and it is believed that if Dade elects to join the manual count, it will also join the lawsuit to seek an extension of the Tuesday deadline.

"We are firmly in that action and if for some reason Volusia doesn't need the protection of that order, we will seek it for the other counties," Christopher said.

As the election moves into this legalistic phase dominated by the courts, the rhetoric becomes more remote and tangled. Gone are many of the overt partisan snipes and personal attacks that marked the first days of this standoff. Now, sections of legal code are batted back and forth along with discussions of constitutional principles, judicial precedents and due process of law.

Clearly, the legal war is only one of the fronts in this battle. The war of public perception is being fought hard by both sides. But the Bush campaign in recent days seems to have lost some of its footing on the moral high ground the Gore campaign ceded when campaign chairman Bill Daley came out of the box Wednesday clamoring for lawsuits, and allowing Jesse Jackson to rile up black voters in South Florida. Instead, it was the Bush campaign that threw the election into court this weekend by filing the federal suit. The campaign put itself in the position of simply wanting to stop counting ballots in the interest of time, and a perceived national weariness.

Florida Secretary of State Harris claimed she was bound by law to not offer an extension for counties still tallying ballots. "Any discretion vested in me by the legislature in this regard is necessarily limited to circumstances not specifically contemplated by the Legislature in the law." Harris said she took that to mean exceptions could be made in the event of natural disasters, such as hurricanes, but not simply in a close election.

But Christopher said Harris was being "arbitrary and unreasonable" and accused her of moving "in the direction of partisan politics," he said. "She's been active, quite active in the campaign of George W. Bush."

Meanwhile, Bush spokeswoman Karen Hughes tried to make the case that the pictures of Palm Beach County officials holding punch-card ballots up to the light was so ridiculous that it was obviously a miscarriage of justice. Rather than argue for hand recounts in Republican parts of the state to counterbalance the hand counts already underway, Hughes accused Gore of trying to flout state law and circumvent the will of the state's voters. The Bush camp continues to argue that somehow hand counts are inherently evil, never mind that as governor of Texas, Bush himself signed a law allowing hand counts in the Lone Star State.

If it was the Bush campaign's intent to create a sense of inevitability about a Bush presidency, the Gore campaign Monday came back to the fact that the vice president is ahead both in the popular vote and the electoral vote, as if that makes this race his to lose. Even Gore himself emerged from his weekend in hiding to make a beeline for the high ground, staging a press conference in the most presidential of settings, the White House south lawn. "I would not want to win the presidency by a few votes cast in error or misinterpreted or not counted and I don't think Governor Bush wants that either," Gore said.

Regardless of what happens with the Tuesday cutoff, another important deadline looms in Tallahassee, a deadline far more certain than the statues which can be adjusted by the courts. Saturday is the big game between No. 3 Florida State and No. 4 Florida, and reporters in Tallahassee are desperately scrambling for rooms as hordes of college football fans prepare to descend on the state capital. For one day at least, football may eclipse politics in this small city. Locals here seem ready for the change of pace.

By Anthony York

Anthony York is Salon's Washington correspondent.

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Al Gore George W. Bush