The legal endgame

Court maneuvers in Florida mark the beginning of the end of this hotly contested presidential race -- but the play is far from over.

By Bruce Shapiro

Published November 15, 2000 1:22AM (EST)

At her press conference Tuesday night announcing the new 300-vote margin separating candidates Al Gore and George W. Bush in Florida, Secretary of State Katherine Harris sounded like she was taking the Fifth: "On the advice of legal counsel, I won't be answering any questions tonight." You had to ask yourself: What kind of election is this, where the official responsible for the tally will not take questions from the press?

But the stonewalling hardly came as a surprise given the decision Monday morning by Harris, who is Bush's Florida co-chairwoman and a close ally of his brother, Jeb, to short-circuit the hand counts requested by the Gore campaign in four Florida counties. In doing so, Harris set in motion the fiercest legal battles yet in this closely contested race.

In the day and a half since Harris first issued her orders, a federal judge has knocked down a Bush campaign gambit seeking an injunction against manual counts, and a Leon County, Fla., circuit judge ruled that Harris' deadline was permissible, but that she couldn't "arbitrarily" discard county votes that came in after the deadline she imposed.

But the biggest legal moves came after Tuesday's 5 p.m. deadline, which marked the beginning of this election's legal endgame. Volusia County officials have gone to the Florida Supreme Court to find out whether they can continue counting. And the Bush campaign has registered its intent to appeal Miami Federal Judge Donald Middlebrooks' rejection of federal jurisdiction to the 11th Circuit Court of Appeals. The Atlanta court is a notoriously conservative bench, where Bush hopes for further endorsement of Harris' position, but it could steer the case in unexpected directions.

Harris first announced her decision on Monday, just hours before Middlebrooks unceremoniously knocked down the Bush campaign's previous gambit -- a federal suit seeking an injunction against the manual counts, in which Gore's vote totals have crept upward. Bush and Gore lawyers were still arguing in Middlebrooks' court.

Harris declared the deadline for receiving counties' certified vote totals -- seven days after Election Day -- "mandatory; there are no exceptions." But her bravado was too much for Leon County Judge Terry Lewis, who, while upholding her right to set a deadline, ordered her to use "sound discretion" to consider "any pending recounts" in a decision announced Tuesday afternoon.

In one of the great hairsplitting, nondefinitive rulings of all time -- Lewis upheld Harris' right to set a 5 p.m. deadline, even while ordering her to not "arbitrarily reject" any results that come in later. Whether those counties can even go ahead with their recounts is now a matter of a tangle of appeals and of contending interpretations between Harris and Democratic Attorney General Bob Butterworth.

Though since overtaken by events, Middlebrooks' Monday ruling -- saying Florida's election regulations are a matter for state rather than federal courts -- is worth revisiting for his blunt clarity about the recount mess. Bush, he wrote, "was afforded an equal opportunity" for a recount in counties of his choosing but failed to avail himself of it. He practically laughed out of court the Bush lawyers' argument that a manual count is inherently prone to error and corruption: "The very premise of a manual recount ... is to provide an additional check on the accuracy of the ballot count," Middlebrooks wrote.

In a crucial observation -- overlooked in most news stories but going to the heart of the hand-count dispute -- Middlebrooks pointed out the most precise and compelling reason that hand counts should go forward: Machine tabulation of Florida's paper ballots typically has an error rate of 5 percent, far higher than the minuscule margin by which Bush leads Florida's balloting.

And on Tuesday, Lewis seemed to be almost begging those four counties to continue their hand recounts. It's not hard to see why. Harris moved to cut off ballot-by-ballot counting just as voting officials in Volusia County turned up precisely the sort of error only a careful human review of election results can reveal: an entire bag of ballots -- more than 300 of them -- in the back seat of a polling clerk's car.

Even Volusia County's canvassing board chairman, Michael McDermott, who was until Monday a staunch defender of the machine counts, now admits he was wrong. At the same time, Broward election officials were sorting their way through a possible voting-machine error whose impact could be seismic: 6,600 ballots mysteriously showing no vote for a presidential candidate, apparently because in many cases vote-count machines could not detect a hole punched only partway through. (While some voters are always refuseniks for some office or other, large-scale abstention from the presidential line is almost unheard of.)

By pressing to cut off a careful vote count, Harris and the Bush team are defying public sentiment: According to a new CBS-New York Times poll, fully two-thirds of the public across party lines believes there should be no rush to judgment.

Given this huge public rejection of the Bush camp's false closure, why are Harris and the Govs. Bush insisting on shutting the count down? It's not enough to say that Bush wants to win: Even with the recounts, the long-awaited overseas ballots still put momentum on Bush's side.

There may be another reason for the short-circuited count being shoved down the throat of a reluctant electorate by Harris and the brothers Bush: to forestall exposure of even deeper sleaze tactics.

And in fact, hints of GOP sleaze worthy of the old Chicago Daley machine (the dubious political legacy of the father of Gore campaign manager Bill Daley) are mounting.

Already, it has been revealed that Republican officials in Seminole County solicited hundreds of absentee ballots by Bush voters that lacked required voter I.D.s, and then completed those ballots themselves in defiance of a tough state absentee ballot law passed after Miami's fraudulent mayoral election in 1998. In Palm Beach County, a Republican judge had to recuse himself from Tuesday's case because he was overheard in the elevator promising to clean Gore's clock. And at the national level, the head of Fox News' voting desk, John Ellis, turns out to have spent Election Night consulting with his cousins George W. and Jeb as his network was preparing to call the election. One of the risks for Republicans in a prolonged count is more impropriety floating to the surface.

The legal wrangling will go on at least until Friday, when those overseas ballots are due, and perhaps for weeks after that. And the longer it does, the worse Harris and Bush will look.

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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2000 Elections Al Gore George W. Bush