Katherine Harris lays down the law

The Florida secretary of state says she might accept hand recounts -- but then again, she might not.

By Jake Tapper

Published November 15, 2000 3:23AM (EST)

For a woman who doesn't seem to think we have a second to spare before the winner of Florida's presidential contest is declared, Secretary of State Katherine Harris sure takes her time getting to her 5 p.m. press conference on Tuesday.

Finally, at 7:35 p.m. she walks in -- dress, lipstick and pumps all precisely coordinated to the same regal maroon hue.

Harris has taken her share of hits in the last few days. She's been tarred by Democrats as a "hack," a "lackey" for Gov. George W. Bush, and as "acting in the finest tradition of a Soviet commissar," in the words of Chris Lehane, a spokesman for Vice President Al Gore. According to Gore campaign chairman William Daley, "the Bush campaign and Secretary Harris have engaged in a variety of tactics to block or to slow this count: lawsuits in federal court, unfounded orders by the secretary of state."

And indeed, Harris's earlier statement that she would refuse any recount numbers that arrived in her office subsequent to the Tuesday close-of-business deadline was applauded by the Bush campaign -- whose Florida effort she co-chaired, and on whose behalf she visited New Hampshire during primary season last January.

Additionally, Harris wrote a letter to the state GOP chairman -- one released to the public at large, mind you -- in which she questioned the very legality of hand recounts taking place when there was no evidence of computer malfunction. This put an immediate end to the Tuesday hand recounts in Palm Beach and Broward counties. The Gore campaign, joined by the state's leading Democrat, attorney general Bob Butterworth -- Gore's state chairman -- had argued that the ballots' not registering every hole punched (the fabled "hanging chad" of unrecorded, or "undervoted," ballots) was necessity enough for the recount. For both actions, Harris received gator-sized rhetorical chomps from Dems up and down the peninsula on Tuesday.

That said, Harris seems calm and collected as she walks in to tell the world that all 67 counties have filed their returns as of Tuesday at 5 p.m., and according to those returns Bush leads Gore by 300 votes -- 2,910,492 to 2,910,192.

The deadline that has just passed was fiercely contested. Democrats had sought an injunction granting an extension to three largely Democratic counties -- Palm Beach, Miami-Dade and Broward -- that requested extra time to hand recount their results. Harris had maintained that the law didn't allow her to do so.

But earlier Tuesday, Leon County Circuit Court Judge Terry Lewis slapped both the Democrats and the Republicans (if only such a slap could be literal and not figurative!), denying the Democrats' request for an extension but also dissing Harris for shirking a decision that he ruled was indeed within her power to make.

Harris had earlier argued that only an emergency like a hurricane would allow her to extend the deadline. "But a close election," she had written, "regardless of the identity of the candidates, is not such a circumstance; the law provides for automatic recounts, protests and manual recounts, and it plainly states when this process must end." In his ruling, however, Lewis disagreed.

At her press conference this evening, Harris acknowledges Lewis' decision and leaves open the possibility that she might, in fact, accept later hand-recount totals if they come -- though she offers no guarantee.

The three Democratic counties "may be contemplating submitting amended returns based on manual recounts not completed as of today's statutory deadline," Harris says.

"Within the past hour, the director of the Division of Elections" -- Clay Roberts, a Harris appointee and also a Bush backer -- "faxed a memorandum to the supervisors of elections in these three Florida counties," she continues. "In accordance with today's court ruling confirming my discretion in these matters, I am requiring a written statement of the facts and circumstances that would cause these counties to believe that a change should be made before final certification of the statewide vote."

The final certification will come Saturday, after the midnight Friday deadline for overseas absentee ballots. The deadline for the excuse letter from the three counties is 2 p.m. Wednesday, Harris says.

"On advice of counsel, I will not take questions because of pending litigation," she says. And the litigation does indeed pend.

Now we all can see what President Clinton was talking about when he said that his fate rested on the differing definitions of the word "is."

Because once the lawyers got involved, parsing became the language itself. Throw the manipulations of various political operatives into the mix and you have a recipe for true disaster, U.S. of A. be damned.

First it was the difference between hanging, swinging, tri- and dimpled (or pregnant) chads.

Then the fate of the nation came down to the difference between "may" and "shall."

Could Florida Secretary of State Katherine Harris accept any ballot counts after 5 p.m. Tuesday? She said no. Democrats said yes.

"If the county returns are not received by the Department of State by 5 p.m. on the seventh day following an election," Florida statute 101.111 (1) reads, "All missing counties shall be ignored and the results shown by the returns on file shall be certified." (Emphasis added.)

However, states Florida statute 102.112 (1), "If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department." (Emphasis added.)

Therefore, Judge Lewis determined that the "may" shall rule the day -- and that it will be up to Harris' discretion whether she accepts any counts after the Tuesday deadline.

Democrats hope that such a ruling will force Harris, a fervent Bush backer, to accept any subsequent ballot counts. Otherwise, says one Gore legal advisor in Florida, she runs the risk that her decision will be seen as "legally suspect and hard to explain to the people of Florida. She has been ordered by Judge Lewis to take [any post-deadline] returns under consideration."

But the pressure on Harris is coming from every which way. After Harris' appearance Tuesday evening, Bush communications director Karen Hughes doesn't quite applaud the secretary of state's announcement that she may consider post-deadline recount numbers.

"It appears that we now have a deadline that may not be respected as a deadline at all," Hughes says Tuesday evening. "Several selected counties in Florida, controlled by Democrats, have said they may continue a manual count. Yet if they go forward after tonight's deadline, these counties are no longer recounting. They are reinventing. Attempting to reinterpret the results of the election and the intentions of voters, by subjective -- not objective -- means."

Hughes must be forgetting that provision of the 1997 Texas law that Bush himself signed, not only allowing manual recounts but even allowing vote counters to use subjectivity in assessing "any clearly ascertainable intent of the voter."

Hughes says that manual recounting as it's being conducted in Florida -- differently in different counties -- "does not produce a fair and accurate count."

If manual recount numbers come in later this week, and Harris allows them, and they give Gore a margin of victory, it is unthinkable that the Bush team will not challenge them in court.

Not that we're wanting for lawsuits now. On Tuesday, Volusia County -- joined by the Gore team -- appealed Judge Lewis' decision to deny the extension. The case may end up in the Florida Supreme Court.

Then there was Monday in Miami, where a suit by the Bush campaign to stop the hand recount altogether was denied by U.S. District Judge Donald Middlebrooks, a Clinton appointee. The Bushies have appealed to the 11th Circuit Court of Appeals in Atlanta.

Other local court rulings in Palm Beach and Broward determined that the county canvassing boards did not have to abide by Harris' previous written opinion that hand recounts under such circumstances were illegal.

Palm Beach was set to recommence hand counting Wednesday at 7 a.m. EST. Broward was also slated to do so, but the county canvassing board asked the state Supreme Court to render an opinon as to which interpretation of hand recounts was valid, Harris' or Butterworth's.

"It is time to end these tactics and move ahead to what we all want, and that is a timely count of these votes," Gore representative Daley says at a press conference he calls after Harris speaks.

But the truth of the matter is that running alongside the Democrats' legitimate arguments in favor of a full and accurate manual recount lurk the darker impulses of trial lawyers, who envision even more possible lawsuits beyond an extended deadline for hand recounts.

So Tuesday I ask a Gore legal advisor in Florida what other lawsuits there might be. Will the Gore campaign sue Palm Beach County for its confusing "butterfly ballots"? Will the Gorebies claim that the ballots were illegal, thus necessitating a revote in the county? "Our options are under review there," the Gore lawyer says. "Our first option is trying to get these votes counted."

I try again. What would he say to the American people who, according to polls, think there should be a full recount, by hand if necessary, but aren't prepared to go beyond that?

"I would just say to the American people that the ballots would be counted in Florida today if not for the legal and political issues to stop the count, the responsibility for which lies at the feet of the Republican Party," he says.

OK, fair enough, but what about beyond that? What if you get that and Gore still doesn't win? Are you prepared to call it a day?

"Let's get the votes counted and see where we go from there," the Gore lawyer says.

Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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2000 Elections