I'm on the phone with former Florida Supreme Court Justice Gerald Kogan when I get an e-mail alerting me that his one-time colleagues have just dismissed Secretary of State Katherine Harris' motion to block counties from conducting manual, or "hand," recounts. The decision, in effect, allows the recounts to proceed, much to the chagrin of Gov. George W. Bush.
I tell Kogan the news. He is not surprised.
A registered Democrat appointed to the bench in 1987 by then-Gov. Bob Martinez, a Republican, Kogan says that in his personal opinion, "Any recounts [that] registrars feel are necessary to get an accurate tabulation certainly should prevail."
This isn't politics, Kogan says. It's Florida law, which might not be good news for the Bush campaign in its attempts to block the hand recounts.
With Bush rejecting Vice President Al Gore's Wednesday night proposal for some finality in this election -- wherein hand recounts in every county in the state would be completed with the promise of no further litigation from his side -- the Florida Supreme Court may end up being the final venue for the debates over this election.
That appeared even more likely after Harris announced Wednesday evening that she was rejecting the request of four Florida counties for extensions on reporting election results past the previous day's 5 p.m. deadline. The counties wanted to report amended totals based on the hand recounts. The Gore camp, which has charged Bush-backer Harris with making partisan decisions, is sure to launch legal challenges to her latest move.
The Florida high court's involvement in the rapidly evolving situation began on Wednesday morning, when it was called out of its bunker and asked to stroll into the hurricane where torts, briefings, rulings, chads and threats of even further lawsuits are being strewn about in the electoral maelstrom that is tearing up the Sunshine State.
Harris, the co-chairwoman of Bush's Florida campaign, asked the state Supreme Court to consider two requests: to suspend all hand recounts until their legality could be ascertained, and to consolidate all of the lawsuits in the state into one courtroom.
Harris asked, however, that all the lawsuits be consolidated elsewhere -- namely, in the Leon County Courthouse, a lower-level court in Tallahassee.
Harris may have made this request because the state Supreme Court is thought to lean left. The late Gov. Lawton Chiles, a Democrat, appointed six of the court's seven justices, and the seventh was appointed by then-Gov. (now Sen.) Bob Graham, also a Democrat.
Intriguingly, hours after Harris threw up this legal hurdle for the forces attempting to conduct the hand recounts, representatives of the Gore campaign also indicated their desire for the state Supreme Court to jump in.
"We like the idea of consolidation," one Gore attorney said.
But the Gore team wanted the state Supreme Court, rather than a lower court, to tackle the mishmash of legal questions. After all, they argued, the case will end up being bumped from Leon County Court up to the state Supreme Court sooner or later.
As Gore's man in Tallahassee, former Secretary of State Warren Christopher, said Wednesday morning, "We will ask the Supreme Court itself to resolve these critical questions: First, whether the hand counts now ongoing are appropriate under Florida law, and if so, what is the deadline for their completion? Second, what are the standards for determining if a vote has, in fact, been cast, and whether a county-wide hand count is justified?"
Added Gore attorney David Boies, formerly the Justice Department's lead trial lawyer in the Microsoft antitrust suit, "This really is a matter at this stage for the Florida Supreme Court. The Florida Supreme Court has been very protective over the years in its citizens' right to vote, and making sure that the vote, as the court said in a recent opinion, is not only made but heard."
But Christopher, Boies and the Gore legal team ended up filing no such papers. Half an hour before they were to file their brief to the Supreme Court, the court ruled against Harris' motion.
They'd had a good day, they felt. Broward County had resumed its hand count, Palm Beach County's canvassing board had been told by a judge that it could assess various permutations of "chads" -- dimpled, swinging, hanging or otherwise -- as it saw fit. And the Supreme Court had knocked back yet another attempt by Harris to put an end to the hand recount.
As night fell on Tallahassee, the Gore team was still unsure whether it would present any filings to the Florida Supreme Court.
Would they pursue their previously declared intentions to bring the court into the fight?
"We need to sleep on it," one of the Gore lawyers said.
The Bush team needed no such time to mull. Wednesday afternoon, Bush attorney Barry Richard made it clear that the Bush campaign had no desire for the state Supreme Court to pick up the various legal strands.
"There have been actions filed in the Supreme Court by the secretary of state and ... by Volusia County," Richard said. "It is my opinion that the Supreme Court has no jurisdiction. If the Supreme Court should determine that it has jurisdiction, I think it will have to do so by recognizing a source of jurisdiction that it has never heretofore recognized ... The parties cannot confer jurisdiction on the Supreme Court by compromise or by agreement. The Supreme Court's jurisdiction is clearly set forth in the Florida Constitution and it is very narrow."
But not everyone agrees that things are so "clearly set forth." At least Kogan, the former justice, doesn't. "Barry Richard is a great lawyer and a good friend of mine, but I have to disagree with him on that point," he says. "I would think the Supreme Court can have jurisdiction whenever and wherever it says it has jurisdiction."
But the Florida Supreme Court will probably end up playing a role, as at least one stop if not the final resting place for other litigation. And the Gore team is still considering bringing the justices into the fray.
"There's a very good likelihood that it will" be heard by the state Supreme Court, says Kogan.
So what does this mean for the future of our republic?
"Under the normal venue rules, the cases would stay in Palm Beach or Broward or Miami-Dade," says Johnny Burris, a Florida constitutional law professor at Nova Southeastern University's Shepard Broad Law Center in Fort Lauderdale. "That would be the normal rule. But these are not normal times."
"To the extent that this is framed as a right-to-vote issue, the court should be very interested in hearing the case," says Joseph Little, a professor of state constitutional and governmental law at the University of Florida College of Law for the last 33 years. "The court has been very interested and protective of Florida citizens' rights to vote; it has shown a great interest in the integrity of balloting."
That said, experts say a legal process is necessary before it can jump to the Supremes.
"It seems to me there's a step in the process before they get jurisdiction," Burris says. Even if the court agrees to consolidate the legislation and hear the big lumpy case, it would need to assert its jurisdiction. The process would involve moving the cases from Circuit Court right to the District Court of Appeals. That court would then have to certify that the disposition of the cases is a matter of great importance to the public, and only then would it hop onto the Supreme Court docket.
"It could happen very quickly," Burris says. "It could be in a matter of hours."
Ironically, though Bush-backer Harris presumably would rather not let the state Supreme Court be the great consolidator, by asking it to rule on the validity of the hand recount she may have opened the door for the state's high court to take jurisdiction over it all.
"She's admitted that the Supreme Court has jurisdiction by doing that," Kogan says.
Harris' acknowledgment of the court's jurisdiction "is part of the calculus" in the Gore legal team's decision-making process, says a Gore lawyer.
Now that Harris has effectively established that she thinks the Supreme Court has jurisdiction, the Gore Recount Committee has high hopes that the court will consolidate the litigation and rule on it all. The Gorebies think that this will be good for their side, at least at this stage in the legal battle. And, according to state legal observers, these hopes are not unfounded.
"That's the problem with the Bush position, his saying that we've counted the votes twice and this should be over," Burris says. "Florida law clearly authorizes hand canvassing. The fact that it's going on in counties is perfectly lawful."
According to Florida law, therefore, it's irrelevant if the Bush team thinks there's been enough recounting.
"Most of us [in the Florida legal community] seem to agree that basically the law of Florida allows for a recount manually," says professor Leonard Pertnoy, who teaches civil procedure at Miami's St. Thomas University School of Law. "The issue is not whether or not there's a right to manual recount but when must that manual recount be in."
Harris argued that state statute mandated that recounts had to be finished by Tuesday at 5 p.m., so anything submitted to her office afterwards could be discarded like so much spent chad.
But while Harris "has a point" in her citation of the statute mandating the Tuesday 5 p.m. deadline, Burris says that the Supreme Court will likely find that to be a "nice general guideline" but one that is inapplicable in this case.
The debate seems to come down to a question of two competing rules of law -- the Florida statute Harris cites as demanding finality and mandating a deadline vs. the state Constitution's declaration of rights, which includes the right to vote.
All of the legal scholars interviewed predicted that the court, if brought into the battle, will side with the latter.
"And the right to vote implies the right to have your vote counted," says constitutional law expert Little, arguing that the court will brush aside the statute cited by Harris as less important. "I don't think it would matter if it were Democrats or Republicans asking for this right to be upheld."
Burris concurs. "I have read, I think, all of their cases dealing with election disputes and voting issues," he says. "And it's clear that the court is very concerned that, to the extent that people took the time to cast their ballots, their ballots need to be counted as fairly and accurately as provided under Florida statute."
"The reason why Democratic Party partisans are winning on many of the issues they're raising is because these are counting issues," says Burris. "Machines are used for counting for efficiency -- not accuracy. So if this goes to the Supreme Court, there's a real chance they could be successful in terms of the right to have these votes counted."
Whether there will be enough votes to elect Gore, says Burris, is "a different question."
Pertnoy adds that the chronological order in which the Legislature passed the laws mandating the deadline and allowing for recounts strengthens the Gore argument. "The portion of the law that the secretary of state cited passed 11 years prior to the subsequent legislation, a portion from which allows for a recount," he says. "They never went back and changed the time frame" -- so as to allow for more breathing room before the deadline -- "so the issue is if the counties are allowed a reasonable amount of time to conduct their recount. When the Supreme Court is asked to interpret inconsistencies, the later legislation's intent is generally given deference."
Additionally, the state Supreme Court's point of view about the importance of the right to vote puts added pressure on Harris to accept the hand-recount numbers that come after Tuesday's deadline.
"If she takes action to exclude votes that were cast, that's going to be put under a microscope," Burris says. "I have real doubts about that being held up by the Supreme Court."
"We're in uncharted waters here," Kogan says. "Suppose the Supreme Court came out and said, 'Katherine Harris, you're right, you can cut off the acceptance of hand counts.' But what happens if these counties are finished with their hand counting, and they want to submit new counts that show that Gore carried Florida? The court is going to favor the will of the voters. Exactly how they're going to rule other than that, there's no way to tell."
Asked if the Bush campaign should be concerned that the court is packed with Democratic appointees, Kogan says, "As I know the people on the court -- and I know them very well -- they shouldn't be worried about that at all. The court will do what they feel is right and correct regardless of their political affiliation."
Almost definitely not. Burris suggests that the court might enact its "equity powers," allowing hand recounts throughout the state's 67 counties and not just in the urban, Democratic strongholds of Palm Beach, Broward and Miami-Dade counties. Such a decision might be bad news for Gore, though on Wednesday night Gore himself said that would be OK with him if Bush so desired. But were the state Supreme Court to take up the matter, he might not have a choice.
Moreover, Gore's offer to quell all further litigation as long as the hand recounts are allowed to continue is probably rooted in pragmatism more than in magnanimity.
According to the scholars interviewed, legal challenges the Gore Recount Committee might make about Palm Beach County's supposedly confusing "butterfly ballot," for instance -- which some who want a revote have argued was an illegal ballot -- would probably go nowhere.
"That case is a very hard case" to prove, Little says. "The underlying case law in Florida has held that the mere fact that some voters complained about a ballot or a machine they found somewhat confusing is not grounds for invalidating an election or calling for a new vote."
Burris points out that "case law in Florida clearly cuts against any successful challenge to the 'butterfly ballot' call for a revote. The standard is: 'Did you substantially comply with the statute?'" And Palm Beach County did, he says.
If Bush rejects Gore's offer, and the court agrees to shake out this rug, one of the justices in the spotlight -- one of the most recently named to the court -- will be Peggy Ann Quince, who was named to the court in November 1998.
Quince was named as Supreme Court Justice Ben Overton, then 70, was being forced out of the Tallahassee courtroom by a mandatory retirement provision in the state Constitution.
There was a question about who would pick Overton's successor. Then-Gov. Chiles was on his way out of office himself; his handpicked successor, then-Lt. Gov. Buddy MacKay, had just been defeated by Jeb Bush in the November election. Overton's term was set to expire on Jan. 4, just as Jeb Bush was scheduled to be sworn in.
Would Chiles name Overton's successor before Bush was sworn in? Would Gov.-elect Bush? For a spell, it looked as if the two would end up in court to hash it all out.
Instead, Chiles let Bush interview the four nominee finalists for Overton's slot on the court, in the hopes that they could agree on one.
They did, selecting Quince of the 2nd District Court of Appeals. Once appointed, the highly regarded Tampa judge became the first black woman to serve on the state Supreme Court.
That kind of bipartisan cooperation seems completely foreign in the current state of American politics.
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