- The Washington Times - Friday, December 1, 2000

Today, the Supreme Court of the United States will hear oral arguments in a controversy that threatens to divide our nation. It is indeed fortunate that the highest court of our land has agreed to hear the challenge to the Florida Supreme Court's post-election decision to order that the hand recount in three heavily Democratic counties continue beyond the statutory deadline and be included in the final tally of votes.

The Democratic nominee contends that the controversy over Florida's election raises no federal question and, therefore, should not be decided by a federal court. In taking this position, he ignores the clear language of Section 5 of Title III of the United States Code mandating that electors must be chosen in accordance with rules in place prior to election day and Article II, Section 1 of the United States Constitution which provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."

After he lost the original Florida count and the machine recount, the Democratic nominee selected three heavily Democratic counties (out of 67 in Florida) and demanded a hand recount that would be controlled by Democrat-dominated election boards and then convinced the Florida Supreme Court to disregard the statutory deadline for certification imposed before the election and, in violation of Article II, Section 1 of the United States Constitution, to substitute a court-imposed date.

This rewriting of the Florida statutes not only violates the United States Constitution and federal law, but also has led to the implementation of a fundamentally flawed recount process governed by different standards in different counties. The hand recount in Palm Beach County and Broward County (Miami-Dade chose to end its recount) proceeded pursuant to different and constantly changing rules, degenerating into the examination of "dimples" and "pregnant" chads in a subjective and virtually impossible effort to determine the intent of voters who cast their ballots weeks ago.

We as a nation are now confronted with the extraordinary fact that the results of Florida's state court litigation might determine the outcome of a historically close national election for our highest office. This is particularly disturbing because the hand recount has been conducted pursuant to different standards in different counties adopted after the election. This could result in a different counting of ballots which are the same in every respect except the county in which they are counted. Even more disturbing is the fact that the hand recounts have been administered in two heavily Democratic counties by Democrat-controlled election boards who know that subjective decisions about the elusive intent of voters will determine the result of the election nationwide.

In granting certiorari, the U.S. Supreme Court declined to consider the equal protection argument. That issue has special appeal since the Democratic nominee has sought to find a few hundred votes to overcome his opponent's lead.

In this extraordinary context, a few hundred votes, found after the original count and recounts, would far outweigh in importance the votes of Florida's other 64 counties and the votes from the other 49 states.

That hardly comports with equal protection. While not technically before the high court, that backdrop certainly weighs heavily as an equitable factor. The controversy swirls on three levels: an accurate count; the applicable law; and political considerations. With the vagaries of the butterfly ballot, dimples and chads, an unimpeachable count is a practical impossibility. The statutory, constitutional and case law lead to conflicting conclusions. The political overtones are obviously heavy at all levels.

In this highly charged atmosphere, we can be thankful that the Supreme Court of the United States has agreed to rule on this case. This provides the best assurance that the rule of law will be respected and the decision of our nation's highest court will be accepted by all parties and finally bring closure to the American people.

Arlen Specter is a Republican senator from Pennyslvania.

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