- The Washington Times - Tuesday, November 14, 2000

NEWS ANALYSIS

Both presidential candidates want judges to tip the teetering Florida election their way, but it has become clear that getting a federal court to override state election law will be far tougher than hand-counting a million ballots by today's deadline.
Three federal court lawsuits have failed. Yesterday, a Bush campaign lawsuit in Miami was rejected, and Democrats suffered setbacks in West Palm Beach and Tallahassee last week.
State law gives Leon County Circuit Court in Tallahassee judicial authority over elections covering more than one county, but no cases were filed there until yesterday, when Volusia County and Palm Beach County asked Judge Terry Lewis to block state certification until recounts are done. Lawyers for the Gore and Bush campaigns joined the hearing that the judge last night delayed until this morning.
Barring a court order by 5 p.m. today, the statewide vote must be certified final without regard to unfinished recounts and subject only to the addition on Friday of ballots mailed from abroad, according to state Canvassing Board members who have the last word.
"There is no discretion," Florida Agriculture Commissioner Bob Crawford, a Democratic member of the Canvassing Board, said at a news conference. "All missing counties shall be ignored and the result shown by returns on file shall be certified. It doesn't say 'may be awarded,' or 'may be certified.' It says 'shall.' "
Mr. Crawford, who pronounced himself a mainstream Democrat despite wandering from a straight ticket this year to vote for Mr. Bush, dismissed suggestions that Secretary of State Katherine Harris, a Republican, has the option to wait.
"It is the canvassing commission and not the secretary of state that actually certifies the votes," said Mr. Crawford, who was joined by panel lawyer Bill Bryant.
Though the campaigns of Vice President Al Gore and Texas Gov. George W. Bush repeatedly swear adherence to "the will of the people," both also support asking courts to govern recounts, to alter official reporting schedules, and even to order new elections that might be restricted to those who voted Nov. 7.
Among those who criticized both sides for going to court were former Clinton Chief of Staff Leon J. Panetta and former Labor Secretary Robert B. Reich.
"I do worry that both candidates and both campaigns are beginning to resort to the courts," Mr. Reich said yesterday in an interview with Bryant Gumbel on CBS' "The Early Show."
"Once you get into the legal thicket … there is simply no end to it. This is not the path for resolution. This is the path for more disorganization and uncertainty," Mr. Reich said.
Mr. Bush wants to shore up his lead of fewer than 400 votes out of 6 million cast in Florida, while Mr. Gore wants to test that photo-finish margin by letting officials determine "voter intent" from disqualified ballots.
Both camps say civil rights are at stake in ways that justify trumping the letter or interpretation of state laws because the stakes are so high. No matter how slim the margin, whoever wins Florida becomes president on Jan. 20.
While advocates for both sides slugged it out yesterday in state courts at West Palm Beach, Daytona Beach and Tallahassee, two titans of constitutional law Reagan administration legal adviser Theodore B. Olson and Harvard law professor Laurence Tribe tangled in Miami federal court, where the Gore campaign won the first round.
U.S. District Judge Donald T. Middlebrooks a 1996 Clinton appointee denied Mr. Bush's request to block repetitious hand recounts in four heavily Democratic counties because they could produce a lopsided boost for Mr. Gore.
"While I share a desire for finality, I do not believe it is served" by removing it from the hands of state officials and state courts, Judge Middlebrooks ruled, abiding by a federal tradition of keeping hands off state elections.
Judge Middlebrooks was perhaps mindful of Supreme Court Justice Lewis Powell's words when the court refused to tinker with the 1986 Alabama gubernatorial primary in which Democratic officials designated the losing candidate, a mainline party stalwart, as its nominee. Even the certainty of "irreparable injury" to the man who got more votes was not sufficient to justify intruding in a state matter, Justice Powell said.
"We appreciate the fact that the judge listened," Mr. Olson said, hinting he might ask the U.S. 11th Circuit Court of Appeals in Atlanta to revive his lawsuit. "He knows there are other judges at a higher level waiting to hear the case, to make a decision to stop the process."
Mr. Olson believes federal courts should settle such disputes because court precedent may conflict from one state to another.
"The federal remedy is the appropriate way to go," he said.
Former Secretary of State Warren Christopher, who heads the Gore team in Florida, said that despite support for Democratic lawsuits in Palm Beach County last week, his side really wanted to stay out of court until Mr. Bush's lawyers made the first move.
"And I emphasize that we are making our move in the state court, not in the federal court," Mr. Christopher said yesterday.
The Bush lawsuit contended that selective recounts in Democratic strongholds violate civil rights by diluting the vote of others, deny "equal protection" to voters elsewhere in the state whose ballots are not recounted, and pursue such a course without "due process."
The suit claimed that selective recounts violate the Constitution's First and 14th amendments and flout a 19th-century law that punishes violation of civil rights under color of government authority.
"Simply stated, under Florida's scheme, identical ballots in two different counties will be treated differently," argued the petition filed by Mr. Olson, who served the Reagan administration as head of the Justice Department Office of Legal Counsel, advising the president and attorney general.
"This is plainly impermissible," he said. "Voting is a fundamental right that cannot be subject to arbitrary or inconsistent treatment."
Democrats countered with an uncustomary defense of state sovereignty, saying the Constitution leaves to the states the prerogative of setting procedures to choose electors who cast ballots in the Electoral College.
"The Framers recognized that the individual states had a right to organize and administer elections in the manner that best reflected the will of their respective citizenry," said the Democrats' reply, filed Sunday night.

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