- The Washington Times - Wednesday, November 22, 2000

NEWS ANALYSIS

The Florida Supreme Court last night may have delivered the White House to Vice President Al Gore.
It is unlikely any federal court will overturn the justices' decision to let arduous hand recounts continue in South Florida, legal scholars say.
Democrats, backed by hundreds of trial lawyers, now have five days to find the 931 votes they need in three Democratic-friendly counties to capture Florida's 25 electoral votes and give Mr. Gore the presidency.
The campaign of Republican George W. Bush has considered making a direct appeal to the U.S. Supreme Court if the state's highest court rejected its request to stop the recounts.
But law professors have said throughout the post-election saga in Florida that federal courts consistently refuse to take cases involving state election laws. The battle for Florida's electoral votes is regulated by state law.
The seven justices, all appointed by Democratic governors, took the Texas governor's fate out of the hands of Florida Secretary of State Katherine Harris, a fellow Republican.
The court said the Texas governor's future is dependent on three counties, their election boards dominated by Democrats, who are deciding chad by chad whether a dimpled ballot is a vote or a mistake.
Gore supporters are confident they can find enough votes to erase Mr. Bush's slim 930-vote lead during a second, and sometimes third, recount of more than 1.7 million ballots in Palm Beach, Broward and Miami-Dade counties.
Republicans bristle at the way the canvassing boards are deciding votes. Two counties at first refused Mr. Gore's request for hand counts, then changed their minds under political pressure.
The rules in two counties for what constituted a vote changed in midstream amid Republican complaints it was done to create more Gore votes.
Mrs. Harris and Mr. Bush's lawyers argued strenuously that the three counties' tortuous hand counts were partisan, late and illegal.
The state's Supreme Court, its spokesman emerging shortly before 10 p.m. to announce possibly the most important decision ever by a state court, faced two primary issues. And on both, it rejected Bush campaign arguments and, in the process, rewrote state law.
First, was the issue of whether Mrs. Harris was correct in not accepting county ballot certifications after post-election seven-day deadline mandated explicitly by state law. The court threw out that deadline and set its own: Nov. 26. In five days, the three counties must discern hanging chad from dimpled chad. Dade County had said the task would take at least five days longer.
Second, the justices ruled the manual counts may continue, again rejecting Mrs. Harris' ruling that the recount was illegal. She said state law allowed hand counts only in cases of fraud or machine malfunction.
Historians may well write that this obscure court in Tallahassee, where the Florida peninsula meets the rural Panhandle, decided the presidency. Whether it was a partisan decision six justices are Democrats, one an independent will be debated in history books as well.
If it reaches federal court, the Bush team argument is that by only recounting four heavily Democratic counties, the process violated the Constitution's equal protection guarantees.
Volusia County was the first jurisdiction to conduct a hand recount and reported the numbers in time for the state deadline Mrs. Harris defended.
Bush backers expressed new worries last night. Palm Beach and Broward counties are well along in their counts. But Dade is further behind. With a five-day deadline, they fear Dade County Democrats may begin rubber-stamping the name "Gore" on contested ballots to put their man over the top before Nov. 26.
"I just hope those counties don't get into a vote-counting frenzy," said Democrat Bob Crawford, a Bush backer and, along with Mrs. Harris, a member of the state's three-member canvassing committee.
The justices gave the Bush side one small victory. They decided not to impose any standard for what constituted an actual vote on a paper punch card.
Republicans feared the high court would order the three counties to accept dimpled ballots a ballot whose chad is not punched through at any corner, but is indented, possibly showing the "intent" of the voter.
The seven justices did cite an Illinois case in which a judge allowed election boards to count indented ballots.
This may be cited by Democratic lawyers during five days of partisan jousting in counting rooms and in the county courts. Democrats plan to press the boards to include as many Gore dimples as possible. After the Nov. 26 deadline, both sides will likely appeal various aspects of the count to the state Supreme Court.
If it turns out that Mr. Gore got the votes he needed, and Mr. Bush is back at the Supreme Court asking that contested dimpled votes be discarded, Florida's seven justices do not appear to be a receptive audience.

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