- The Washington Times - Thursday, November 16, 2000

Florida Secretary of State Katherine Harris, a Republican, and Attorney General Bob Butterworth, a Democrat, have staked out opposing positions on a key Florida election law and must defend them today to the state Supreme Court.

Mr. Butterworth, Vice President Al Gore's state chairman, appears to have violated his own oft-repeated rules and policies by issuing a legal opinion that contradicted a Harris ruling in a way that would help his own candidate.

Unless overruled by a court, such opinions can have the force of law.

Yesterday Mrs. Harris one of eight state co-chairmen for Texas Gov. George W. Bush asked the Florida Supreme Court to help clarify that it was her responsibility to issue such opinions on election law and that Mr. Butterworth was operating in an area where he had no authority.

The court said it would accept legal briefs on that question today from Mrs. Harris and Mr. Butterworth as well as from lawyers for the campaigns of George W. Bush, Vice President Al Gore and the Palm Beach County Canvassing Board.

Palm Beach County officials want the court to use its power to oversee elected officials and decide which of "two conflicting legal opinions" it should abide by.

Mr. Butterworth's Web site seemed to support contentions that he violated his own policies. It has a public notice that he does not issue opinions "on a question falling within statutory jurisdiction of some other state agency… . Questions arising under the Florida Election Code should be directed to the Division of Elections in the Department of State."

Bush campaign spokesman Ari Fleischer said Mr. Butterworth's intervention "violates his own written standard [that] he has neither the authority nor the jurisdiction to provide advisory opinions on election issues."

Butterworth spokesman Joe Bizarro disputed that, saying the attorney general is not required to defer to the Elections Division but it is his "general policy" to do so.

"He has discretion. He absolutely has the authority to issue that type of opinion," Mr. Bizarro said yesterday. "He felt an obligation as the state's chief legal officer that an opinion not supported by state law would go out there unchallenged."

Mrs. Harris' Supreme Court filing, charging that Mr. Butterworth created uncertainty about who is in charge of elections, is the first known official claim of a conflict of interest in the chaotic attempt to discern a winner in the Florida presidential race.

"It is unproductive and confusing for contradicting opinions to issue from constitutional officers," Mrs. Harris said, telling the justices that even the attorney general's official Web home page "disclaims any authority … to issue opinions on elections law."

In her opinion numbered 00-11 on Monday night, Mrs. Harris told Palm Beach County Judge Charles E. Burton, chairman of the county's canvassing board, that the "error in voting tabulation" must involve actual failure of equipment, not a poor punch of a ballot.

On Tuesday morning Mr. Butterworth dispatched his advisory opinion to Judge Burton, saying that Opinion 00-11 was so "wrong in several respects" that he had decided to issue his own Advisory Opinion AGO 2000-65.

Mr. Butterworth ruled a recount may be prompted by "failure of a properly functioning mechanical system to discern the choices of the voters as revealed by the ballots," indicating that canvassing officials could determine voters' intent when ballot chads were not fully punched out.

Mrs. Harris' Supreme Court filing included two letters by Mr. Butterworth earlier this year in which he maintained that such election-law rulings are strictly within the purview of Mrs. Harris.

"I regret to inform you that the Attorney General's Office does not have jurisdiction," said a May 30 letter replying to an inquiry. "The Department of State, Division of Elections … appears to be the appropriate authority."

In an unrelated case on June 5, he refused the request of Fort Lauderdale City Attorney Dennis Lyles to resolve an issue, deferring to Mrs. Harris' office "since resolution of this issue necessarily involves the interpretation of the Florida Election Code."

Gov. Jeb Bush, chairman of brother George W. Bush's Florida campaign, stepped aside and ruled himself ineligible to make any decisions, contacts or statements involving the disputed election.

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