- The Washington Times - Friday, November 24, 2000

Despite all the flak Secretary of State Katherine Harris has been getting because she is a Republican and therefore believed to be partial to George W. Bush, the real partisan story to this Florida election mess, as reflected by Tuesday night's appalling Supreme Court decision that appears to permit a Ouija Board standard for determining voter intent, is how the Democrats have exerted their push-and-pull on the state's electoral crisis.

The first clue to the Democrats' game plan came last Thursday when the Gore case before Leon Circuit Judge Terry P. Lewis, a Democrat, was argued in part by Dexter Douglass, whose familiarity as a great trial lawyer paled before the likes of David Boies and other big-name Democratic lawyers. But Mr. Douglass was an important partisan in the judicial arena, having served as general counsel to the late Gov. Lawton Chiles, a post overwhelmed with enormous legal and political duties, including assistance to the governor on judicial appointments.

In fact, Judge Lewis, a county judge until appointed by Mr. Chiles in 1998 to the Leon County Circuit Court, might well have been reminded of Mr. Douglass' ties to the former governor when Mr. Douglass graced the court with his presence, and old-boy euphemisms, last Thursday. Little wonder that the gray-haired Mr. Douglass appeared again on Monday before the state's Supreme Court for the utterly superfluous purpose of introducing David Boies to the seven honorables again, perhaps a reminder that Mr. Chiles had appointed six (one jointly with Gov. Jeb Bush) of the seven justices who would rule on the most important case in the Sunshine State's history.

And Mr. Chiles and Mr. Douglass, as Florida political pundits know, were longtime and close friends, after first having met as teen-agers at Florida Boys State in Tallahassee in the 1950s. And no matter the hype about how great this Florida Supreme Court is in terms of its members, two never served as judges before elevation to the high court.

Monday's televised Supreme Court session gave one more clue to what the court was looking for, no matter Bush attorney Barry Richards' short, but clear and convincing lecture on the necessity for the high court to respect the sanctity of separation of powers and the responsibility of an elected official, absent an obvious finding of wrongdoing, to carry out Florida's election law. That clue was whether there was a way to buy time, to make certain the voters were not disenfranchised (that's the bloody flag in the myopic vision of the Gore team), so that all those bewitched, bothered, and bewildering ballots could be counted before the Electoral College deadline of Dec. 12. But it was comforting to know that one justice was certain that voter intent could be ascertained, although the fine points of arriving at this conclusion weren't referenced:

"We've had cases dealing with this issue in Florida since the 1800s," said Justice Major Harding. "And all of them, in some way, shape or form, come about because voters do not follow instructions. And in all those cases that I have read, when you can look at the ballot, even though it is improperly marked and even though the voter did not follow the instructions, but you can tell the intent of the voter from the ballot, that that vote has to be counted."

The hypotheticals posed by some of the judges to the Bush lawyers were outrageous even to non-lawyers, including the one about the dunce candidate who waits until the sixth day of a seven-day deadline to ask for a hand recount and then finds it can't be done (Hello?), implying therefore that the laggard is deprived of rights under the statute. My favorite hypothetical was the one about the canvassing board that disappeared after the election, with the week deadline passing in the interim, a scenario about as likely as a meteor hitting the top of the Washington Monument tomorrow at 11:07 a. m. And the emotion of the judges toward the Bush team was about as subtle as a Category 3 hurricane, with David Boies getting the reception of a dignitary to the august chambers.

Fortunately, this isn't the last word to this election and constitutional crisis, and it is likely to backfire, given the legal stretch that the justices made and by a unanimous decision to Florida's mess. Indeed, the fat lady of justice and fair play hasn't even begun to practice her scales, let alone sing in this political opera. The sad thing is how much this kind of publicity is embarrassing to the state. It's one thing for Florida to be heralded as the home of Mickey Mouse and Goofy. It's quite another for it to be known as a legal wasteland.

Thomas V. DiBacco, professor emeritus at American University, lives in Palm Beach.

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