A Shifted Battleground
Harris Makes Gore Case Harder; Gore Takes
a Big Gamble
Florida Secretary of State Katherine Harris rejected the reasons three counties gave in asking for more time to conduct presidential vote recounts by hand. (Pete Cosgrove/AP Photo)
Analysis
By Terry Moran and Mark Halperin
Nov. 16 — Florida’s secretary of state changed the legal landscape Wednesday night. And, by doing so, she increased the legal hurdles Vice President Al Gore must now overcome.
On Wednesday night, Katherine Harris rejected the reasons three counties gave in asking for more time to conduct presidential vote recounts by hand.
“The reasons given in the requests are insufficient to warrant waiver of the unambiguous filing deadline imposed by the Florida Legislature,” she said.
The counties had argued, among other things, that there were discrepancies in previous machine counts or that they simply had too many ballots to deal with fairly by Tuesday’s deadline.
Harris said the only other votes she would now consider were from absentee ballots from overseas, due in the state by midnight Friday.
Harris may well be on firm legal ground. As the appropriate, statutorily empowered official, she has exercised the discretion the law grants her. She has given specific reasons for her actions. Those reasons are clearly not grounded in racial bias, mere whim, sheer irrationality, or other factors that would give legal grounds for challenging her decision.
Thus, the law generally presumes the courts will give due deference to her exercise of power in this matter.
A Question of Abuse
To make their case, lawyers for Gore would have to show Harris abused her discretion — a very tough standard to meet.
They would also likely have to argue that her interpretation of her responsibility in this matter is so out of line with the letter and spirit of the law that the courts must take the rare step of reaching into the executive branch of Florida’s government and forcing a duly empowered official to change policy.
It could happen, but it wouldn’t be easy in the courts — regardless of any victories Gore may have achieved in the court of public opinion.
By today, Texas Gov. George W. Bush was leading Gore in the official Florida count by 300 votes. Gore supporters had hoped the manual recount might put Gore over the top, giving him Florida’s crucial 25 Electoral College votes and making him, not Bush, president.
Gore’s Gamble
Gore took an apparent gamble Wednesday night when he vowed not to challenge the results of Florida’s final presidential vote tally if hand recounts of the ballots were allowed to proceed in the three contested counties.
Despite the conciliatory tone, though, Bush’s team was no more likely to accept Gore’s proposal than Gore’s team was to accept an earlier one by Bush.
“Both sides made proposals they knew full well the other side couldn’t accept,” said ABCNEWS political analyst George Stephanopoulos.
Earlier this week, the Bush campaign proposed that both sides drop all legal action and abide by the Florida vote count once absentee ballots are counted and added to the current statewide tallies. The Gore camp rejected the proposal.
Deflection and Risk
Gore’s proposal seemed to deflect two bits of criticism from the Bush side. By also proposing the Republicans be allowed a recount in all of Florida, the campaign may have hoped to put an end to the charge that the hand recounts are “selective.” By saying the recounts would likely be finished within seven days, Gore set an implied timetable — addressing accusations the Democrats were letting the process drag on needlessly — but without naming an exact date.
In addition, Gore suggested two meetings between him and Bush: one before the final tally to improve the tone on both sides and issue a call for national unity — a seemingly noble gesture — and one after. But Bush was unlikely to accept an invitation on Gore’s terms. Indeed, on Wednesday night he said he would meet with Gore after, not before, the election is concluded.
Aides to the vice president also pointed out privately to ABCNEWS that Gore’s proposal included risk. Because Gore has said he will give up on all legal action, it would cut off his options if Secretary of State Harris, as promised, certifies the state’s votes over the weekend.
It also gives up on some 19,000 ballots in Palm Beach County thrown out because they were marked with more than one vote for president, as well as another 3,000 ballots that were allegedly mistaken votes for Reform Party candidate Pat Buchanan there.
Mark Halperin is political director and Terry Moran is a correspondent for ABCNEWS who has covered legal matters for more than 10 years.
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