Gore leaves no room for appeal
to Supreme Court
By Frank J. Murray
THE WASHINGTON TIMES
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FORT MYERS, Fla. — Vice President Al Gore appears
to have staked the presidency and his future political career
on today's all-or-nothing legal strategy of attacking Florida's
state government and its lower courts.
His legal briefs to Florida's
seven Supreme Court justices —
each of whom reached the court
with backing by Democratic
governors — did not appear to
raise a federal issue that would
allow appeal to the U.S. Supreme
Court should his argument be
rejected.
Instead, the vice president and
his huge legal team pinned
everything on the single question of
whether Florida Secretary of State
Katherine Harris broke state laws by excluding late recounts
from certified election totals, and by issuing binding opinions
that ruled out hand recounts.
Mrs. Harris, a Republican who has been accused by Gore
partisans of coloring her decisions, rejected Mr. Gore's
efforts to get what she called "special consideration and
multiple counts" for three heavily Democratic counties.
But she also offered the back of her hand to Mr. Bush's
legal strategists.
"It is clear, that for the Democrats and the Republicans,
the object is to win, and that is understandable. The stakes
are very high," Mrs. Harris said, informing the court that the
GOP was "not to be outdone" in its complaints about
hand-count procedures and "the sanctity of the machine
tabulation."
The secretary of state told the court yesterday that she
followed state law to the letter — and to the hour — and
asked the justices to uphold Leon County Circuit Judge Terry
Lewis' orders approving her key decisions and to clear the
way for the state Elections Canvassing Commission to certify
the final vote and award Florida's 25 electoral votes to Mr.
Bush. That result would make him president.
"[We] respectfully request that this court affirm the orders
of Judge Lewis, lift the temporary stay imposed by this court,
and permit the commission to certify the votes of the people
of Florida," Mrs. Harris said in papers filed yesterday by her
attorneys.
The two-hour televised high court hearing at 2 p.m. could
resolve issues that would decide almost two weeks after the
election. The seven-judge state Supreme Court, all of whom
were appointed by Democratic governors, is asked to go
beyond the interim court orders issued so far, an order that
seemed intended to preserve the status quo.
They allowed the manual counts to continue, but did not
compel Mrs. Harris to include those late numbers in official
totals that now show Mr. Bush leading Mr. Gore statewide
by 930 votes, including overseas absentee ballots.
"The secretary of state has chosen repeatedly — in at
least five different ways — to try to stop or delay the lawful
manual recount of ballots," said Mr. Gore's legal filing.
Mr. Bush's response defended Mrs. Harris' actions in
great detail and blamed the wholesale attack on her on the
fact that Democrats were "disappointed" with those
decisions.
"The unprecedented events that have brought us to this
point are obviously of the highest public interest," said his
brief to the state Supreme Court. "Extraordinary times call,
however, for courts to adhere steadfastly to the rule of law."
Republicans have supported efforts to stop recounts in
Palm Beach, Broward and Miami-Dade counties. They
attacked them in a federal court lawsuit contending that
counting just those three Democratic counties would violate
the U.S. Constitution requirements for "equal protection" and
"due process."
A federal judge in Miami and a 12-judge appeals court in
Atlanta refused to intervene, ruling that state courts had all the
powers required to decide the issue and order any necessary
remedies. The appeals court suggested that Mr. Bush might
have grounds for an appeal later.
The Gore brief complained of five administrative actions
by Mrs. Harris, including two approved by a lower court, the
collective action by the state Elections Canvassing
Commission, and a legal interpretation that was requested by
the Palm Beach Canvassing Board.
That opinion, issued Nov. 13, said hand recounts were
appropriate only when counting machines had mechanical
failures or otherwise were incapable of the task. The
following day, Attorney General Robert A. Butterworth, a
Democrat who was an official of the Gore campaign in
Florida, broke his own policy of deferring to Mrs. Harris'
office on election law and issued an opinion challenging her
interpretation as too narrow.
He supported Palm Beach officials who claimed that
ballot confusion, and the failure by some voters to fully punch
out their candidate's "chad," justified ballot-by-ballot
examination by humans to determine voter intent.
Mr. Bush's attorneys took exactly the opposite tack,
arguing that Mrs. Harris' opinion was correct and that she
would have violated the election law had she extended last
Tuesday's 5 p.m. deadline for anything short of a hurricane or
other natural disaster.
"Under the laws of Florida, there is no possible result here
but for this court to affirm," the Bush brief said.
Unlike the U.S. Supreme Court, Florida's highest court
does not have jurisdiction over every issue. Many controlling
precedents in election law were handed down by
intermediate appeals courts. Last week, the state Supreme
Court asserted that trial court rulings were binding law.
Chief Justice Charles T. Wells, 61, is a lifelong Floridian
who has been on the Supreme Court since 1984 and
ascended to the chief justice's position this year. He is one of
six justices chosen by the late Gov. Lawton Chiles.
Other justices include the most recent appointee, Justice
Peggy A. Quince, 52, whom Mr. Chiles chose shortly before
his death, in co-operation with Jeb Bush, who had just been
elected governor. Justice Quince, who earned her law degree
at Catholic University in Washington, is one of the court's two
black members.
Former Gov. Bob Graham, now the state's senior U.S.
senator, appointed Justice Leander J. Shaw Jr., 70, in 1983. |
