-Caveat Lector-
November 21, 2000
Candidates Can Still Pursue Legal Avenues in Florida
By JOHN D. MCKINNON
Staff Reporter
THE WALL STREET JOURNAL
TALLAHASSEE, Fla. -- Florida's Supreme Court heard arguments in
one historic election challenge, but there could be many more
legal landmarks where that one came from.
The high court's decision will likely play a significant role in
deciding the winner of Florida's 25 electoral votes -- and the
presidency. But both the loser and the winner will still have
legal avenues left to pursue, under both state and federal law.
Both sides' lawyers have signaled they are ready to go there,
barring a case of political cold feet on the candidates' part.
In fact, a ruling for either side could set off major temblors on
the legal landscape. Florida law gives a potentially powerful
weapon to aggrieved candidates, parties and even individual
voters: the election-contest suit. The statute says that an
election's certification may be set aside based on "any ... cause
or allegation which, if sustained, would show that a person other
than the successful candidate was the person duly nominated or
elected ...."
The state Supreme Court has interpreted the law to include even
allegations of negligence, not just overt corruption and fraud.
Al Gore's lead lawyer, David Boies, has suggested his side would
consider such a suit if the court says that is the proper avenue.
Mr. Boies appeared to reiterate that position during oral
arguments before the high court. Lawyers in the case say
privately that a likely focus of such a contest by Mr. Gore or
his sympathizers could be the alleged irregularities that
Democrats have complained about in Palm Beach County.
Lawyers for Republicans in the case say privately that they
believe Gore backers would have a hard time establishing that the
problems with the so-called butterfly ballot amounted to any sort
of wrongdoing. Monday, a Palm Beach County judge dismissed a set
of private complaints that could have produced a range of
remedies there, from a reallocation of the current votes to an
entire new vote in Palm Beach County, though the plaintiffs
involved said they would appeal.
In a sense, the quick dismissal could help the plaintiffs,
because appeals issues might be resolved faster than if the state
trial judge had held lengthy hearings. Lawyers familiar with the
cases said some could go straight to the state Supreme Court.
Still, with the Dec. 12 deadline for choosing electors
approaching, time is running short for those appeals.
But there are other supposed irregularities that could form the
basis for a challenge for Mr. Gore or his backers, such as
charges that some minority voters were turned away from polls
improperly or the alleged inaccuracy of punch-card voting
systems. In fact, Mr. Gore's lawyers believe that the fact that
some voting machines didn't count some punch-card ballots would
be enough to sustain an election-contest suit.
Bush lawyers also said Monday that their side would have to
consider an election contest if Mr. Gore wins in the state high
court. "If the results of these manual recounts were to be
included in an election total that purportedly put Gore over the
top, I think there are a whole host of grounds that would support
a contest by the other side," one Bush lawyer said.
Other aggrieved individual voters -- such as military personnel
whose ballots were tossed out -- also could file election-contest
actions.
Also in the works are potential broad-scale federal voting-rights
and discrimination cases, in addition to a low-profile case
pending in federal district court here. Groups representing
African-Americans, Haitian-Americans and Puerto Rican voters in
Florida have been collecting complaints that could lead to
lawsuits. There are "hundreds and hundreds" of such complaints,
said Thomas J. Henderson, chief counsel for the Lawyers
Committee for Civil Rights Under Law.
But it is unclear when such broad suits might be filed. For now,
at least one civil-rights group, People for the American Way, is
calling for a statewide manual recount as its preferred
alternative, said Ralph G. Neas, the group's president.
Some stalled lawsuits could make a comeback. An appeal of the
Palm Beach cases could put them in front of the state Supreme
Court soon. If Republicans lose the current case before the
state high court, they have another legal vehicle already warmed
up and ready to roll. More than a week ago, they went to federal
courts in Florida to halt the hand counts just getting started in
Volusia, Palm Beach and other counties. They have been turned
down so far by those courts, as well as the 11th Circuit U.S.
Court of Appeals in Atlanta. Republicans could appeal the
federal appeals court's decision or an adverse ruling by the
state Supreme Court directly to the U.S. Supreme Court.
Meanwhile, in Seminole County, a circuit judge ruled that a
Democratic activist, Harry Jacobs, could proceed with a lawsuit
asking that all 15,000 absentee ballots in that heavily
Republican county be thrown out. In the suit, local Democrats
allege that Seminole Supervisor of Elections Sandra Goard, a
Republican, allowed two GOP operatives to enter her office and
correct information on 4,700 absentee-ballot request forms that
had come from Republican voters. Ms. Goard wouldn't comment on
the suit but has said she did nothing improper.
Because the 4,700 ballots in question have been counted and mixed
with other absentee ballots, Mr. Jacobs asked the court to throw
out all 15,000 absentee ballots cast in Seminole County.
With all the lawsuits and legal options swirling around, the
future is hard to predict.
"It's very tricky because there so many lawsuits," said Elliot
Mincberg, general counsel of People for the American Way. "It's
just impossible to know."
Full Court Press
Where some of the lawsuits over Florida's election results have
gone, and where they go next.
VOLUSIA COUNTY, FLORIDA DEMOCRATIC PARTY vs.
KATHERINE HARRIS et al SIEGEL vs.
LEPORE VARIOUS VOTERS vs. PALM BEACH
Second Judicial Circuit Court for Leon County County Canvassing
boards sued to keep results filed after the Nov. 14, 5:00 p.m.
deadline from being ignored.
Judge Terry Lewis first ruled the Florida secretary of state
should consider the ballots, then that she was within her
discretion to ignore them. Gore campaign appealed...
U.S. District Court for the Southern District of Florida Seven
voters, joined by Bush campaign, sought to have the election
certified without the hand recounts; and unsuccessfully sought an
emergency injunction to halt recounts, then appealed...
15th Judicial Circuit for Palm Beach County
11 Palm Beach County voters asked for a revote because of
confusion over Palm Beach County's "butterfly ballot."
Monday, Circuit Court Judge Jorge Labarga ruled he lacks
authority to order a revote in the county...
...Florida Supreme Court in a case consolidated with a suit from
Palm Beach County, court issued a stay order preventing the state
from certifying the results of the election pending further
orders, allowed the recounting to continue, and heard arguments
Monday... ...
U.S. Court of Appeals for the 11th Circuit Court of Appeals on
Friday denied GOP's emergency request to stop manual recounts on
constitutional grounds, but left the certification issue open.
Oral arguments on this, and a similar case out of U.S.
District Court in Orlando, could begin Nov. 27... ...Florida
Supreme Court? Plaintiffs said they would appeal... ...U.S.
Supreme Court? Either side could appeal a ruling there if they
show a constitutional issue is at stake...
JACOBS vs.SEMINOLE COUNTY
18th Judicial Circuit Court of Florida Judge Debra Nelson agreed
Monday to hear a suit filed by a Democrat seeking to throw out
more than 15,000 absentee ballots because Republicans allegedly
filled in missing data on applications. Hearings begin next
Monday.
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FROM THE DESK OF:
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