How We Got Here

By ADAM COHEN

There is scarcely a political question in America, Tocqueville observed, that doesn't turn sooner or later into a judicial one. Nowhere has that been truer than in Florida over the past two weeks. Going into the election, it looked like the presidency would be determined by the candidates' positions on issues such as prescription drugs and tax cuts. Now it seems likely to turn on how courts interpret obscure state election laws and arcane questions of administrative discretion.

The most striking thing about the legal battles in Florida is just how quickly the briefs are flying. By late last week, 24-hour news channels were announcing new filings and rulings at the same breathless clip they were calling states for Bush and Gore on election night. A Palm Beach County judge rules that local officials have the option of counting dimpled chads. A Broward County judge rules the same. A suit is filed challenging absentee ballots in Seminole. "I used to leave the house to pick up the newspaper," says Bush lawyer Barry Richard. "Now I leave to pick up the next complaint that's been filed."

By week's end, the legal endgame was focused on two sets of lawsuits proceeding on parallel tracks. The Bush campaign had pinned its hopes on a federal challenge to hand counts that now seems to have sputtered to a halt. And the Gore camp was relying on the Florida state courts to force a reluctant Katherine Harris, the secretary of state, to accept votes from hand recounts that it hoped might provide its margin of victory.

The Democrats' bet-the-farm lawsuit began when Harris announced that she would certify the state's vote at 5 p.m. last Tuesday, even though several counties were still counting votes by hand. Harris told the counties they were legally required to submit their vote totals within seven days of the election. Leon County circuit-court Judge Terry Lewis, who was assigned the case, issued an initial decision that offered something to each side. He ruled that the counties could continue their hand counts, but he also affirmed that Harris had the authority not to accept those recounted votes. And there was one more thing: Harris could not abuse her discretion in rejecting the hand-recounted votes.

After the ruling, Harris ordered the counties to submit reasons they should be allowed to revise their vote totals. Three counties--Palm Beach, Broward and Miami-Dade--responded to her in writing by her 2 p.m. Wednesday deadline. But after she reviewed their submissions, she found them unsatisfactory. Harris then declared that she would certify final election results on Saturday after the state's absentee ballots were counted.

To stop her, the Democrats tried to convince Judge Lewis that Harris' decision was an abuse of discretion. But on Friday morning he upheld Harris' decision. Then on Friday afternoon, the Florida Supreme Court put in a surprise appearance. Although neither party had yet asked it for a ruling, the court ordered Harris not to certify Florida's vote. And it set a hearing for Monday afternoon to consider the issue further.

Every twist in the Florida postelection legal journey has been met with a flurry of overreaction. Friday morning, when Judge Lewis ruled that Harris could certify the state results, the punditocracy was declaring that Gore's hopes of winning were over. By the end of the same day, after the Florida Supreme Court's ruling that she could not, talk resurfaced of a possible Gore victory. But the truth lay somewhere in between. The Gore camp will have a chance to argue before the Florida Supreme Court this week that "the votes have been cast, and they ought to be counted," in the words of David Boies, Gore's chief lawyer. "It's an easy case."

But things may not be quite that easy inside the courtroom. There is a whole legal field, administrative law, devoted to the intricate question of when a government official has abused his discretion. Courts won't overrule an administrator lightly: in general they need to find that she or he has acted out of prejudice or arbitrarily. To Harris' critics, bias seems a given, since she is co-chair of Bush's Florida campaign. But except in the most blatant cases, courts are reluctant to make such assumptions about an official's motivation.

The Florida Supreme Court might more probably hold that Harris' decision to reject the hand counts was arbitrary. After all, Harris made her decision before the votes at issue were tabulated, so she may be hard pressed to argue that she really took into account all the relevant facts. Her critics say she acted before the votes were in for a partisan reason: because she did not want the hand recounting to continue, perhaps eroding Bush's narrow lead. But in her defense, Harris can say, as she has repeatedly, that she was just enforcing the deadline for reporting votes set out by the Florida legislature. It's not a completely frivolous point: the law can often be strict about deadlines. In 1992 Virginia executed convicted killer Roger Coleman after the Supreme Court held that his lawyers waived his constitutional claims by missing a deadline for filing legal papers by one day.

Which is why the Gore camp's best legal argument may be not that Harris abused her discretion, but instead that she had no discretion at all about whether to count the hand-recounted votes. Florida law imposes an obligation on the counties to act when a sample manual recount indicates an error in vote tabulation that could affect the outcome of the election. And among the options given to counties is manually recounting all the ballots. In a county such as Miami-Dade, where 653,963 punch-card ballots were cast, it may not be possible to set up the procedures, recruit the staff and the Republican and Democratic observers, and then complete the painstaking and delicate work of a hand recount within seven days. Harris has no discretion, the Democrats say, to do her job in a way that prevents the counties from fulfilling an obligation imposed on them by law.

For its part, the Bush campaign has been arguing for days that hand recounts are inherently unreliable and subject to manipulation. And last Saturday it made that case in graphic terms, offering examples of misplaced and mishandled ballots in several counties.

But for all of the Bush campaign's attacks on hand counting, the fact is that it has a well-established place in election law. Florida law expressly provides for hand recounts. And courts that have reviewed elections decided by hand recounts--from Alaska to Indiana to South Dakota--have overwhelmingly supported them. If the Florida Supreme Court is concerned about the way in which hand counting is occurring, it could take steps to oversee it more directly, either by setting out its own counting standards or by appointing a special master to supervise the process.

Which is one reason why when Republicans went to federal court last week, they led with a more subtle claim. A problem with the Florida hand recounts, they said, was that by conducting them in some counties and not others, the state was depriving voters in counties that were not being recounted of equal protection of the law. It was an odd claim--the G.O.P. doesn't usually ask the federal courts to intrude in state elections--and an unconvincing one. As the 11th Circuit Court of Appeals noted in rejecting it, Article II, Section 1 of the Constitution expressly provides that each state may select its presidential electors "in such manner as the Legislature thereof may direct." That's another way of saying that the states call the shots in presidential elections.

The Katherine Harris lawsuit is setting the agenda right now, but there are some other potentially important lawsuits pending in state court. The morning after the election, Democratic outrage was focused on Palm Beach County and its controversial "butterfly ballot." Palm Beach voters have filed more than a dozen lawsuits challenging the ballot's legality. The plaintiffs and Democratic volunteers have collected thousands of affidavits from voters who say they were confused into miscasting their votes, and they have collected statistical evidence arguing that when thousands of ballots were discarded, rejected or mistakenly cast for Buchanan, Gore lost some 11,675 votes.

It could be a compelling case, particularly if plaintiffs can prove that the ballot actually violates state law. The argument that a Democratic official prepared the ballot should be irrelevant: the right to a legal ballot belongs to the voters, not a political party. The biggest problem with the suit is that there is no easy remedy. Recounts are routine. Ordering a new election, even in a single county, is a more radical step that no court has ever taken in a presidential election. A new election would mean deciding who could vote--all voters, or just those who turned out on Election Day. It would also raise thorny issues such as how to prevent those who voted for Nader from switching now. And perhaps most unsettling, it would start up the presidential race again--complete with candidates campaigning and a blizzard of television commercials.

Every day, it seems, there are more lawsuits presenting intriguing new facts. In Seminole County, Democrats have filed a lawsuit claiming that Republicans illegally completed portions of some voters' absentee-ballot applications; some 4,700 votes are at stake. And the N.A.A.C.P. held hearings in Miami Nov. 11 in which black voters gave disturbing testimony about being intimidated from voting in a variety of ways--from being required to provide IDs that were not required of white voters to being denied legally required translators. The Justice Department is investigating the claims. Republicans, meanwhile, are charging Democrats with targeting more than 1,000 overseas ballots, the bulk of them from military voters, which were thrown out on Friday, many for either lack of a postmark or the voter's own signature. More than two-thirds of the absentee ballots were rejected in Miami-Dade County, for example, many of them because they had late postmarks or no postmarks.

The most important actor right now in the Florida legal drama is the Florida Supreme Court. It is the final arbiter of Florida election law. And it has the power to impose almost any kind of remedy it wants, from ordering recounts and revotes to interpreting individual ballots that are in dispute. This could be good news for the Gore campaign. Six of seven Florida Supreme Court justices are Democrats; the other is an independent. Leander J. Shaw Jr., the senior member of the court, is a former public defender; and several others were trial lawyers, a traditionally liberal sector of the bar. Recently, the justices have had tense relations with Governor Jeb Bush and Florida Republicans. In April the court rejected rules he backed to speed up death-penalty appeals. Bush responded by charging the court with engaging in "unnecessary delay and legal gamesmanship" in capital cases.

The Florida election quagmire could end up before the U.S. Supreme Court, although that is not likely. The high court doesn't usually accept cases in which state courts are interpreting state law. And that should be especially true of the current court, which has been aggressive about extending state authority in the federal system. But, in the end, both sides will have the right to at least present their case to the Supreme Court. And that fact should ensure that, no matter how acrimonious things become in Florida, the ultimate result is one that both sides--and, more crucially, the American people--accept as legitimate. "What's most important is the most obvious," says Boies. "A peaceful transfer of power in the largest, most stable democracy the world has ever known."

--With reporting by Cathy Booth and Amanda Ripley/Tallahassee, Viveca Novak/Washington and Timothy Roche/Palm Beach

With reporting by Cathy Booth and Amanda Ripley/Tallahassee, Viveca Novak/Washington and Timothy Roche/Palm Beach