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Analysis: Litigation May Prolong Process Into 2001

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Election Day is just the beginning. Keep up with Al Kamen's In the Loop, Steve Barr's Federal Diary and news from The Post's Federal Page.

By David S. Broder
Washington Post Staff Writer
Sunday, November 19, 2000; Page A1

A welter of legal possibilities combined with hardening political lines could throw the presidential contest into the new year, experts in both parties warned yesterday. Some observers said they feared a chaotic situation that could deprive the eventual winner of the legitimacy needed to govern.

Whatever the outcome of tomorrow's hearing in the Florida Supreme Court, lawyers for both Vice President Gore and Texas Gov. George W. Bush see possibilities for further litigation that could delay the awarding of Florida's crucial 25 electoral votes. Leaders of the Florida Legislature are eyeing a possible intervention, and the dispute could come before Congress in January-just two weeks before Inauguration Day-in a challenge to the state's electoral votes.

"It's a very scary thought," Sen. John Breaux (D-La.) said yesterday, "but I'm getting a sneaky feeling in my gut that Congress may get involved in it. If impeachment was difficult, this would be far worse."

Vin Weber, a former GOP representative from Minnesota, said, "I have become an extreme pessimist. I've wondered in the last day or two if we haven't crossed an important point where it's too late for anybody to step back. I'm afraid we're committed to a course of action that will do a lot of damage to the system."

Others in both parties hold out hope that the Florida Supreme Court will resolve the situation and that its verdict will be accepted by both Gore and Bush. But all indications yesterday were that Gore strategists are interpreting public patience with the 11-day-old impasse as an indication that the recounting of votes can continue at least until the Dec. 12 deadline for selecting Florida's 25 presidential electors.

In an afternoon press conference, Bush supporters used the strongest language heard so far to impugn the legitimacy of the continued Florida recounts. Montana Gov. Marc Racicot (R), speaking at a briefing arranged by Bush's aides in Austin, said Gore was pursuing "win-at-any-cost" tactics that the American people would never accept as fair.

South Dakota Gov. William J. Janklow (R) told reporters at a meeting of the Republican Governors Association in Florida that "they [the Democrats] are going to steal the election. . . . When it gets stolen from us, we ought to know it."

Alarm was growing among neutral observers of the political scene. The University of Wisconsin's Charles O. Jones, said, "With every passing day . . . it's developing into a greater threat to governing this country. The positions are hardening."

Others took a less alarmist view. Former New Hampshire senator Warren Rudman, a Republican, said, "Most people think it should have been settled by now, but they're not really outraged. Once the count is over-however the Florida court says it should be conducted-either of the candidates who tried to go beyond that would be on thin ice. People don't want the legislature or Congress to mess around with it."

Merle Black of Emory University said he looked to the certification of the Florida winner-originally scheduled for yesterday but delayed by order of the state supreme court-as the event that will pressure the loser to withdraw. "The country is so evenly divided, it is yearning for a resolution. . . . At that moment, the loser [who fails to withdraw] becomes a poor loser," he said.

But Weber, who has close ties to leaders in the Democratic Party as well as the GOP, said, "Both parties are so polarized, I don't think anyone could even suggest to the standard-bearer that he should back off. . . . I think we're doomed to play this out to the bitter end."

As Chris Lehane, a Gore spokesman, said, "There are as many roads out of this as there are to leave Dupont Circle." A survey of participants in the ongoing battle and outside experts identified the possible roles of five major institutional players.

The Florida Supreme Court

The seven justices of the state's highest court, all appointed during the terms of Democratic governors, placed themselves in the center of the controversy on Friday when they held up the certification of the winner, scheduled for Saturday, and ordered the recounts to continue in the counties where they had begun.

The rival candidates' lawyers are filing their briefs over the weekend and oral arguments are slated for Monday afternoon.

Legal authorities outlined three possible verdicts. First, the court could order that the manual counts under way in Broward, Palm Beach and Miami-Dade counties continue and that the results be included in the totals certified as the official Florida returns. That would amount to a complete legal victory for Gore.

Or, legal observers say, the court could issue a "wait-and-see" verdict, which says the hand counts should continue but defers until later a decision-either by the court or the secretary of state-as to whether they should be included in the certification. Another version of "wait-and-see" would be permission for the secretary of state to certify on the basis of current returns, subject to possible revision with the later counts. That would not be wholly satisfactory to either side, but would keep both of them in the game.

Third, analysts predict, the court could uphold the decision Friday by Leon County Circuit Judge Terry P. Lewis to permit Secretary of State Katherine Harris to carry out her stated intention of certifying the Florida results on the basis of the machine recount and overseas absentees, which put Bush some 936 votes ahead. Lewis's opinion that Harris had exercised her administrative discretion properly under Florida law was stayed temporarily by the Supreme Court. Were that court now to endorse Lewis's ruling, it would be a complete legal victory for Bush.

While either the first or last of these decisions might seem to be final, lawyers who have studied the case say the litigation may not be over. The losing candidate could formally contest the certification in the Florida courts on grounds that the vote count he preferred-machines, in Bush's case or manual in Gore's-showed him with the larger number of votes. The contest suit could also be filed by the losing side when the wait-and-see verdict eventually produces a ruling that candidate does not accept.

In addition, a half-dozen other suits challenging either the format of Palm Beach's "butterfly" ballot, procedures for distributing and accepting absentee ballots and other issues are still working their way through the state court system.

The Secretary of State

Harris, an elected Republican official who served as co-chairman of Bush's Florida campaign, has been bold in asserting her right and obligation under Florida law to certify the election results on the normal timetable, unless barred by the Supreme Court. Bush's lawyers assert in their brief that the court, as part of the judicial branch, has no right to substitute its judgment for that of the executive branch official charged with administration of the election. Some Republicans have suggested that she could defy the court but the Bush campaign has not urged her to do that. Outside lawyers say Harris could not ignore a final ruling by the Supreme Court any more than she could defy the temporary order delaying the vote-certification she had planned for Saturday.

The Florida Legislature

Both the state senate and the house of representatives have Republican majorities, with the GOP controlling the upper chamber by 10 votes and the lower by 34.

The same federal law that sets Dec. 12 as the day for appointment of electors based on the state's certified vote results, and Dec. 18 as the day for them to meet in the state capital and cast their votes provides that if the electors have not been chosen by the deadline, they "may be appointed on a subsequent day in such manner as the legislature of such state may direct."

Some lawyers regard that language as a relic of the era when legislatures were empowered to elect the two senators from each state and suggest that it would be, as one said, "a travesty" for Republican legislators in effect to pick the next president.

But Florida's Speaker-elect Thomas Feeney (R) told The Washington Post he believed it was the Supreme Court that was usurping authority from Harris, questioning "whether it has any role whatsoever."

In another interview on Saturday, Feeney, who will be sworn in Tuesday when the Legislature has its organizational meeting, said the law gives the Legislature "the power, authority and responsibility to intervene" if the results of the election are not clear. And he said he is prepared to see it "play a role should it become necessary."

The Federal Courts

Bush's lawyers have taken the controversy into the federal courts, with a lawsuit seeking to stop the manual recounts on grounds that they violate the "equal protection" clause of the Constitution's 14th Amendment because they are taking place only in Democratically controlled counties. A district court judge refused to issue the requested injunction, and on Friday the full bench of the 11th Circuit Court of Appeals said state courts "have the primary authority" to handle election law disputes and declined to intervene at this point. But it invited the rivals to come back at a later stage of the litigation.

Some lawyers say that the federal courts are reluctant to intervene in voting cases where no racial discrimination is alleged, but the avenue of appeal remains open.


The newly elected House and Senate have a constitutional duty to count the electoral votes when the two chambers convene at the beginning of January. The normally routine joint session ceremony, at which Gore would preside as president of the Senate if custom is followed, is scheduled for Jan. 5. It is possible it would not be routine.

The statute outlining the electoral-count procedure provides that objection from one senator and one representative to the electoral vote reported from any state is sufficient to interrupt the roll-call. Each chamber then debates the validity of the certification for two hours and votes on accepting or rejecting it.

They must concur in their judgment. Republicans have a provisional nine-vote majority in the House and the Senate will be either 51-49 Republican or tied, depending on the result of the Washington State race, where Republican Sen. Slade Gorton (R) has been holding a narrow lead.

If the Florida electoral votes were challenged and if Gorton were seated, and if every senator and representative voted for his party nominee, Bush would have an advantage. But some members might be under pressure to support the candidate who carried their own constituency. There are other unsettled issues. If the Senate were tied, would Sen. Joseph I. Lieberman (D-Conn.), the possible winner of the vice presidency, be allowed to vote on his own case? Would Gore be allowed to cast a tie-breaking vote?

Sen. Orrin G. Hatch (R-Utah), the chairman of the Senate Judiciary Committee, and the committee's ranking minority member, Sen. Patrick J. Leahy (D-Vt.), have ordered up research on these issues, and House Majority Whip Tom DeLay (R-Tex.) has done the same thing.

Among the other issues in dispute is the question of whether 270 electoral votes are needed for election-the majority of all electors-or simply a majority of those whose credentials have been certified by the states and accepted by Congress. If Florida's 25 electoral votes were excluded for any reason, Gore would lead Bush 267 to 246, assuming no states are changed by recounts.

Hatch believes that would throw the presidential election into the House, where each state casts a single vote, based on the majority of votes in its delegation. Republicans will control 28 state delegations in the next Congress, enough to elect Bush if party lines hold. But Leahy thinks Gore would be declared the winner by getting the majority of electoral votes from 49 states and the District of Columbia.

© 2000 The Washington Post Company

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