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Analysis: Gore Arguments Could Receive Receptive Hearing

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The Court

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 Charles Lane
Washington Post Staff Writer
Saturday, November 18, 2000; Page A11

The Florida Supreme Court's decision to stop certification of a statewide presidential election ensures that the struggle for the state's 25 electoral votes will not end before Vice President Gore has a hearing in the governmental forum in Florida most likely to be receptive to his case.

The court is made up of seven justices appointed during the terms of past Democratic governors. And the court's past decisions emphasize that the role of courts is to ensure that the will of the voters is expressed, even where all the provisions of state election law may not have been observed to the letter.

At least in theory, this doctrine could be seen as consistent with a key argument of the Gore campaign-that Secretary of State Katherine Harris's deadline for receiving vote totals, and her refusal to consider subsequent manual recounts, placed a strict reading of state election statutes ahead of the right of every voter to be heard.

"The court should not frustrate the will of the voters if the failure to perform official election duties is unintentional wrongdoing and the will of the voters can be determined," the justices concluded in a 1998 election case.

Furthermore, by moving at their own initiative "to preserve the status quo," the Florida justices strongly implied that they were uncomfortable that Harris might follow through on her plan to declare a winner-presumably Republican candidate George W. Bush-while the Democrats were still trying to prove through manual recounts that the people actually chose Gore.

Since Gore's attorneys had promised to contest such a certification in court, Harris' action would have left the justices facing the prospect of deciding whether or not to overturn a certified election result after the fact, something Florida courts have generally been reluctant to do.

Now the two central and closely related issues in the dispute-the legality of manual recounts, and the reasonableness of Harris's deadline-are squarely before the highest judicial body in the state.

"This is where it was all coming," says Jon Mills, acting dean of the University of Florida's Levin College of Law in Gainesville. "They were waiting until all the issues got before them, and now they're there."

To be sure, none of the court's prior decisions provides a precise analogy to this extraordinary case.

"I think this'll stand or fall on its own," said former Florida Supreme Court justice Stephen Grimes. "I don't think there's any controlling precedent here."

The court has repeatedly said that it will not let an overly technical reading of the election rules guide its evaluations of the validity of elections. But in the past, the court has considered cases in which aggrieved candidates were asking it to throw out certain votes that swung an election and were alleged to have been improperly included in a final count.

In this case, the Gore campaign's argument is that potentially valid votes have been improperly excluded, and that they must be included for the final count truly to reflect the people's will.

In what may be the nearest parallel case in the court's precedents, the justices declined to enforce a strict deadline for submitting written election returns at the conclusion of a 1988 congressional race, reasoning that a county board of canvassers' timely phoned-in count was good enough.

Even in that case, however, the fact pattern was different in a significant sense from the present situation. The complaining candidate was asking the court to exclude the votes from the county that filed its written results late, so that he would win with a majority of the other counties.

Nevertheless, legal analysts were able to identify key principles that could guide the court.

One is the language of Florida statute 102.168, the law under which Gore would have to sue to contest the certification of a statewide result.

That provision says that a candidate may challenge a certified result on the basis of a "rejection of a number of legal votes sufficient to change or place in doubt the result of the election . . . or any other cause or allegation that would show that a person other than the successful candidate was the person duly nominated or elected to the office in question."

Mills said the court could evaluate Harris's enforcement of the deadline in the light of this language, which apparently expresses the will of Florida's legislature to provide candidates with a means of preventing officials from excluding valid votes in such a way as to tilt an election.

One possible problem for the Gore campaign, however, is that Leon County Circuit Judge Terry Lewis, who originally ordered Harris to give reasonable consideration to accepting vote totals after her deadline, himself ruled today that Harris had not violated his own order. He did so, legal analysts said, out of the judicial deference Florida law generally prescribes toward action by state agencies.

For the Gore campaign to prevail on appeal, it may have to show that Lewis's decision was "clearly erroneous," says Florida State law professor Jim Rossi.

As Lewis acknowledged yesterday, the courts have so far heard only "limited evidence" about all the factors that shaped Harris's decision. Since appellate courts such as the Supreme Court normally consider only legal issues and do not attempt to establish new facts themselves, that could make it harder for Gore's lawyers to establish that Harris was wrong.

"That's a tough argument," Rossi said.

© 2000 The Washington Post Company

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