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Varied Legal Opinions Vie for Court Time

By Peter Slevin
Washington Post Staff Writer
Monday, November 20, 2000; Page A07

The ballot-by-ballot recount of presidential votes in South Florida should end immediately if the rule of law and standards of fundamental fairness are to be honored, lawyers for Texas Gov. George W. Bush wrote today in pleadings filed with the Florida Supreme Court.

Lawyers for Florida's Republican secretary of state, Katherine Harris, took the extra step of arguing that the recounts underway in three counties are illegal and should be halted, while attorneys for a Bush supporter in Collier County said a new statewide recount would be "infinitely more fair."

The maneuvers--more than a dozen legal briefs, motions and replies filed today alone--were part of an intense shadowboxing match that will give way to face-to-face oral arguments. The high court's answers to a flurry of questions could well decide who wins the White House if Vice President Gore overtakes Bush in the recount.

As legal teams labored over the weekend to prepare, no detail seemed too small in the quest to position themselves for the two-hour debate. They even dueled over who would speak and for how long.

The Gore camp announced that lawyers from two counties that want to keep counting--Broward and Palm Beach--would each be allocated five minutes of the Democrats' hour. The move could help suggest that the case is not entirely a matter of Gore vs. Bush.

Harris contended unsuccessfully in legal documents that she is above the partisan fray and should be granted 40 minutes to make her case to the justices. The Gore forces scoffed that Harris, the Florida co-chair of the Bush campaign, was hardly unbiased and should divide time with the Bush side.

On a day marked by well-turned phrases of disagreement, the papers filed by Harris's attorney contained an assertion that no contestant could easily refute: "It is clear that, for the Democrats and the Republicans, the object is to win."

The Supreme Court justices--varied in outlook, but all appointed by Democratic governors--will be asked to decide several significant issues. Critical among them are whether the recounts are legal and whether Harris was right to declare that no further tallies would be included in statewide results.

Lawyers for Gore and the Florida Democratic Party argued in papers filed Saturday that the right of voters to be heard takes precedence over the desire for "finality." They said legal precedent and common sense require the court to endorse the recounts and delay certification of Florida results. And, they said, Harris had acted unfairly by excluding the tallies.

In a reply, Bush attorneys argued that the state Legislature clearly set the rules for recounts and set a deadline of seven days for the results to be tabulated. Any county that grants a recount is responsible for recruiting enough staff to complete the task on time, wrote Barry Richard and Michael A. Carvin.

The Bush brief also endorsed a Leon County circuit judge's conclusion that state law gives Harris the authority to decide whether to accept late returns. She set standards where none were established and spent about seven hours in "a laborious process of reasoned decision-making," the lawyers reported.

"We submit that the secretary of state deserves this court's commendation," the Bush camp wrote.

The Bush forces, which attacked the fairness of hand recounts in public remarks from Austin, also challenged the justifications for them in their court pleadings. Lawyers said there is no "scintilla of evidence in the record" that hand recounts are more accurate than the original machine tallies conducted immediately after the election.

Lawyers for Harris made a similar point in rebutting the Gore campaign's argument that careful hand counts are necessary.

"We, of course, fully agree that the will of the people should be done," the Harris legal team wrote. "But it is entirely clear that the Florida Legislature did not view manual recounts as a necessary ingredient in determining the will of the people."

Matt Butler, a Collier County voter, joined the case on the GOP side to argue that the votes of people outside the three counties would be diluted if recounts are conducted only in South Florida. His lawyer suggested today that a statewide recount would be more fair.

The Democrats charged that Harris's own actions were "Kafkaesque"--by slowing the work of the South Florida counties and then criticizing them for tardiness. Her lawyers said she has followed state law while her opponents made trouble.

"The state of affairs initiated and being pursued by others," Harris's legal brief asserted, "has rendered the entire voting process just short of anarchy."

© 2000 The Washington Post Company