Raising the legal stakes in the Florida election fight, George W. Bush's campaign argued yesterday that it would be unconstitutional andviolate federal law if a state court rules as his Democratic rival has asked.
In what appeared to be a warning that Bush lawyers are poised to take thedispute to the U.S. Supreme Court, his campaign argued against any ruling thatwould uphold recounting of votes by hand and require those votes to be addedto the final tally.
"Allowing the manual recounts to proceed," Bush's lawyers told the FloridaSupreme Court, "would violate the United States Constitution."
His campaign also bluntly advised the state Supreme Court that it would beviolating federal election law if it countermanded a state election official'sdecision to shut off any further manual counting in three Florida counties andoverturned the separate refusal to count any votes found in that process.
The state Supreme Court will weigh those new arguments and a series ofnow-familiar legal claims this afternoon, when it holds a two-hour emergencyhearing in Tallahassee on three related cases. It is expected to rule promptly- perhaps before the end of the day. In the balance are Florida's 25 electoralvotes, enough to give the presidency to either the Texas governor or VicePresident Al Gore.
In its legal briefs yesterday, the Bush campaign raised constitutional andfederal law arguments it had not previously made in state court. Unless thestate cases are somehow turned into tests of national law issues, those caseswould not involve any issues open for review by the U.S. Supreme Court.
Bush's team apparently advanced the new arguments yesterday for tworeasons: the desire to get them on the record and thus save them for a laterappeal to the U.S. Supreme Court, plus the increasing prospect that thosearguments would not be accepted in coming days in a pending federal lawsuitfiled by the Bush camp that is before the 11th Circuit Court of Appeals inAtlanta.
Florida Secretary of State Katherine Harris - the state's senior electionsofficial - also raised constitutional claims for the first time in the statecases. She is directly involved in those lawsuits to defend her authority tostop the recounting, on the theory that it is illegal under Florida law. Shealso is defending her refusal to add any more votes to the tally after thecount of overseas ballots Saturday, when she had been preparing to certifyBush as the winner. The state Supreme Court barred her from doing so untilafter it could hear the Gore and Democratic appeals.
Harris, who was co-chairwoman of Bush's Florida presidential campaign,sought unsuccessfully yesterday to have the state court separate her fromBush's side in the court cases.
She had asserted that she was involved only because of her official duties,and argued that the high court should divide up the time for today's hearingthree ways: one third for the Gore team, one third for the Bush team, and onethird for her.
Early in the evening, however, the court refused to do so, essentiallykeeping the battle before it a contest between Gore on one side and Bush onthe other, with Harris on Bush's side.
When the Gore campaign replied later in the day to the new federal lawarguments, it accepted the challenge, and for the first time raised its ownconstitutional points. Gore's legal aides contended that failure to count byhand the votes of those missed by machine counting would be anunconstitutional "disenfranchisement of countless voters."
"Depriving those citizens of their right to have their votes counted byvirtue of the actions or inactions" of election officials, Gore's side argued,would violate several provisions of the U.S. Constitution and similar clausesin the Florida Constitution.
With the Gore team also weighing in on those new issues, the cases in theFlorida Supreme Court suddenly changed character. A war over what Floridaelection law means became a battle over national law with a potential impactin all other states where manual recounts are used to decide who won close orcontested elections.
The state Supreme Court has the authority to confine any ruling it makes tostate law questions alone. But that would not necessarily insulate the disputefrom going to the U.S. Supreme Court, now that those national issues have beenput in play.
The Bush campaign, in replying to the appeals by Gore, Democrats andFlorida's attorney general, launched a broadside attack on manual recountingunder all circumstances.
There is "not a scintilla of evidence," the Bush lawyers contended, "forthis court to conclude that hand recounts are more accurate than the returns"produced by machine counting.
Manual counts, they added, are more subject to "error, stress, andincorrective subjective judgment - particularly in a highly charged partisanenvironment."
Bush's attorneys also sharply criticized the limited selection of places inFlorida for manual recounts - in three predominantly Democratic counties:Dade, Broward and Palm Beach.
"It would violate the U.S. Constitution for the secretary of state topermit the three counties to complete manual recount and certify thoseresults," they asserted.
The Bush campaign and Harris continued to argue that the state SupremeCourt should remain out of the dispute and leave it to state electionofficials to use the discretion they say Florida law gives them.
Over the weekend, a stack of legal papers piled up before the justices ofthe state's highest court, as all sides met the strict filing deadlines set bythe court. The justices had issued a stern warning that anyone missing adeadline would not be allowed to take part in today's hearing.
Among the filings were two from Broward County's canvassing board,revealing a new split among board members on the standards they were using todecide whether a machine ballot had been legally cast. The dispute centered onwhether to count ballots where two corners of the chad were attached. Two ofthe three members asked the court to give them guidance on how to make thatdecision; the other said she was satisfied they were doing it correctly withthe two-corner standard.
The Gore campaign's last filing also urged the justices to "provideguidance with respect to the proper standard that counting teams and countycanvassing boards should use as they count individual ballots" by hand.