WASHINGTON—Raising the legal stakes in the Florida election fight, George W. Bush's campaign argued yesterday that it would be unconstitutional and violate 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 the dispute to the U.S. Supreme Court, his campaign argued against any ruling that would uphold recounting of votes by hand and require those votes to be added to the final tally.
His campaign also bluntly advised the state Supreme Court that it would be violating federal election law if it countermanded a state election official's decision to shut off any further manual counting in three Florida counties and overturned the separate refusal to count any votes found in that process.
The state Supreme Court will weigh those new arguments and a series of now-familiar legal claims this afternoon, when it holds a two-hour emergency hearing 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 electoral votes, enough to give the presidency to either the Texas governor or Vice President Al Gore.
In its legal briefs yesterday, the Bush campaign raised constitutional and federal law arguments it had not previously made in state court. Unless the state cases are somehow turned into tests of national law issues, those cases would not involve any issues open for review by the U.S. Supreme Court.
Bush's team apparently advanced the new arguments yesterday for two reasons: the desire to get them on the record and thus save them for a later appeal to the U.S. Supreme Court, plus the increasing prospect that those arguments would not be accepted in coming days in a pending federal lawsuit filed by the Bush camp that is before the 11th Circuit Court of Appeals in Atlanta.
Florida Secretary of State Katherine Harris - the state's senior elections official - also raised constitutional claims for the first time in the state cases. She is directly involved in those lawsuits to defend her authority to stop the recounting, on the theory that it is illegal under Florida law. She also is defending her refusal to add any more votes to the tally after the count of overseas ballots Saturday, when she had been preparing to certify Bush as the winner. The state Supreme Court barred her from doing so until after 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 from Bush'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 hearing three ways: one third for the Gore team, one third for the Bush team, and one third for her.
Early in the evening, however, the court refused to do so, essentially keeping the battle before it a contest between Gore on one side and Bush on the other, with Harris on Bush's side.
When the Gore campaign replied later in the day to the new federal law arguments, it accepted the challenge, and for the first time raised its own constitutional points. Gore's legal aides contended that failure to count by hand the votes of those missed by machine counting would be an unconstitutional "disenfranchisement of countless voters."
"Depriving those citizens of their right to have their votes counted by virtue of the actions or inactions" of election officials, Gore's side argued, would violate several provisions of the U.S. Constitution and similar clauses in the Florida Constitution.
With the Gore team also weighing in on those new issues, the cases in the Florida Supreme Court suddenly changed character. A war over what Florida election law means became a battle over national law with a potential impact in all other states where manual recounts are used to decide who won close or contested elections.
The state Supreme Court has the authority to confine any ruling it makes to state law questions alone. But that would not necessarily insulate the dispute from going to the U.S. Supreme Court, now that those national issues have been put in play.
The Bush campaign, in replying to the appeals by Gore, Democrats and Florida's attorney general, launched a broadside attack on manual recounting under all circumstances.
There is "not a scintilla of evidence," the Bush lawyers contended, "for this 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, and incorrective subjective judgment - particularly in a highly charged partisan environment."
Bush's attorneys also sharply criticized the limited selection of places in Florida 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 to permit the three counties to complete manual recount and certify those results," they asserted.
The Bush campaign and Harris continued to argue that the state Supreme Court should remain out of the dispute and leave it to state election officials to use the discretion they say Florida law gives them.
Over the weekend, a stack of legal papers piled up before the justices of the state's highest court, as all sides met the strict filing deadlines set by the court. The justices had issued a stern warning that anyone missing a deadline 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 to decide whether a machine ballot had been legally cast. The dispute centered on whether to count ballots where two corners of the chad were attached. Two of the three members asked the court to give them guidance on how to make that decision; the other said she was satisfied they were doing it correctly with the two-corner standard.
The Gore campaign's last filing also urged the justices to "provide guidance with respect to the proper standard that counting teams and county canvassing boards should use as they count individual ballots" by hand.