Justices Dust Off an 1887 Statute for Ballot Battle


By DAVID G. SAVAGE, HENRY WEINSTEIN, Times Staff Writers





WASHINGTON--The U.S. Supreme Court argument next week over Florida's ballots will focus almost entirely on a federal law--apparently never used in the 113 years it has been on the books--that forbids states to decide presidential elections based on rules adopted after the voting.
Lawyers for Texas Gov. George W. Bush had advanced grand constitutional arguments against the hand recounting of Florida's votes. But the justices turned away those claims in their brief order Friday announcing that they would take the case next week. Instead, the justices said they would consider whether the Florida Supreme Court's decision to require that recount results be included in the state's vote totals violated the Electoral Count Act of 1887.
That law requires that "any controversy or contest" concerning the naming of members of the electoral college must be decided based on "laws enacted prior to the day fixed for the appointment of the electors."
In their appeals, Bush's lawyers say the Florida Supreme Court on Tuesday violated that statute because it "retroactively changed the law in Florida," which authorized Katherine Harris, Florida's secretary of state, to certify the winner of the presidential race on Nov. 14.
Vice President Al Gore's lawyers dispute that interpretation.
But the fact that the justices agreed to consider the case came as a surprise to many legal experts, who had expected the court would wait to see how events developed before jumping into the fray.
The announcement was an ominous sign for the Democrats. The high court has almost complete discretion on what cases it considers, and four of the nine justices must agree to grant a petition for review.
Several legal scholars said the justices would not have taken the case, George W. Bush vs. Palm Beach Canvassing Board, 00-836, if the initial briefs had not caused a majority to lean in Bush's favor--although all cautioned that the justices often change their view of a case after studying additional briefs and arguments.
"They wouldn't have granted review unless they were going to reverse" the Florida Supreme Court's ruling, said UC Berkeley law professor John C. Yoo, who served as a law clerk to Supreme Court Justice Clarence Thomas.

A Fifth Vote Is Likely There
Although only four justices need to agree to have a case considered, "usually, in a case like this, four justices wouldn't" vote to take a case "unless they thought they had a fifth vote," Yoo said.
"Think of if from the point of the four: You would bring the U.S. Supreme Court into a highly contentious battle, and you would lose 5-4 and damage the prestige of the court," he added.
The move to hear the case puts the court into the middle of one of the most contentious political disputes in generations. If the eventual decision is closely divided, it could put a partisan taint on the court, just as the Florida Supreme Court's decision appears to have done for that panel, at least in the view of many Republicans.
All seven of Florida's justices are Democratic appointees, and Republicans have harshly criticized Tuesday's ruling by the state court as partisan.
The balance is reversed at the U.S. Supreme Court. Seven of its nine justices are Republican appointees. Two of them--Justices David H. Souter and Clarence Thomas--were appointed by the candidate's father, President Bush.
Gore's team put a brave front on the news. "I think it's good for them to take on something this fundamental," said David Boies, Gore's lead attorney in Florida.
"It's fine to have a hearing. A hearing may well benefit us. It will put to rest the kind of arguments that can be made," Boies said.
"This should be resolved in the courts, not in the streets," he added, referring to the protest in Miami that Democrats say convinced the county's election board to halt recounts.
Boies said he remained confident that, after reviewing all the arguments, the justices would end up siding with the Democrats. At least some legal experts said he may be correct.
As the case currently stands, the Republicans are, in effect, asking the high court to rule that Florida's mechanism for resolving a dispute over electors has been so distorted by the Florida Supreme Court that the state court's ruling "can be considered a sham and not entitled to respect," said Vikram David Amar, a law professor at Hastings College of Law in San Francisco, who has studied the 1887 law.
"That is an extraordinary argument," Amar said, because the U.S. Supreme Court generally gives considerable deference to state courts' interpretations of their own laws.
The 1887 law would seem to come into effect only if a state had "failed to make a choice" of its electors, Amar said. Even with the recounts, it remains too early to say that, he added. The high court may, in the end, decide that taking the case at this stage of the proceedings was an error, he said.
Moreover, if Gore is behind in the vote count on Sunday and Harris certifies Bush as the winner, the case could become moot, said Stanford University law professor Pamela Karlan.
But because Gore's attorneys have already said he plans to contest the election returns on Monday morning, the continuing litigation is likely to keep the controversy alive until Friday's scheduled hearing before the high court, other legal experts said.
The law in question was enacted after one of the nation's worst political debacles: the election of 1876.
Then, the Democratic candidate, Gov. Samuel J. Tilden of New York, won the popular vote on election day and seemed to have won an electoral vote majority as well. But Republicans sent their lawyers to several Southern states, including Florida, and succeeded in disqualifying enough Democratic votes to tip the electoral college to the Republican candidate, Rutherford B. Hayes of Ohio.
The election was eventually settled in the House of Representatives after Hayes won support from key Southern Democrats by promising an early withdrawal of federal troops from Southern states that had fought in the Civil War. The withdrawal left freed slaves in the former Confederate states with little protection and ushered in nine decades of legalized discrimination against black citizens.
Once Democrats regained power in the 1880s, Congress passed the new law, designed to avoid a repeat of the maneuverings that led to the 1876 standoff. The part of the law now at issue appears never to have been litigated, according to Bush's lawyers, although a separate provision became an issue in 1969, when a member of the electoral college chosen to vote for Richard Nixon voted instead for George C. Wallace.
The high court's justices have been reluctant to use broad constitutional claims to second-guess decisions by state officials. And after a series of decisions upholding state authority against federal challenges, a sudden ruling in the opposite direction could be attacked as hypocritical. The focus on the 1887 law could offer a more direct and appealing way for them to decide the case.
In ruling, the justices may look for guidance to several cases on term limits that came before them five years ago, Yoo said.
At that time, several states tried to limit the terms of members of the U.S. House of Representatives. On a 5-4 vote, the justices struck down those laws and said federal rules, not state laws, controlled the election of members of Congress.
Justice Anthony M. Kennedy, a conservative, joined the four liberal-leaning justices of the court in the majority. The dissenters were the conservatives, led by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia and Clarence Thomas. But now that ruling may give those conservative justices a good argument for siding with Bush.
The key question before the court will be whether the Florida Supreme Court decision amounts to an after-the-fact change in Florida's voting laws.
Florida law said that Harris "may ignore" returns submitted after Nov. 14. The Florida court ruled that enforcing that deadline would effectively nullify another section of Florida law that allows a candidate to ask for a manual recount.
Bush's lead lawyer in the case, Theodore B. Olson, told the high court in a brief filed Wednesday that the Florida Supreme Court ruling was an "arbitrary judicial departure from the well-established law of Florida" and therefore a violation of the 1887 law.

Ruling Was Ordinary Act, Gore Team Says
Gore's lawyers, in a brief filed Thursday, dismissed that argument. The Florida Supreme Court decision "amounts to an ordinary act of statutory interpretation of a law enacted prior to the election, not to a new 'enactment,' " wrote Harvard law professor Laurence H. Tribe.
Other legal experts argue that the 1887 law could be read as upholding the decision-making power of a state Supreme Court.
One section of the law--a passage not quoted by Bush's lawyers--says that if a state provides "judicial or other methods" for resolving election disputes, those procedures "shall be conclusive."
That provision "makes the Florida Supreme Court . . . the ultimate arbiter of the state's contested election," asserts University of Baltimore law professor Charles Tiefer, writing in the weekly Legal Times.
The justices asked both sides to file briefs of no more than 50 pages by 4 p.m. Tuesday, with final reply briefs due Thursday. They will hold a 90-minute oral argument Friday.
Republican leaders in the Florida state Legislature announced Friday that they will intervene in the Supreme Court case, on Bush's side, and will be represented by Harvard law professor Charles Fried, who was solicitor general of the U.S. during the Reagan administration.


* * *
Savage reported from Washington and Weinstein from Los Angeles.
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GOP Files 5 Military Ballot Suits After Pulling Statewide Action
Saturday, November 25, 2000


Republicans filed suits in five Florida counties late Saturday to force the review of disputed military overseas ballots, after withdrawing their statewide suit from Leon County Circuit Court.

Beth A. Keiser/AP

Thursday: A Fla. Supreme Court worker hands out copies of the court's ruling on the Miami-Dade County recount at the courthouse in Tallahassee, Fla.



As Al Gore ate into the extremely narrow Bush lead in other recounts, lawyers filed suits with court clerks in Hillsborough, Okaloosa, Pasco and Polk counties. Bush spokeswoman Mindy Tucker at first said a suit also was filed in Orange County but later said she learned it was prepared but would be filed early Sunday.

No other county-level suits are planned "at this time," she said.

Rather than pursuing the statewide suit the campaign instead is suing individual counties "to require the electoral boards to count the signed ballots of men and women risking their lives on the front lines of America's defenses overseas," said Bush campaign lawyer Ben Ginsberg.

George W. Bush's legal team said the majority of the counties named in the statewide suit were in "substantial agreement" with the Republicans to reconsider military ballots from overseas and so the suit is not necessary.

Bush spokesman Ari Fleischer told Fox News that 6 of the 14 counties they had been looking at were already recounting absentee military ballots. The counties voted heavily in favor of Bush, who netted 88 additional votes and Gore received 43, a net gain of 45 votes for Bush. Fleischer also said 3 additional counties will do so Saturday or Sunday.

In the five counties being sued by Bush, elections officials rejected more than 250 overseas absentee ballots. Of those five counties, two — Orange and Pasco — had more votes for Gore.

"The votes of many servicemen and servicewomen that had been wrongfully excluded will now be counted," according to the court filing.

The Gore campaign maintained that Democrats wholeheartedly beleive that "all legally cast military ballots should be counted," spokesman Jenny Backus said.

Republicans said they feel confident that the canvassing boards will look over the rejected overseas ballots before the 5 p.m. Sunday deadline for certification by Secretary of State Katherine Harris.

Ginsberg accused Democratic attorneys of prodding some counties "to evade bipartisan calls" to count the ballots through procedural objections.

Hundreds of ballots had been rejected for lack of a postmark, smudged postmarks, domestic postmarking, missing the Nov. 7 deadline and signatures on ballots that did not match those on file at election-registration offices, among other reasons.

Bush's attorneys pleaded their case Friday at the Second Circuit Court of Florida and Leon County, before Circuit Court Judge L. Ralph Smith Jr. Their goal was to make the 14 counties reconsider their rejection of overseas military ballots.

Two counties complied with Republican wishes Friday — Duval and Clay — and counted military ballots that had earlier been rejected, adding to Bush's lead over Vice President Al Gore by 32 votes. Even so, Judge Smith announced that he was unlikely to force the other 12 counties to reconsider.

"Without any proof that any of these canvassing boards have not complied with the law, this court is very hard-pressed to grant any relief," Judge Smith said.

Along with arguing that Democrats had confused county boards, the Bush attorneys also argued that federal rules mandate that overseas military ballots must be delivered free of postage and as rapidly as possible. They insisted that more evidence could be presented Saturday, and the judge never issued his ruling before the case was withdrawn.

The GOP asked Judge Smith to order elections officials to reconsider about 500 disqualified ballots according to estimates by the Associated Press, although estimates by both campaigns place that number at closer to 800. The earlier count of absentee military ballots favored George W. Bush, with 1,380 going for the Texas governor and 750 his rival, Vice President Al Gore.

The Texas governor currently officially leads Gore in Florida by 930 votes. Unofficial tallies factoring in continuing hand recounts from largely Democratic Broward and Palm Beach counties narrow the margin to about 500.

'No Gore People in This Courtroom'

Bush campaign lawyers said no attorneys for Gore were offering any arguments Friday against including disputed military ballots, because they would be ashamed to insist that American soldiers' votes should be thrown out altogether.

"There were no Gore people in this courtroom," said Bush campaign attorney Fred Bartlit. "Nobody wants to come to court and make any argument saying that military people's ballots shouldn't be counted.

"Instead of coming to court and standing up and making their points — there's armies of Gore lawyers right now in all of these precincts, all of the counties — arguing that the very kinds of ballots that are now being accepted, ought to be rejected."

Prior to the hearing, however, Gore campaign spokesman Doug Hattaway said his camp supported counting ballots that didn't have a postmark, but were signed and dated.

But Tucker said Democrats in Florida are still filing protests to challenge those county boards that are now counting some of the previously discarded overseas ballots. "Clearly they're saying one thing and doing another," she told reporters.

— Fox News' Andrew Hard, Carl Cameron and Brett Baier and the Associated Press contributed to this report

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Saturday November 25 1:20 PM ET
Gore Intends Vote Challenge

By DAVID ESPO, AP Political Writer

Al Gore (news - web sites)'s lead lawyer said Saturday the vice president intends to challenge certified vote counts in potentially decisive Palm Beach County, where thousands of ballots are uncounted because the voters' intention was not immediately clear in a White House contest like none other.

David Boies, Gore's recount lawyer, said he had decided to add that key county to others where challenges are to be raised - most important of which is Miami-Dade, where the re-examination of ballots was brought to an unexpected halt earlier this week, a setback for Gore.

In Palm Beach, Gore forces think they have a chance to pick up a majority large enough to be decisive in Florida, and thus in the election.

The Gore forces weren't satisfied with the standard elections officials were using in examining disputed ballots.

The court challenge will be filed Monday, well before the U.S. Supreme Court (news - web sites) hears George W. Bush (news - web sites)'s arguments for rejecting all hand recounts of Florida's ballots. A decision by the high court in favor of Bush potentially could award Florida's 25 electoral votes to the Republican ticket and bring an end to the tumultuous election.

In a telephone interview from Tallahassee, Boies said the extended challenge would be filed as soon as legally possible - after the county-by-count results' certification by Florida Secretary of State Katherine Harris (news - external web site), expected by 6 p.m. EST Sunday.

``We're preparing contest papers that will be filed Monday, as early in the day Monday as we can get them done,'' Boise told The Associated Press.

Gore's Palm Beach challenge is to center on the way questionable ballots are handled - not on the ballot itself, which some voters said led them to vote for Reform Party candidate Pat Buchanan (news - web sites) instead of Gore.

In Washington, D.C., pro-Bush and pro-Gore demonstrators gathered across the street from the vice presidential residence at the Naval Observatory, on embassy row. Initially, their numbers were about even strength - 20 each side. But hundreds of Bush reinforcements, alerted via e-mail the day before, arrived in the next hour overwhelming the opposition

``Get out of Cheney's house,'' they chanted, in expectation that GOP Vice Presidential nominee Dick Cheney (news - web sites) would be its next occupant.

A sign read ``Gore, Milosevic: What is the difference?'' - a reference to the ousted Yugoslav strongman Slobodan Milosevic (news - web sites).

``See how hostile they are?'' said Gore supporter, Ellen Frank, visiting from Long Island, N.Y. She carried a sign that said ``Mothers Against Drunk Presidents.''

At a Tallahassee, Fla. news conference, George Mitchell of Maine, the former Democratic leader in the U.S. Senate, argued that the nation's paramount interest is in seeing that the people's will - even if expressed on flawed ballots - prevail.

``Up to now in this process, no court - state or federal - has accepted the assertion that hand recounts are unfair or unconstitutional,'' said Mitchell, a Gore supporter. ``The courts and the people know better.''

Meantime, election officials worked against Sunday's deadline to report their county ballot counts to Tallahassee.

Gore was picking up votes as officials in Broward and Palm Beach Counties pressed ahead with manual recounts triggered by the Democrats.

``I feel we're racing against the clock but I feel we're going to make it,'' Palm Beach board member Carol Roberts said as Democrats hinted they may challenge the results in court.

Two senior members of Gore's legal team, speaking on condition they not be identified, said Saturday the vice president is seriously considering challenging the Palm Beach results, where election officials are using a standard for approving votes that is stricter than Gore wants. Gore wants all dimpled ballots - those indented but not punched through - counted, though the three-member board is only counting them when it's clear the voter had trouble punching the rest of the ballot, too.

The Gore team already has said it will contest results in Miami-Dade, which suspended its hand recount because the county couldn't meet the Sunday deadline, and, almost certainly, Nassau County, where the canvassing board decided to use the Nov. 7 vote totals instead of the results of a machine recount that missed about 200 presidential ballots. The decision resulted in a gain of 52 votes for Bush.

The maneuvering churned on against the backdrop of Republican running mate Dick Cheney's release from a Washington hospital. The 59-year-old vice presidential candidate said doctors had placed him under ``no restrictions'' that would interfere with him taking office.

Cheney told reporters he and Bush had talked by phone and chatted about his health. But he added, they also spent a lot of time talking about Florida, ``which is what we usually talk about these days.''

They weren't alone in that. Especially on a day when the U.S. Supreme Court said it would hear arguments on Dec. 1 on Bush's attempt to shut down the manual recounts that threaten his tenuous hold on the state that stands to pick the next president.

Bush found additional support when a spate of counties heeded his plea to reconsider overseas military absentee ballots originally rejected for faulty postmarks.

Going into Saturday, Bush held a lead of roughly 700 votes - down from 930 when the manual recounts began - with a 5 p.m. EST Sunday deadline set for the counting to stop. After that, Harris is permitted to certify a statewide winner under a Florida Supreme Court (news - web sites) ruling.

Both campaigns said they might not accept that as final, though, and Gore's aides underscored the point.

``We believe we stand on both strong political and legal ground for fighting beyond Sunday,'' said Ron Klain, a Gore legal adviser, who cited an abrupt decision Wednesday by officials in Miami-Dade County to abandon their recount.

``We need a fair count of the ballots in question and that must include freedom from intimidation,'' said Gore's running mate, Sen. Joseph Lieberman (news - web sites) of Connecticut.

Lieberman's annoyance with the Republicans' street protest tactics drew a Republican rebuttal.

``I don't recall Senator Lieberman opposing Jesse Jackson's organized protests orchestrated with the AFL-CIO in Palm Beach County,'' said Bush campaign spokesman Ari Fleischer.

In a letter to the Justice Department (news - web sites), Democratic members of Congress argued that protests that took place earlier in the week in Miami - cited by the canvassing board when it shut down its recount - ``could amount to voter intimidation of federal law.''

But former Senate Majority Leader Bob Dole shot back: ``Members of Congress write letters by the hundreds. Some of them are even read.''

The Supreme Court's decision to accept Bush's appeal was a surprise in some quarters because elections are often seen as state business, and an earlier Bush challenge had been turned back to the state by a federal appellate court.

The court set up a breakneck schedule for next week: legal briefs are due on Tuesday and responses Thursday, then 90 minutes of oral arguments starting at 10 a.m. Friday.

Bush sought the court's intervention after the Florida Supreme Court ruled unanimously to continue the state counting deadline from Nov. 17 to Nov. 26, and to allow election officials to consider a voter's intent in the case of disputed ballots.

Gore's lawyers had argued that the Florida process of recounts, punctuated by state court disputes over how to conduct them and whether to include disputed military ballots from abroad, was a state matter.

``The petition for a writ of certiorari is granted,'' the Supreme Court said, announcing it will hear the appeal next Friday, Dec. 1.

The court did nothing that would deter Harris from certifying the outcome of the election Sunday, scheduled for sometime after 6 p.m. EST. A strong Bush supporter, she had been to the brink of certification at least once before, when a different court intervened to stay her hand.

The Florida Supreme Court had ruled that the tally should include any recounted ballots certified by 5 p.m.

The winner stands to receive Florida's 25 electoral votes, enough for either Bush or Gore to gain the nationwide majority of 270 needed to claim the presidency.

The state's 25 electors must be chosen by Dec. 12.

And state Rep. Tom Feeney, a Republican and the new speaker of the Florida House, said GOP legislative leaders were seeking to intervene in the case before the high court to make sure the state wasn't disenfranchised by the lingering legal dispute.

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Saturday November 25 11:42 PM ET
Florida Recount at a Glance

By The Associated Press,

Developments in the Florida presidential election recount:

COUNTING:

-Statewide: Republican George W. Bush (news - web sites)'s unofficial lead is 466 votes if hand recounts and recertified totals from at least three Democratic-leaning counties are included. His official lead over Democrat Al Gore (news - web sites) absent any ballots from these recounts is 930 votes. Broward and Palm Beach counties were continuing hand recounts Saturday.

-Broward County: With all 609 precincts and absentees recounted, plus 2,372 questionable ballots reviewed, Gore has a net gain of 565 votes. In other words, Gore picked up a net gain of 428 votes from the ongoing review of questionable ballots. Officials were hoping to finish their count Saturday night. Republicans complained Saturday that election officials were counting questionable absentee ballots.

-Palm Beach County: Results from 305 of 637 precincts showed Bush gained 10 votes, though that doesn't include tallies from weekend recounts showing double-digit Gore gains that officials have been slow to report.

-Bay County: The canvassing board voted Friday to accept 12 previously rejected overseas ballots. That resulted in a net gain of two votes for Bush.

-Brevard County: Bush picked up a net of eight votes after canvassing board members voted Wednesday to accept 20 previously rejected overseas absentee ballots.

-Clay County: Canvassing board voted Friday to accept 14 of 17 previously rejected overseas ballots. Bush had a net gain of 12 votes.

-Collier County, Bush picked up a net of one vote on Saturday. The canvassing board reconsidered 43 overseas ballots that had been rejected previously and accepted 17 of them. Of those, Bush received eight votes, Gore had seven and Ralph Nader (news - web sites) had two.

-Duval County: Canvassing board voted Friday to accept 68 of 81 previously rejected overseas ballots. Bush had a net gain of 20 votes.

-Miami-Dade: Counting suspended on Wednesday. Only votes not counted by the Secretary of State are six votes for Gore from earlier sample hand count of three precincts.

-Nassau County: Canvassing board voted 3-0 Friday to use the Nov. 7 vote totals instead of the results of a recount which inadvertently missed about 200 presidential ballots. The action resulted in a net gain for 52 votes for Bush, including one overseas absentee ballot that the board decided to use for the total.

-Okaloosa County, the county canvassing board on Wednesday awarded two previously rejected overseas ballots to Bush. Both involved bad postmarks. No votes for Gore.

COURTS:

-Gore plans to contest some county results, including those in Palm Beach and Miami-Dade counties, in state courts Monday, a campaign spokesman said.

-Bush's lawyers dropped a lawsuit over rejected overseas absentee ballots, but on Saturday vowed to take legal action in individual counties to pad his lead with votes from military personnel.

-The U.S. Supreme Court (news - web sites) will hear one of Bush's appeals next Friday that seeks to bar hand-counted ballots in the disputed election. At issue will be Bush's request to overturn the Florida Supreme Court (news - web sites)'s decision to allowing the hand recounts to continue.

TIMETABLE:

-Secretary of State Katherine Harris (news - external web site) plans to certify the election results about 6 p.m. Sunday, an hour after the state Supreme Court ruled hand recount results must be turned in to her.

-Palm Beach County's canvassing board plans to continue counting questionable ballots on Sunday.

QUOTES:

- ``Because someone paid for my hotel room, because someone paid for my plane ticket, I'm a thug?'' - Terry Benham, a Little Rock, Ark., lobbyist who was among Republican demonstrators outside the Broward County courthouse in Fort Lauderdale, Fla., on Saturday.

- ``They object, what a surprise.'' - Palm Beach County canvassing board chairman Charles Burton, a Democrat, after Democrats objected to a ballot with a pinhole vote for Bush.

- ``Until it comes out the right way, the Gore campaign is going to ask for recounts.'' - New Jersey Gov. Christine Whitman, a Republican, to contest Palm Beach results

- ``Whatever the secretary of state has to say, somebody will contest those votes and at that point people are going to say, `Enough is enough. It's time to put this puppy to bed.'' - Jim Duffy a Democratic strategist.

- ``Massage and its benefits are nonpartisan. My intent is to see that people here operate with a clear mind.'' - Daniel Grief, a licensed therapist who was offering free massages outside the Palm Beach County recount.

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