The Legal Challenges

By ADAM COHEN

When it became clear what a mess Florida was, both the Gore and Bush campaigns put out a nationwide dragnet for lawyers to help them fight for the state. We are a nation of laws, and there seems to be no limit to the constitutional provisions, statutes, court precedents and common-law principles that may be called upon to determine who will be the next President. The legal battle so far has taken in issues as majestic as the 12th Amendment to the U.S. Constitution and as humble as the status of the now famous dimpled chad.

CHADS AND DIMPLES

--In the hand recounts, what standards should be used to determine the intent of the voter?

Democrats say election officials must count any ballot for which they can reasonably determine the voter's intent, including dimpled chads--ballots on which a box for a candidate was indented but not actually pierced. The Republicans argue that voting machines are more reliable than humans and that no ballot should count if it doesn't register in a machine tabulation.

The Florida Supreme Court ordered Florida secretary of state Katherine Harris to accept manual recounts, but declined to give local boards guidance on chads. The court did, however, approvingly cite a 1990 ruling by the Illinois Supreme Court: "Where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law." The Illinois high court examined 27 ballots with dimpled chads and held that eight of them were valid votes--enough to decide that election.

Other states have held that dimpled chads may be counted. A famous case involved Congressman William Delahunt, who owes his seat to a Massachusetts judicial court's decision in 1996 to count dimpled chads, giving him a victory in a race in which he had been trailing by more than 200 votes. A Louisiana court refused to count chads in 1984, as did a lower court in Ohio in 1998. But a Texas statute expressly says a ballot can be counted where "an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote." A 1997 amendment, signed by Governor Bush, favors a manual recount of disputed votes above a machine recount.

Under Florida law, local canvassing boards have a lot of discretion. Palm Beach County circuit-court judge Jorge Labarga ruled that dimpled chads should count as long as the board could discern the voter's intent. The board has apparently stuck to a restrictive approach, not counting dimples in the presidential race if a voter made full holes in other races on the ballot. Its reasoning: a voter who left dimples in many races probably had trouble punching clear holes. But a voter who left a dimple only in the presidential race may have been reluctant to vote in that one race.

Democrats counter that the Palm Beach equipment made it particularly hard to punch through the presidential column and that any dent clearly shows intent. At a hearing on Friday, they brought in a developer of the system and others to testify on why it was harder to punch holes in the presidential column. Gore has said that if he loses partly because these dimpled chads were not counted, he will make it part of his suit contesting the election.

Broward County has adopted a looser standard. Its board is counting dimpled chads even when the rest of the ballot contains clean holes, and is even taking into consideration which party the voter supported in other races.

MIAMI-DADE'S FIASCO

--After the state supreme court approved the hand recounts, Miami-Dade abandoned its recount because it saw no way to complete it. Did Miami-Dade have that right?

Democrats believe a hand recount there could have provided Gore's margin of victory. They argue that once the canvassing board found a tabulation error, it was required to conduct a full manual recount. Last Thursday the Florida Supreme Court refused to order Miami-Dade to keep counting. But it ruled without prejudice, meaning it can still revisit the issue and Democrats intend to contest that decision this week. Democrats charge that the county board stopped because of intimidation from a boisterous Republican protest at its offices, and a board member said at one point the protests played a role in the decision to stop counting. Six Democratic Congressmen have written to the Justice Department charging that this intimidation was a violation of the Voting Rights Act.

Before Miami-Dade stopped counting, the board had found 156 additional votes for Gore. When it halted the count, the board said it would not be adding those votes to its previous tallies. The Democrats have challenged this decision, arguing that once a canvassing board has identified legal votes, it has no discretion to toss them aside.

SEPARATION OF POWERS

--Did the Florida Supreme Court usurp the executive power of the secretary of state and the legislative power of the legislature?

Katherine Harris argued that Florida election law gave her discretion, as the state's chief election official, to reject amended vote totals submitted by counties after the seven-day deadline set by statute. The Florida Supreme Court agreed that Harris had discretion to reject the new totals, but it ruled that she had abused it. Harris had the right to reject the recounts, the court held, only if they were submitted so late that including them would prevent a candidate from contesting the results or preclude Florida from qualifying its electors in time. This standard does not quite make Harris' function merely "ministerial," as the Democrats argued in the supreme court, but Republicans argue that it breaches her powers as an elected official.

The U.S. Constitution gives each state's legislature the power to determine how presidential electors will be chosen, and the Republicans argue that the state court usurped that role in deciding that the seven-day deadline for certification was not binding. "The court rewrote the law," Bush said last week.

State supreme courts are generally the definitive interpreters of state election law, and in this case the Florida court declared that it had to resolve two conflicting legislative provisions. Section 102.111 states that county returns not received by the secretary of state by 5 p.m. of the seventh day following an election shall be ignored. But Section 102.166(1) provides that losing candidates have the right to ask for recounts up until the time the local board certifies its results. Many counties, particularly large ones like Miami-Dade, might not be able to conduct full manual recounts if the seven-day deadline were strictly enforced. Given this conflict, the high court ruled that it had to give precedent to determining accurately the will of the voters.

Among the issues the U.S. Supreme Court has decided to consider is whether the Florida court violated federal law by changing the state's election laws after the voting. Democrats insist that resolving the conflicting provisions did not amount to rewriting the law. Somewhat ironically, they also find themselves on the side of states' rights in arguing against the Republicans that state rather than federal courts should be the final arbiter of state election laws. Bush brought the case to the Supreme Court, and it might be considered moot if he's the top vote getter in the later as well as earlier tallies.

ABSENTEE BALLOTS

--Will uncounted absentee ballots now be counted?

The Republicans are fighting to reinstate absentee ballots, many from overseas military personnel, that were rejected on technical grounds. In this fight, the Republicans and Democrats have switched their usual positions. The Democrats want the election law applied strictly. The Republicans are arguing for more lenient rules.

At stake are perhaps hundreds of ballots sent in by military voters that lack a postmark. Florida law requires that ballots be postmarked no later than Election Day. But Republicans argue that military voters sometimes have no control over when and how their mail gets postmarked.

The Republicans filed a lawsuit last week in Leon County to compel 14 predominantly Republican counties to get these ballots counted. The Republicans contend that the Democrats had a systematic plan to disenfranchise military voters; the Democrats say they were only making sure that illegal ballots were not counted. The argument that military voters should not be disenfranchised because of factors beyond their control is a solid one, and it has great p.r. value. The Leon County judge listened patiently to the Bush arguments on Friday but then expressed skepticism about whether there was much he could do at this point. The next day the Republicans dropped that lawsuit and decided to sue several counties directly. The canvassing boards in some of those counties have re-examined their absentee ballots, giving Bush a net gain of dozens of votes over the weekend.

Many absentee ballots that have not been counted were rejected for legitimate reasons. Some were cast by voters who showed up to vote in person on Election Day. Others were not signed. It is unlikely that absentee ballots with serious flaws like these will be counted. Perhaps most difficult are the unknown number of absentee ballots thrown out because rushed election workers could not read the handwriting or decided that the signature on the absentee ballot did not match one on file in the election records.

The Democrats have an absentee-ballot challenge of their own. In Seminole County, a Republican election official allowed Republican functionaries to work out of the election office, adding required information on thousands of absentee-ballot applications that had not been provided by the voters. Democrats have gone to court to challenge all 15,000 absentee votes cast in the county.

THE CONTEST PHASE

--What is a candidate's recourse once the votes have been certified?

Florida law allows the losing side to "contest" the results of an election only after they are certified. At this stage, the disputes move from the local canvassing board to the courts. The procedure calls for holding a hearing in circuit court, at which witnesses can testify and evidence can be presented. If the Democrats contest, they could present testimony ranging from Palm Beach voters saying they were confused by the butterfly ballot to members of the Miami-Dade canvassing board saying they were intimidated into dropping their manual recount. Democrats could also present statisticians to argue that some of the reported results--like the number of votes for Pat Buchanan in Palm Beach County or the number of voters who did not make a choice for President--are statistically unlikely.

The judge hearing the case may investigate the allegations and "provide any relief appropriate under the circumstances." That appears to be broad authority, but it is unclear what a judge would actually do at this point. A separate Palm Beach County lawsuit asking for a new election there has already been denied, and in any case, there would be little time for one. Similarly, the claims by black voters that they were impeded in voting would be difficult to address at this point without ordering a new election. A court might be more likely to take action with respect to existing ballots, such as ordering that the 156 votes already counted in Miami-Dade be added to the totals.

If the Democrats contest the election as planned, the halted recount in Miami-Dade County will be a central part of their case. The intimidation claim gives them what they see as the moral high ground. They believe they can recover a large number of votes in Miami-Dade if the recount goes forward. If a court finds that the canvassing board was illegally intimidated, it can order that those ballots be counted, either by directing the board to do so or by appointing a special master to take charge. The Democrats may also challenge the Nassau County canvassing board's decision to certify results from election night rather than from a machine recount that gave Gore an additional 52 votes.

THE LEGISLATURE'S ROLE

--Can the Florida legislature choose which electors to send to the Electoral College?

A 1948 federal statute holds that when the outcome of a presidential race is in doubt, a state's presidential electors "may be appointed...in such a manner as the legislature of such state may direct." Florida speaker of the house Tom Feeney ordered up a legal analysis that concludes that the legislature has the right to step in and select the state's 25 electors. If the outcome remains in doubt as the Dec. 12 deadline approaches, the Republican-dominated legislature may attempt simply to select the Bush electors. A more radical possibility is that if Gore is ahead of Bush in the final count, the legislature could overturn that result and certify the Bush electors.

No legislature has ever used the 1948 law to select electors, and it is not clear if the American public would accept it. Another potential minefield: passing a bill to select electors would require the approval of Governor Jeb Bush, the candidate's brother.

EQUAL PROTECTION

--Do hand recounts in some counties but not others violate the U.S. Constitution's guarantee of equal protection?

The Bush camp argued in federal court that ordering manual recounts in four counties selected by the Gore campaign denies equal protection of the law to voters in counties where no recounts have been ordered. In their briefs, the Republicans cite one-person, one-vote cases like Baker v. Carr, which struck down apportionment schemes that gave heavily populated urban districts the same representation as less populated rural ones. Here the Republicans flip the doctrine, saying that by ordering recounts in populous counties, the Gore campaign is depriving less populated counties of their right to equal representation.

The one-person, one-vote cases were aimed at laws that expressly gave some voters more representation than others. Florida's recount law, on the other hand, is designed to ensure that all voters in the state get the same vote. A recount should not give a county's voters more or less representation; it should simply ensure that everyone who cast a valid ballot is given a vote.

The two lower federal courts that heard the Republican equal-protection claim quickly dismissed it. When the U.S. Supreme Court accepted Bush's appeal last week on several other issues, it declined to hear that one.

CHECKS AND BALANCES

--Who would decide if Florida's branches of government don't agree?

One weakness of America's checks-and-balances system is the possibility of a constitutional crisis when any two branches of government are locked in conflict. It is conceivable that the Florida Supreme Court, which is heavily Democratic, and the Florida legislature, which is heavily Republican, could reach a deadlock about which set of electors rightfully represents the state.

In 1803 the U.S. Supreme Court held in Marbury v. Madison that in conflicts between the branches, the judicial branch has the final word. That principle applies at the state level as well. State courts regularly strike down laws passed by state legislatures and issue orders that are binding on Governors. That means that, presumptively, a ruling of the Florida Supreme Court would trump an act of the Florida legislature. But if the two branches reached an irresolvable impasse on a matter as important as a presidential election, it is probable that the U.S. Supreme Court would find a reason to come in and break the deadlock.

FINAL ARBITER

--What role will the U.S. Congress play?

The U.S. House and Senate will meet in what is usually a routine joint session on Jan. 5 or 6 to count the Electoral College vote. If the Florida results are still at issue, an 1887 law permits the House and Senate, by a majority vote in each, to throw out Florida's electors. One reading of the 12th Amendment holds that Gore would then become President: he would have a majority of the remaining electors. But another reading says the election would then be thrown to the House to decide. In that case, each state would cast one vote, determined by the U.S. Representatives from that state. A majority of the congressional delegations, 28, are Republican. If a President were chosen in this manner, the U.S. Senate would then select the Vice President. The Senate will be evenly divided, 50-50, if Democrat Maria Cantwell hangs on after this week's recount in Washington State.

The last time Congress decided a dispute between electors was in 1960, when Richard Nixon won the initial count in Hawaii and John Kennedy won the recount. But little was at stake then, since Kennedy already had the Electoral College votes he needed. Presumably, the Republican-dominated House would be inclined to select Bush. The prospect of Congress selecting the next President is odd enough. Making it even more surreal: the presiding officer at such a proceeding would be Vice President Al Gore.

--With reporting by Viveca Novak/Washington and Amanda Ripley/Tallahassee

With reporting by Viveca Novak/Washington and Amanda Ripley/Tallahassee