Again, We're Left Out Of Fight for Presidency
                   by Lars Erik Nelson
                   WASHINGTON - Exactly two years ago, lawyers were trying to take
                    a President away from us. Yesterday, they were trying to give us one.
                   And both times, we, the voters in this great democracy, could only watch.

                   Two years ago, it was independent counsel Kenneth Starr urging the House
                   Judiciary Committee to impeach President Clinton.

                   Yesterday, it was Michael Carvin trying to give us President George W. Bush and
                   David Boies trying to give us President Al Gore.

                   Do we have any rights? At one point, Carvin said the only person with a
                   statutory right in this crucial dispute was Florida Secretary of State Katherine Harris,
                   who had the right to call the election when she chose.

                   Barry Richard, another lawyer for Bush, said the court had no business interfering
                   with Harris' authority to certify the result or with the statute that says election returns
                   had to be submitted by Nov. 14.

                   On the basis of such arguments does the choice of our President depend.
                   But, as far as we can tell from their tough questions, the court wasn't buying this line
                   of reasoning. They seemed to want to bend over backward to learn the true intent of the
                   voters and take a reasonable amount of time to do so, regardless of statutory deadlines.

                   Chief Justice Charles Wells hinted that the dispute in his mind was simple: How late
                   could the election process including manual recounts continue without
                   jeopardizing the certification of Florida's electors in the Electoral College?

                   The answer was Dec. 12.

                   Justice Harry Lee Anstead asked Joe Klock, representing Harris, whether the Nov. 14
                   deadline was absolute.

                   "Of course it's not absolute," Klock conceded.

                   Justice Barbara Pariente questioned whether Harris, a co-chairwoman of Bush's
                   Florida campaign, really used her discretion in rejecting the requests for
                   hand counts in Palm Beach and Broward counties.

                   Pariente pointed out that Harris said she would not recognize manual recounts as a
                   reason for delay. "She didn't really exercise her discretion," Pariente said.
                   "That was what she announced the day before."

                   Klock tried to argue that voters' failure to follow instructions failure to punch fully
                   through a ballot was no reason to have a manual recount to tally their votes.

                   But Justice Major Harding observed that Florida has had cases going back to the
                   1800s in which voters failed to follow instructions and their votes were still valid.

                   Likewise, the justices were not impressed by Carvin's argument that a manual
                   recount was flawed and unconstitutional. Florida law specifically provides for hand
                   counting disputed ballots.

                   Richard, a lawyer for Bush, made the strongest legal case for his client. He said
                   the legislature explicitly empowered Harris to certify elections, using her own
                   discretion. If the court interfered, it would be usurping her authority and the authority
                   of the Legislature a violation of the separation of powers.

                   Gore's case requires the broadest interpretation of the law, a divining of the
                   Legislature's genuine intent, and subordinating a legal deadline to the rights
                   of the voters to have their votes counted.

                   To chief justice Wells, the decision comes down to this: He is willing to defend the
                   rights of the 72,000 voters who cast disputed ballots, but only if the process
                   does not sabotage Florida's right to have its electors included when the Electoral
                   College meets Dec. 18.

                   But somehow, twice in two years, we have seen our country's most important
                   political decisions taken out of our hands and made subject to the arguments of
                   people who seem to be making the law up as they go along.

                   In impeachment, our representatives did it by choice. In Florida, even the lawyers are
                   prisoners of an electoral process that has run out of control.

                    Original Publication Date: 11/21/2000

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