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.
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
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:
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
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
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
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.
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
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