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The court comes through for Gore
The recounts count, and dimpled chads might, too, but a menacing James Baker promises the GOP will fight back.

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By Jake Tapper

Nov. 21, 2000 | TALLAHASSEE, Fla. -- "That's the biggest bunch of crap I ever heard in my life!" yells a shaggy supporter of Gov. George W. Bush, huddled in the cold, summing up the emotions of Republicans everywhere upon hearing Tuesday night's Florida Supreme Court ruling. The highest court in the Sunshine State offered a victory -- at least for now -- for Vice President Al Gore, extending the deadline for counties to recount votes, or tally unread, unrecorded votes that appear to be Gore's last hope.

Instead of the Nov. 12 deadline for the recounts, fanatically adhered to by Secretary of State Katherine Harris, counties now have until Sunday at 5 p.m. EST -- or Monday at 9 a.m. EST if Harris' office isn't open Sunday.

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What's your name? I ask the loud, depressed man.

"Joe Corbin," he says. "But it might as well be mud."

No doubt others in the Bush camp feel the same way, even though the court ruled exactly the way that experts predicted it would.

"Twenty-five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases," Chief Justice Charles Wells wrote in the unanimous opinion. "We consistently have adhered to the principle that the will of the people is the paramount consideration."

The ruling wasn't a total win for the Gore team, however, begging off as it did on opportunities to set a statewide standard on which chads are deemed acceptable to connote voter intent. "We declined to rule more expansively, for to do so would result in this Court substantially rewriting" election code, the court wrote, lobbing the ball into the Legislature's court. But the court did offer a strong push in the direction of permissiveness, citing an Illinois Supreme Court decision that ruled:

"The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect."

In Illinois, pregnant and dimpled chads are both counted.

And as if that weren't enough, the court went so far as to offer specific deft slams to claims made by many in la famille Bush, ruling against:

Harris' interpretation that hand recounts can only be acceptable when there is "error in the vote tabulation," which she deemed meant "error in the vote tabulation" system. She said that such a standard "only means a counting error resulting from incorrect election parameters or an error in the vote tabulating software," the court wrote. "We disagree."

Former U.S. Secretary of State James Baker's -- and indeed, the entire Bush camp's -- assertion that machine recounts are preferable to hand recounts, since the latter is subject to "mischief" and "subjectivity." "Although error cannot be completely eliminated in any tabulation of the ballots," the court wrote, "our society has not yet gone so far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors of machines. For this very reason Florida law provides a human check."

Harris' choice of the Florida statute that used the word "shall" when it came to her discretion to reject any recounts, instead of a conflicting statute that said that she "may" reject them. For one, the "may" language is in a more recently drafted statute, which gets preference. Additionally, other "mays" in another statute led the court to lean the "may" way. Ironically, the very overseas absentee ballots that have inflated Bush's lead to (as of 10:45 p.m. EST Tuesday) 930 votes helped Gore in this ruling. "In light of the fact that overseas ballots cannot be counted until after the seven-day deadline has expired," the court ruled that "the permissive language" should rule the dispute.

Most important, however, was the court's adherence to the first line in the state Constitution. "All political power is inherent in the people." Harris could ignore this only under two circumstances: if rejecting the recount would have prevented a candidate, party or voter from contesting an election certification, or if somehow it prevented "Florida voters from participating fully in the federal electoral process."

"But to allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory" counties who didn't get their returns in on time "misses the constitutional mark," the court concluded.

Gore, of course, still will have to fend off other litigation from Bush and his lawyers challenging this ruling, as well as challenges to the liberal chad rules he wants, and God knows what else. Plus, of course, he still has the little matter of earning more votes than Bush has. But in a state with a governor named Bush, a secretary of state who might as well be named Bush, a Republican House and Senate, as well as a daunting number of Democratic voters who can't figure out a butterfly ballot, Gore finally caught a break in Tallahassee.

He can thank the state Supreme Court, all of the members of which were appointed by Democratic governors. And he should be setting up a shrine to the late Lawton Chiles.

Next page | Quit bashing Katherine Harris, OK?
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