Which is why the Gore camp's best legal argument may be not that Harris abused her discretion, but instead that she had no discretion at all about whether to count the hand-recounted votes. Florida law imposes an obligation on the counties to act when a sample manual recount indicates an error in vote tabulation that could affect the outcome of the election. And among the options given to counties is manually recounting all the ballots. In a county such as Miami-Dade, where 653,963 punch-card ballots were cast, it may not be possible to set up the procedures, recruit the staff and the Republican and Democratic observers, and then complete the painstaking and delicate work of a hand recount within seven days. Harris has no discretion, the Democrats say, to do her job in a way that prevents the counties from fulfilling an obligation imposed on them by law.
For its part, the Bush campaign has been arguing for days that hand recounts are inherently unreliable and subject to manipulation. And last Saturday it made that case in graphic terms, offering examples of misplaced and mishandled ballots in several counties.
But for all of the Bush campaign's attacks on hand counting, the fact is that it has a well-established place in election law. Florida law expressly provides for hand recounts. And courts that have reviewed elections decided by hand recounts - from Alaska to Indiana to South Dakota - have overwhelmingly supported them. If the Florida Supreme Court is concerned about the way in which hand counting is occurring, it could take steps to oversee it more directly, either by setting out its own counting standards or by appointing a special master to supervise the process.
Which is one reason why when Republicans went to federal court last week, they led with a more subtle claim. A problem with the Florida hand recounts, they said, was that by conducting them in some counties and not others, the state was depriving voters in counties that were not being recounted of equal protection of the law. It was an odd claim - the GOP doesn't usually ask the federal courts to intrude in state elections - and an unconvincing one. As the 11th Circuit Court of Appeals noted in rejecting it, Article II, Section 1 of the Constitution expressly provides that each state may select its presidential electors "in such manner as the Legislature thereof may direct." That's another way of saying that the states call the shots in presidential elections.
The Katherine Harris lawsuit is setting the agenda right now, but there are some other potentially important lawsuits pending in state court. The morning after the election, Democratic outrage was focused on Palm Beach County and its controversial "butterfly ballot." Palm Beach voters have filed more than a dozen lawsuits challenging the ballot's legality. The plaintiffs and Democratic volunteers have collected thousands of affidavits from voters who say they were confused into miscasting their votes, and they have collected statistical evidence arguing that when thousands of ballots were discarded, rejected or mistakenly cast for Buchanan, Gore lost some 11,675 votes.
It could be a compelling case, particularly if plaintiffs can prove that the ballot actually violates state law. The argument that a Democratic official prepared the ballot should be irrelevant: the right to a legal ballot belongs to the voters, not a political party. The biggest problem with the suit is that there is no easy remedy. Recounts are routine. Ordering a new election, even in a single county, is a more radical step that no court has ever taken in a presidential election. A new election would mean deciding who could vote - all voters, or just those who turned out on Election Day. It would also raise thorny issues such as how to prevent those who voted for Nader from switching now. And perhaps most unsettling, it would start up the presidential race again - complete with candidates campaigning and a blizzard of television commercials.
Every day, it seems, there are more lawsuits presenting intriguing new facts. In Seminole County, Democrats have filed a lawsuit claiming that Republicans illegally completed portions of some voters' absentee-ballot applications; some 4,700 votes are at stake. And the NAACP held hearings in Miami Nov. 11 in which black voters gave disturbing testimony about being intimidated from voting in a variety of ways - from being required to provide IDs that were not required of white voters to being denied legally required translators. The Justice Department is investigating the claims. Republicans, meanwhile, are charging Democrats with targeting more than 1,000 overseas ballots, the bulk of them from military voters, which were thrown out on Friday, many for either lack of a postmark or the voter's own signature. More than two thirds of the absentee ballots were rejected in Miami-Dade County, for example, many of them because they had late postmarks or no postmarks.
The most important actor right now in the Florida legal drama is the Florida Supreme Court. It is the final arbiter of Florida election law. And it has the power to impose almost any kind of remedy it wants, from ordering recounts and revotes to interpreting individual ballots that are in dispute. This could be good news for the Gore campaign. Six of seven Florida Supreme Court justices are Democrats; the other is an independent. Leander J. Shaw Jr., the senior member of the court, is a former public defender; and several others were trial lawyers, a traditionally liberal sector of the bar. Recently, the Justices have had tense relations with Governor Jeb Bush and Florida Republicans. In April the court rejected rules he backed to speed up death-penalty appeals. Bush responded by charging the court with engaging in "unnecessary delay and legal gamesmanship" in capital cases.
The Florida election quagmire could end up before the U.S. Supreme Court, although that is not likely. The high court doesn't usually accept cases in which state courts are interpreting state law. And that should be especially true of the current court, which has been aggressive about extending state authority in the federal system. But, in the end, both sides will have the right to at least present their case to the Supreme Court. And that fact should ensure that, no matter how acrimonious things become in Florida, the ultimate result is one that both sides - and, more crucially, the American people - accept as legitimate. "What's most important is the most obvious," says Boies. "A peaceful transfer of power in the largest, most stable democracy the world has ever known."
- With reporting by Cathy Booth and Amanda Ripley/Tallahassee, Viveca Novak/Washington and Timothy Roche/Palm Beach