There is scarcely a political question in America, Tocqueville observed, that doesn't turn sooner or later into a judicial one. Nowhere has that been truer than in Florida over the past two weeks. Going into the election, it looked like the presidency would be determined by the candidates' positions on issues such as prescription drugs and tax cuts. Now it seems likely to turn on how courts interpret obscure state election laws and arcane questions of administrative discretion.
The most striking thing about the legal battles in Florida is just how quickly the briefs are flying. By late last week, 24-hour news channels were announcing new filings and rulings at the same breathless clip they were calling states for Bush and Gore on election night. A Palm Beach County judge rules that local officials have the option of counting dimpled chads. A Broward County judge rules the same. A suit is filed challenging absentee ballots in Seminole. "I used to leave the house to pick up the newspaper," says Bush lawyer Barry Richard. "Now I leave to pick up the next complaint that's been filed."
By week's end, the legal endgame was focused on two sets of lawsuits proceeding on parallel tracks. The Bush campaign had pinned its hopes on a federal challenge to hand counts that now seems to have sputtered to a halt. And the Gore camp was relying on the Florida state courts to force a reluctant Katherine Harris, the secretary of state, to accept votes from hand recounts that it hoped might provide its margin of victory.
The Democrats' bet-the-farm lawsuit began when Harris announced that she would certify the state's vote at 5 p.m. last Tuesday, even though several counties were still counting votes by hand. Harris told the counties they were legally required to submit their vote totals within seven days of the election. Leon County circuit court judge Terry Lewis, who was assigned the case, issued an initial decision that offered something to each side. He ruled that the counties could continue their hand counts, but he also affirmed that Harris had the authority not to accept those recounted votes. And there was one more thing: Harris could not abuse her discretion in rejecting the hand-recounted votes.
After the ruling, Harris ordered the counties to submit reasons they should be allowed to revise their vote totals. Three counties - Palm Beach, Broward and Miami-Dade - responded to her in writing by her 2 p.m. Wednesday deadline. But after she reviewed their submissions, she found them unsatisfactory. Harris then declared that she would certify final election results on Saturday after the state's absentee ballots were counted.
To stop her, the Democrats tried to convince Judge Lewis that Harris's decision was an abuse of discretion. But on Friday morning he upheld Harris's decision. Then on Friday afternoon, the Florida Supreme Court put in a surprise appearance. Although neither party had yet asked it for a ruling, the court ordered Harris not to certify Florida's vote. And it set a hearing for Monday afternoon to consider the issue further.
Every twist in the Florida postelection legal journey has been met with a flurry of overreaction. Friday morning, when Judge Lewis ruled that Harris could certify the state results, the punditocracy was declaring that Gore's hopes of winning were over. By the end of the same day, after the Florida Supreme Court's ruling that she could not, talk resurfaced of a possible Gore victory. But the truth lay somewhere in between. The Gore camp will have a chance to argue before the Florida Supreme Court this week that "the votes have been cast, and they ought to be counted," in the words of David Boies, Gore's chief lawyer. "It's an easy case."
But things may not be quite that easy inside the courtroom. There is a whole legal field, administrative law, devoted to the intricate question of when a government official has abused his discretion. Courts won't overrule an administrator lightly: In general they need to find that she or he has acted out of prejudice or arbitrarily. To Harris's critics, bias seems a given, since she is co-chair of Bush's Florida campaign. But except in the most blatant cases, courts are reluctant to make such assumptions about an official's motivation.
The Florida Supreme Court might more probably hold that Harris' decision to reject the hand counts was arbitrary. After all, Harris made her decision before the votes at issue were tabulated, so she may be hard-pressed to argue that she really took into account all the relevant facts. Her critics say she acted before the votes were in for a partisan reason: because she did not want the hand recounting to continue, perhaps eroding Bush's narrow lead. But in her defense, Harris can say, as she has repeatedly, that she was just enforcing the deadline for reporting votes set out by the Florida legislature. It's not a completely frivolous point: the law can often be strict about deadlines. In 1992 Virginia executed convicted killer Roger Coleman after the Supreme Court held that his lawyers waived his constitutional claims by missing a deadline for filing legal papers by one day.
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