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Florida Supreme Court Hostile Territory for GOP

Wednesday, 15 November 2000 12:00 AM

Past relations between Jeb Bush’s administration and the state’s highest court have been less cordial than the relations between the feuding Hatfields and McCoys.

For the past year and a half, Bush and the GOP-controlled legislature have been battling the Democrat-dominated State Supreme Court.

Now the Bush forces – Jeb’s and George’s – face a new battle over ballots and the rights of four counties to recount them. At the very least they desperately need a neutral forum where they can plead their case.

One of the cases involves two Florida counties – Volusia and Broward – that are asking the court to review and overturn a Tallahassee judge's order allowing Secretary of State Katherine Harris to enforce a 5 p.m. Tuesday deadline for counties to report their vote counts.

In the second matter, Palm Beach and Volusia officials want the court to clarify conflicting legal opinions issued by Clay Roberts, the Republican director of the state division of elections, who told Palm Beach County that it did not have any legal right to conduct hand recounts, and Democrat state Attorney General Bob Butterworth, who says that the counties have a right to do so.

Moreover, the court is expected to have to deal with a series of lawsuits filed in lower courts that deal with the so-called butterfly ballot, used in Palm Beach County, that a Democrat elections supervisor had approved and that allegedly confused some voters.

The history of hostility between Gov. Jeb Bush and the seven state Supreme Court justices, appointed by previous Democrat governors, has Republicans wringing their hands over what kind of greeting they’ll get.

In June, for example, Jeb Bush charged that the court hurt crime victims by contributing to "unnecessary delay and legal gamesmanship" in handling death penalty cases. Two months ago, Bush reacted to a court ruling by charging that the court did not respect the voters’ will.

Feelings ran so high on both sides that last spring GOP state legislators attempted to change the makeup of the court by naming two new members and stripping the court of some its powers. They failed, but the rancor persists.

"Judges are theoretically above being influenced by emotions, but the odds are that some can have twangs of anger like the rest of us," GOP state committeeman Tom Slade told the Washington Post.

Slade said he was hopeful that the justices would let bygones be bygones.

"Generally speaking, I think the justices are too distinguished a group of people to let a personal vendetta influence their decision, but if someone in the Republican Party has made them mad, I suspect they wish at this time that they hadn't."

Others also expressed hope that the court will stick to legal reasoning. Several former state Supreme Court justices and other legal analysts in Florida told the Post that the court would not be influenced by politics.

"I don't think that the fact that Bush and the Republican legislature have been constantly bashing the Supreme Court is going to play any role in their decision making," said former justice Gerald Kogan, who was appointed by Republican Gov. Bob Martinez.

And former justice Ben Overton said that the court "will just have to fasten their seat belt, and I know they will rule based on the law."

Unfortunately, the law as interpreted by the court in recent rulings gives scant reason to believe they’ll rule in the GOP’s favor now. The court’s recent case law on election disputes indicates they may throw out Harris’ deadline.

According to the Post, in 1998 four justices joined in the court’s unanimous opinion in Beckstrom vs. Volusia County, which involved a dispute over the counting of absentee ballots in a nonpartisan sheriff’s election between two Republican candidates.

In that case the justices were bent on making sure that all voters are heard, and implied that an election can be valid even if election officials were merely in "substantial compliance" with voting laws instead of being in "strict compliance."

"The real parties in interest here, not in the legal sense but in realistic terms, are the voters," the court ruled.

"By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of a sacred, unyielding adherence to statutory scripture, we would in effect nullify" the right to vote.

Should the court rule that manual recounts will give a clearer picture of the voters' true intentions in the disputed counties, and if it sees Harris' enforcement of the deadline as a form of "unyielding adherence to statutory scripture" that would prevent the manual recounts, then it might well decide against her, legal analysts told the Post.

"I think the Supreme Court will say count all of them and don't worry about a few being late," said Donald W. Weidner, a Jacksonville attorney and self-described Bush supporter who argued the 1998 case on behalf of defeated sheriff candidate Gus Beckstrom.

Yet in confronting the cases arising out of the election, the justices have to know they could pay a price if their ruling is seen as partisan politics and not solid jurisprudence. As the Post reported, the court has already been punished for some of its more controversial rulings this year.

After the justices struck down Gov. Jeb Bush's plan to speed up executions by limiting death penalty appeals this year, Bush and other Republican lawmakers took them on in the court of public opinion. Then the legislature refused the state Supreme Court's budget request to fund 43 new lower-court judges.

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Past relations between Jeb Bush's administration and the state's highest court have been less cordial than the relations between the feuding Hatfields and McCoys. For the past year and a half, Bush and the GOP-controlled legislature have been battling the...
Wednesday, 15 November 2000 12:00 AM
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