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Gore Faces Uphill Battle in Courts, Analysts Say

Monday, 27 November 2000 12:00 AM

"It's certainly an uphill battle,'' said Robert Jarvis, constitutional law professor at Nova Southeastern University in Davie, Fla. However, he added, "I think the Gore people have a better than average chance.''

Florida Secretary of State Katherine Harris's refusal Sunday evening to accept a partial hand count from Palm Beach County will likely bolster the Democrats' position that legally cast ballots aren't being counted and so the election is flawed.

Democratic lawyers plan to go to Tallahassee Monday to file suit in Leon County Circuit Court, arguing that improprieties in the hand recounts gave the election to the wrong man, Republican George W. Bush.

One of Gore's lead attorneys, David Boies, said the Democrats will challenge the hand tally in three counties: Miami-Dade, Palm Beach and Nassau. Because it is a multi-county case, Florida law requires the challengers to go to state court in Tallahassee. If the challenge had involved only one county, lawyers would have had to file suit there, state law says.

The Florida law governing contested elections says an election may be overturned for obvious shenanigans such as vote fraud or corruption. It also provides an open-ended "catch-all'' section whereby a losing candidate simply has to prove he should have won. That's the area upon which the Democrats will base their challenge, experts say.

"They'll have a more broad-based attack and look at all three counties,'' said John Hill, a law professor at St. Thomas University in Miami. "They're obviously going to contest it claiming there should have been a counting of the undervote, the dimpled ballots.''

In Miami-Dade, Gore's lawyers will claim the canvassing board was intimidated into halting the hand count by a near riot of angry Republicans. In Palm Beach, lawyers will argue that in rejecting the partial count, Harris is excluding legitimate ballots that could have changed the election's outcome. In Nassau County, a reconstituted canvassing board improperly awarded 52 previously rejected overseas ballots to Bush, the attorneys will claim.

The Democrats aren't expected to contest the vote from Broward County, where the hand tally went relatively smoothly and picked up a healthy 567 votes for Gore.

The main focus of the Democrats' three-pronged attack will be Miami-Dade County, where the canvassing board let 10,700 votes go uncounted.

"This was something that could have changed the outcome,'' said David Ryden, an attorney and associate professor of political science at Hope College in Holland, Mich. "That's the logical focus for them in terms of contesting: It isn't accurate, it isn't complete, it isn't final and it isn't fair. They were forced to forgo the recount process.''

Ryden said the Democrats will likely seek the simplest remedy: continuing the hand recount in Miami-Dade.

GOP attorneys are expected to counter that the uncounted ballots in the disputed counties were properly rejected by machine, are simply not valid and have no bearing on the election.

"They're going to say they are not legally cast votes,'' said Johnny Burris, another Nova Southeastern University Law professor.

The Democrats, Hill said, could then mount an argument that they need the completed hand recount in Miami-Dade as evidence to prove their case in court: that the ballots left uncounted were legitimate and would have gone to Gore.

In the strictest legal sense, the Tallahassee circuit judge who gets the case must determine whether Miami-Dade's canvassing board abused its authority by halting the hand count.

"Ultimately, what the court has to decide is whether it was within the sole discretion of the canvassing board to stop the recount after they had already started,'' Hill said.

Jarvis predicts the Democrats won't present any evidence or witness testimony before the court, but rather ask that it take "judicial notice'' or use its own common knowledge of the situation, to assist in reaching a decision.

Jarvis also strongly believes the judge will quickly reject the Democrats' lawsuit and send it straight to the 1st District Court of Appeal, also in Tallahassee. That court, in turn, will boot the case immediately to the state Supreme Court, he said.

"I would expect that by the end of this week, this case would be before the Florida Supreme Court,'' he said.

Jarvis said the Democrats' arguments are buttressed by the confusion over whether to count dimpled ballot marks in Palm Beach and the mob scene that preceded the Miami-Dade decision to stop the count.

"If Palm Beach and Miami-Dade had done what Broward did, then I think [the Democrats] would be in tough shape,'' he said.

The higher courts may order the hand count to continue, Jarvis said, simply to maintain the status quo while they ponder their rulings. "Courts are very sensitive to maintaining the status quo,'' he said.

But divining how a court will rule, especially in this wild and woolly election, has the legal experts shaking their heads.

"I've stopped guessing,'' Burris said.

"We're on the cutting edge here,'' Hill said. "Nobody's ever looked at this stuff before.''

(C) 2000 South Florida Sun-Sentinel.

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It's certainly an uphill battle,'' said Robert Jarvis, constitutional law professor at Nova Southeastern University in Davie, Fla. However, he added, I think the Gore people have a better than average chance.'' Florida Secretary of State Katherine Harris's refusal Sunday...
Monday, 27 November 2000 12:00 AM
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