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Oral Arguments in Brevard County Suit Postponed

Tuesday, 28 November 2000 12:00 AM

Oral arguments in the suit were originally scheduled for today.

In a brief filed Monday in Touchston vs. McDermott, the voters alleged that Florida's Manual Recount Statute creates an "unconstitutional two-tiered system for counting votes depending on where the voter lives."

The voters who filed the lawsuit are Robert C. Touchston, Diana L. Touchston and Deborah Shepperd. The defendants in the case are specific members of the county canvassing boards of Volusia, Palm Beach, Broward and Miami-Dade counties, Secretary of State Katherine Harris, members of the Elections Canvassing Commission and the Florida Democratic Party.

Although a Florida statute awards all of the state's 25 electoral votes to the candidate with the majority of the popular vote, the voters pointed out in their brief that any candidate whose name appears on the ballot or any political party whose candidate's name appears on the ballot may file a written request with any county canvassing board for a manual recount, according to the state's Manual Recount Statute.

Thus, the voters argued that "although a candidate must win a majority of votes statewide to win Florida's Electors, the candidate may request a manual recount of ballots only in those counties where the candidate stands to gain a partisan political advantage. While this procedure may be lawful according to Florida statutes, it denies equal protection of the laws to voters in counties outside of those where the manual recounts are requested and conducted, and is, thus, contrary to the guarantees of the Fourteenth Amendment."

Brevard County is one of the 63 counties in Florida that haven't participated in any recounts of ballots, except for the initial machine recount required for all counties under Florida law.

According to the voters' brief, Florida Attorney General Bob Butterworth warned the state about this system, saying: "A two-tiered system would have the effect of treating voters differently, depending upon what county they voted in. A voter in a county where a manual recount was conducted would benefit from having a better chance of having his or her vote actually counted than a voter in a county where a hand count was halted.

"As the State's chief legal officer, I feel a duty to warn that if the final certified total for balloting in the State of Florida includes figures generated from this two-tiered system ... the State will incur a legal jeopardy ... [that] could potentially lead to Florida having all of its votes, in effect, disqualified and this state being barred from the Electoral College's selection of a President."

Even though Butterworth warned of a potential violation of state and U.S. constitutions, the Florida Democratic Party, in its brief filed on Tuesday, said the voters "lack standing" to complain about other valid votes being counted through Florida's recount procedures because the plaintiffs' votes have already been counted. The party also argued the voters' appeal was moot because the recounts and certification of the state's votes have already occurred.

Furthermore, the Democrats said Florida's Manual Recount Statute was "entirely non-discriminatory, and can be invoked at the request of any candidate or party and pursued where a county board determines that there has been an error in tabulation that could affect the outcome of the election."

The voters disagree and argue that Florida's procedures for manual recounts "lack sufficient standards and fail to protect voters' due process rights, further diluting voters' votes." In particular, the voters argue, the statute fails to provide any standards for determining "voter intent" during a manual recount.

The Florida Democrats, in response to allegations that votes are being "diluted," said there was no danger of this happening, and rather, the voters were seeking to invalidate Florida statutory procedures, as interpreted by the state's highest court, which have the intent and effect of counting as many valid votes as possible.

However, the voters are not arguing in their brief that manual recounts are always invalid or that it is always improper to seek voter intent by hand recounts.

"The heart of the problem here is that the statutory process for determining what counties are manually recounted is fundamentally unfair and leads to a partisan result," says the voters' brief. "Other states have adopted manual recount procedures that are fair and balanced.

"Furthermore, states have adopted statutory standards for determining voter intent during visual examination of the ballot. The failure of the State of Florida to do like-wise is its fatal flaw."

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Oral arguments in the suit were originally scheduled for today. In a brief filed Monday in Touchston vs. McDermott, the voters alleged that Florida's Manual Recount Statute creates an unconstitutional two-tiered system for counting votes depending on where the voter...
Tuesday, 28 November 2000 12:00 AM
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