Battle Rolls On ... And On ... And On

For weeks, we all thought that the certification of Florida's election would signal the beginning of the end of the legal and political dogfight over who gets the state's electors and thus the presidency.

Turns out we all were wrong.

Certification, it turns out, is just another bump along the road to the White House. An interesting, significant bump, to be sure, but not the apocalyptic, history-changing event it was forecast to be. Florida Secretary of State Katherine Harris will no more have the final word on who wins the state than you or me.

Ultimately, either the Florida Supreme Court or the U.S. Supreme Court, or both, will dictate which rules govern whether and to what extent the people's votes are counted and for whom. Those rules and rulings clearly could change the outcome here, even though Bush has been declared the "official" winner, depending upon what they are, when they are imposed, and how they are interpreted by state officials on the ground.


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CBSNews.com Legal Consultant Andrew Cohen

So providing that the political fallout (from not conceding) does not reach critical mass for the Democrats over the next few days, Al Gore is still very much in this battle. This is true even though Gore needs a double-dose of court help. Remember, he not only needs the United States Supreme Court to back the Florida Supreme Court's decision to delay the certification in the first place. He also needs a new ruling or two from judges - then upheld on appeal - who will order additional hand-counted vote totals to be included in the final tally, totals which the Democrats believe will put the vice president over the top.

Meanwhile, with a Supreme Court hearing pending on key issues in the case, and a whole slew of state-law issues looming over the next few days, it will be awfully difficult for Bush to claim the victory he thought he had locked up election morning. The Republicans can talk about the election being "over" until the cows come home but the fact is: It isn't over now and won't be until the last justices rule sometime in the next few weeks.

Almost immediately, then, the Democrats will go to court in a post-certification "contest" lawsuit and ask a Florida trial judge in Tallahassee to get involved in the vote-counting process. The legal standard applied in these sorts of "contests" gives judges significant discretion to remedy election problems. Once a "contest" begins, Florida courts no longer have to defer as much to those county canvassing boards as they did during the pre-certification "protest" period.

One such standard permits judges to take action if the action requested could or would change the outcome of the election. And Florida judges in the past have, indeed, gotten heavily involved in affecting election outcomes - either by having subordinate "special masters" or "referees" count contested votes or even by allocating votes based upon statistical information.

This sort of legal precedent is precisely what the Democrats are hoping for and counting on. The Gore campaign already has told us that they will ask a judge to get those "undercounted" votes tallied in Miami-Dade County, where election officials threw up their hands and quit counting last week after coming up with about 150 additional Gore votes which were not certified in the final figures. The Democrats also apparently will ask for judicial help counting votes in Palm Beach County and try to get additional Bush votes taken off the table in Nassau County.

Meanwhile, Harris left herself open to another challenge Sunday night when she refused to accept partial recount totals from Palm Beach County. These partial recounts could add another 200 or so Gore votes to the tally, cutting again into Bush's lead. And there are other "contest" issues the Democrats very well could throw into the mix over the next few days. If only a few of these issues are received favorably by the Florida courts, Sunday's certification may not be worth the paper upon which it was printed.

There also are several lawsuits not affiliated with the Gore campaign which also could play in a role in how this all plays out. Over in Seminole County, for example, a judge Wednesday is expected to hear argument on whether he should toss out about 4,700 Republican absentee votes cast there because of alleged irregularities in the way they were handled. A ruling against the Bush campaign in that particular case alone could change the tide of events. And remember, the U. S. Supreme Court isn't going to be addressing post-certification issues - the Justices only agreed to hear whether the Florida Supreme Court exceeded its authority when it bumped back the certification deadline.

The Gore campaign's contest issues will likely be lumped into one state court case. The judge who presides over it likely will promptly schedule a hearing in the case. That hearing likely will involve witnesses, who will testify one way or the other on the issues raised by the Democrats and objected to by the Republicans. There will be cross-examination. There will be objections. The whole thing could look like a mini-trial, depending upon how much room to roam the judge gives the parties.

Usually, such a matter would take weeks or months to resolve. But that won't happen here. I suspect the "contest" will be over by the end of the week or perhaps early next week. The reason for such speed is that all concerned know that any "contest" decision by the judge will be immediately appealed. And if the judge indeed believes that, say, smeone must count votes in Miami-Dade, that judge is going to have to ensure that there is enough time for that to occur, and have all appeals exhausted, before the current deadline of December 12. This means that we all may be back before the Florida Supreme Court, and maybe the U. S. Supreme Court, on these post-certification issues regardless of what the High Court rules later this week.

So we are in for another week of furious legal maneuvering leading up to oral arguments before the Supreme Court on Friday. The landscape could clear up by then but I'm not betting on it. My pessimistic guess is that we will end the week, and the election month of November, without much more clarity than we have now.


By Andrew Cohen
©2000, CBS Worldwide Inc., All Rights Reserved
  • CBSNews.com staff CBSNews.com staff

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