The End Of The Beginning?

000606 Early Show Andrew Cohen
You could tell from the Republican rhetoric that a legal sea change had occurred the moment the Florida Supreme Court decided to allow manual recounted vote totals to be included in the final tally of the state's electorate. In an instant on Tuesday night, the legal status quo went from favoring George W. Bush to favoring, if only temporarily, Al Gore.

Now it's the Democrats who will want to lay low and wait for the results from those hand-counts to go forward. And now it's the Republicans who have to figure out which legal avenues to travel down next. Now it's Gore who clearly has Florida law on his side. And now it's Bush who will be fighting an uphill battle in court somewhere - state or federal, it's not yet clear - trying to change the way this post-election fight is going. Now it is the counties - which asked the court for help - which are under the gun. And now it is Florida GOP Secretary of State Katherine Harris, so heavily criticized by the justices in their opinion, who is off the hook decision-wise.

The court's decision was consistent with most of the positions taken by the justices during the lawyers' oral arguments the day before. The justices clearly weren't comfortable with what they called the "hyper-technical" deadline imposed by Harris when she decided last week not to include any hand recounted ballots submitted to her after November 14. The court decided to ignore that deadline, because the justices felt that Florida's constitution required them to construe the state's statutes in a manner which would permit more, rather than fewer, votes to be counted.

It probably helped the court - and certainly hurt the Republicans - that those statutes were an absolute disaster and invited, even demanded, significant and detailed judicial interpretation. One provision called for Harris to certify. Another said she had the discretion to do so. One provision permitted counties to conduct manual recounts. Another helped ensure that those recounts could not be completed in time to have a meaningful impact upon the race. Different provisions, moreover, were enacted at different times and for different reasons. When you add it all up, you get bad law - and because the election law here in Florida is so bad, the court was forced to add its two cents' worth.

That's why I don't particularly agree with what former U.S. Secretary of State James Baker - Bush's point man in Florida - said when he labeled the decision a re-invention of the law. The losing side always criticizes the judge for overreaching. It's as predictable as a post-verdict press conference. But it's one thing when judges nullify comprehensive and well-conceived statutory schemes. It's another thing when a state's highest court clarifies a morass of statutory gobbledy-gook.

And I don't agree with either Baker or the Democratic lawyer David Boies that the Florida decision confirmed in any way what the Court's position is - one way or the other on statewide standards for determining when a vote is a vote. The only mention of anything close to such a standard from the court came in a citation of an Illinois case which was cited by the Florida justices for the simple broad proposition that "an accurate vote count is one of the essential foundations of our democracy." The court neither restricted nor broadened the vote-count standard - it simply allowed the counties to continue to use their discretion as they go forward.

And that could be good news or bad news for either party. The counties have to walk a very fine legal line. The broader the standard in determining what ballots count as votes, and the more often those standards change from day to day, the stronger becomes the Republican argument that the whole process is so subjective and flawed that it is actually unconstitutional. It will be fascinating to see what those local folks do now that the pressure squarely is on them.

Meanwhile, as the Bush campaign begins to look around for legal options as to where it goes next, it would be well-advised to look beyond the issues decided by the court. Of course, the Republicans could try to appeal the Florida ruling to the United States Supreme Court but that court would almost certainly refuse to get involved. And the Bush team also could to challenge the decision in a lower federal court. But that court, too, would almost certainly see this ruling and its genesis as a matter for state law and state courts. On the matter of hand recounts and their inclusion into the final tally, then, and on the matter of the Florida Secretary of State's role in all of this, it is reasonable to say that the court of last resort has spoken.

Instead, I suspect, if Gore actually takes the lead due to the manual recounts, the Republicans will divert their attention to post-certification challenges which have almost nothing to do with what the Florida high court decided. They are likely to renew their legal arguments - either in state or federal court - that the way the local counties are determining votes is unconstitutionally ambiguous and subjective and broad. They also likely will challenge in some fashion the decision to reject all those oversees absentee ballots. And there is a good chance that the same court which punched them in the stomach will be called upon again to resolve those issues on appeal.

Which means that the Florida Supreme Court may not be through in helping determine whom the 43rd President may be. Political considerations aside, in fact, this may only be the end of the beginning.

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