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Territory Is Uncharted for Court Action

By Charles Lane

Washington Post Staff Writer

Friday , November 10, 2000 ; Page A01

No presidential election in U.S. history has ever been decided by federal or state court action, so if they choose to go to court to reverse the apparent result of Florida's election, Vice President Gore and his supporters would be venturing into uncharted legal and political territory.

Nevertheless, in the matter of Palm Beach County's controversial ballots, state law does appear to provide Florida's judges with relatively clear guidelines.

Florida law offers aggrieved candidates and voters broad opportunities to challenge the results of elections. The relevant state Supreme Court case, a 1998 opinion in a disputed county sheriff race, says election results can be thrown out, even without evidence of fraud or intentional misconduct by election officials, if there is "reasonable doubt" about whether the officially certified results "expressed the will of the voters."

The court left open, however, the issue that is critical in this situation--what remedy courts should impose in such cases.

The coming court battles thus hinge on whether Florida's courts will conclude that the two-sided "butterfly" ballot used in Palm Beach County--but nowhere else in the state--was illegal under Florida law and that the apparent confusion of some who used it thwarted the voters' intentions.

Attorneys for the Gore campaign and for Gore voters in Palm Beach County have already claimed that the situation there fits this standard almost to a "T."

They do not allege that the Democratic election supervisor who designed the disputed ballot, Theresa LePore, intended to harm voters. Indeed, she thought she was making the ballot more readable for elderly voters by adopting a format with larger type.

Rather, the lawyers claim, her attempt to be helpful resulted in ballots that did not conform with Florida's precise specifications.

For example, under Florida law, voters are supposed to be able to make a mark in a box immediately to the right of a candidate's name, but some of the punch holes on the Palm Beach ballots were placed to the left.

The law also calls for the Democratic ticket to be listed right after the Republican ticket. On Palm Beach's butterfly ballot, the names of Al Gore and Joseph I. Lieberman appeared directly beneath those of George W. Bush and Richard B. Cheney, but the Gore-Lieberman punch hole was third in line, below the one corresponding to Reform Party nominees Patrick J. Buchanan and Ezola Foster.

Because of these illegalities, the argument goes, the ballots were so confusing that more than 20,000 voters either accidentally voted for the wrong candidate or marked two candidates, thus disenfranchising these voters.

"There was no animus," said attorney Mark Cullen, who filed one of two lawsuits pending before the Palm Beach County Circuit Court on behalf of aggrieved Gore voters. "It was just a boneheaded move that resulted in people being denied their right to vote."

However, the case is far from an automatic win for the plaintiffs. Republicans note that sample copies of the ballot were widely circulated before the election and that no one, including officials of both parties, objected then. It could also be argued that, even though the Buchanan-Foster punch hole came second on the ballot, the names of Gore and Lieberman did, indeed, come right after the names of Bush and Cheney, and that the relevant section of the statute refers to the positions only of the names.

The vast majority of voters in the county managed to figure out the ballots and vote for the candidates of their choice, raising a question as to whether the ballots may not have been so inherently confusing as to be invalid under state law.

Another Florida precedent, a 1974 case from Pinellas County decided by one of the state's intermediate appellate courts, held that "mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out."

The voters' own professed confusion could be turned against them. "When did they decide that they made a mistake?" asked Republican election law attorney Cleta Mitchell. "Can they testify under oath that they knew for certain they made that mistake?"

Federal law generally leaves the administration of elections for federal office up to the states, so the matter is likely to be settled in Florida's courts, with no ultimate appeal to the U.S. Supreme Court. A scheduled emergency hearing in federal district court was abruptly called off yesterday when attorneys for some Palm Beach voters withdrew their claim.

"It does not involve a federal question," said attorney Gregg Thomas, who handled an election dispute for Republican Sen. Connie Mack in 1988 but is now advising the Gore campaign. "This is an interpretation of Florida law and Florida facts."

An exception might arise, however, if Democrats could gather enough evidence of racial discrimination or other violations of constitutional rights, either in Palm Beach County or elsewhere in the state. Jesse L. Jackson has been making such claims in Florida appearances since the election.

But Gore attorneys privately concede that, although they are looking for it, they have not yet gathered enough evidence of such abuses to warrant a federal case.

Florida's courts are themselves hardly insulated from political pressure.

Judges at every level, including the state Supreme Court, are appointed by the governor upon the recommendation of a commission of legal experts. All seven justices of the current high court were appointed by Democratic governors.

However, all judges, including the members of the Supreme Court, are subject to periodic elections in which voters can decide whether to retain them, so the judges who take up the issue of the Palm Beach ballots would do so knowing that someday the voters will have a chance to render their own verdict on whatever decision is made.

Should the aggrieved would-be Gore voters prevail in court, the question of what remedy to grant them would remain. On this issue, there is little precedent to guide the Florida courts.

In the 1998 county sheriff case, the court ended up affirming the result of the disputed election, so it did not have to consider a remedy. An appellate court settled a 1998 Miami vote fraud case by throwing out the disputed votes, awarding the race to the candidate who had lost because of them.

But such a solution wouldn't apply in Palm Beach County, where voters are asking to have their votes reinstated.

Complicating the issue further is that the alleged ballot confusion resulted in different kinds of mistakes by different voters.

Some marked their ballots for Buchanan-Foster only, resulting in votes that were valid but which the voters disavow. Some marked their ballots for both Gore-Lieberman and Buchanan-Foster, resulting in invalidated ballots. And still others apparently submitted ballots in which the Gore-Lieberman hole was simply pushed part of the way through, resulting in a ballot that could not be counted by a machine but might be intelligible in a manual recount, which the Gore campaign has requested.

Kendall Coffey, a Miami attorney working for the Gore campaign, said one possible remedy is a "new election in Palm Beach County."

But that leaves the question of who would participate in such a rerun. In the two lawsuits now pending in state court, one set of plaintiffs is asking the court to order a new election open to all registered voters in the jurisdiction. The other set of plaintiffs, however, wants a new election in which the people who voted on Nov. 7 would be allowed to vote again.

However strong the merits of their case may be, the Gore forces are up against a potentially difficult timetable. Whereas the country could afford to let the Volusia County sheriff's election be litigated for three years, federal law requires that the Electoral College cast its votes by Dec. 18, that they be counted in Congress on Jan. 6 and that a new president be sworn in by Jan. 20.

The Florida courts would likely give the matter accelerated review, but they may be barred from starting immediately because state law only speaks of challenges to "certified" election results. With the mandatory recount still incomplete, the Florida secretary of state has not yet certified a final result.

That could happen as soon as Nov. 17, when the last overseas absentee ballots are due to be counted. But it could also happen later if a manual recount drags on and gives rise to new disputes.

B) 2000 The Washington Post

-- Story in (the@Washington.Post), November 10, 2000

Answers

http://www.washingtonpost.com/wp-dyn/articles/A56995-2000Nov9.html

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Judge's Injunction Would Put Fla. Outcome on Hold

By Christina Pino-Marina

washingtonpost.com Staff Writer

Thursday, November 9, 2000; 9:57 PM

WEST PALM BEACH, Florida -- The outcome of the nationBs disputed presidential election was put on hold late Thursday by a Circuit Court judge in West Palm Beach who granted a temporary preliminary injunction in favor of two women who allege they voted incorrectly because of confusing ballots.

Judge Kathleen Kroll, a judge in the 15th Judicial Circuit in Palm Beach County, granted the injunction around 9 p.m. on a motion filed by lawyers representing Beverly Rogers and Ray Kaplan, two women from Boca Raton.

KrollBs injunction prevents state and county officials from certifying as final the result of the presidential election. The judgeBs decision was based upon violations of Florida state laws concerning the format of election ballots, the injunction said, and it said the ballot was confusing and Bprinted in such a way that Plaintiffs were deprived of their right to freely express their will.B

BThis is not just about one county,B said lawyer David H. Krathen, who represents Kaplan. BIt is about a national election for the president of the United States.B

Hundreds of people protested in the streets of West Palm Beach Thursday because some area voters said they might have mistakenly cast votes for Reform Party Candidate Patrick J. Buchanan instead of Democratic candidate Vice President Al Gore, who was just a few hundred votes behind Texas Gov. George W. Bush after statewide vote recount efforts.

A Florida elections canvassing commission in charge of recounting votes cast in the county on Nov. 7 expected the crucial count to be completed by next Tuesday and some ballots would be recounted by hand.

In Thursday's legal proceedings, Kaplan teamed up with lawyer Gary M. Farmer, Jr., who represented Rogers, his 55-year-old mother-in-law. The two women were not present in the courthouse.

BWe filed an emergency motion because we wanted a ruling today, before the commissions certified any of the elections,B said Farmer. BI believe they (the clients) have a well-founded fear that they did vote for the wrong person.B

Others had filed class action lawsuits in the circuit court on Wednesday and Thursday demanding a county-wide re-vote, but Krathen and Farmer said they do not know details of those lawsuits.

The defendants in the injunction included the Elections Canvassing Commission of the State of Florida; Florida Governor Jeb Bush, the brother of George W. Bush; Secretary of State Katherine Harris; Clay Roberts, Director of the Division of Elections for the State of Florida; Theresa LaPore, Supervisor of Elections for Palm Beach County; the Palm Beach County Elections Canvassing Commission; Al Gore; and George W. Bush.

Krathen said the motion for a preliminary injunction was faxed to all the parties involved. ThursdayBs injunction calls for an additional hearing next Tuesday at 1 p.m.

The ballots used in Palm Beach County appear to have violated at least two state statutes, Farmer said.

State law requires that ballots display candidatesB names on the left hand side with spaces for selection marks appearing adjacent to the right of the candidateBs name. The ballots in question featured blank spaces adjacent to both the Democratic and Reform party candidates for president and vice president. Though arrows pointed to the correct spaces for each candidate, some voters said the ballot seemed misaligned.

The namesB order of appearance should also be based on the number of votes each partyBs candidate received in the previous gubernatorial election, Farmer said. The names on the Nov. 7 ballots were out of order, Farmer said, because Buchanan was listed second behind Bush on the ballot even though the Reform party received less votes than the Democratic party in the last gubernatorial election.

"Our clients intended to vote for Al Gore," said Farmer, who had paced the tiled floors of the courthouse for six hours before the injunction came. "They are upset about that. There sense of being upset has been magnified by the closeness of this election and the fact that the entire country is waiting for the results from Florida."

B) 2000 The Washington Post Company

-- Story in (the@Washington.Post), November 10, 2000.

Oh, yeah, and just to muddy up the waters a little more:

Florida sent duplicate ballots overseas -- Salon

Florida sent duplicate ballots overseas

Defense Department employee alleges that some co-workers on an air base in England voted twice.

By Carina Chocano

Nov. 9, 2000 | At least five Florida residents serving at a U.S. Air Force base in England received two absentee ballots for this year's hotly contested presidential race, a civilian Department of Defense employee told Salon.

Elaine Gatley, 48, a civil service executive secretary stationed at RAF Mildenhall in southeastern England, said Thursday that she and four fellow Floridians who work in her office received two ballots in the mail from the state of Florida. . . .

(What HAVE the elections people been smoking down there?)

-- I'm Here, I'm There (I'm Everywhere@so.beware), November 10, 2000.

I don't think it should matter that duplicate ballots were sent out. Once one ballot for an absentee voter is counted, the other would be disqualified. If they're doing their job and checking off each voters name, of course.

-- (hmm@hmm.hmm), November 10, 2000.