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G-Dubya Bush losing Florida re-count battle

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Updated Celebrity legal-beagle David Boies, now famous for his antitrust work on behalf of Uncle Sam against Microsoft and his defence of Napster from heavy-handed onslaughts by the recording industry, has joined the swelling ranks of lawyers flooding into Florida to lend support (well, sell support), to the Gore campaign's efforts to get a thorough re-count of ballots in districts where the Veep did well.

Florida Judge Terry Lewis yesterday confirmed that Republican Secretary of State Katherine Harris could enforce Tuesday evening's statutory deadline for all counties to certify their election returns, but also stated that Harris may not arbitrarily reject updated returns filed after that time.

Boies seized on that detail, and interpreted it to mean that Harris is obligated to accept all late returns unless she can show cause why they should be ignored.

"The court said that [Harris has] got to look at 'when was the request made; why was the request made; and did the canvassing board approach it in a sensible way.' All these kinds of things favour doing the re-count and understanding how people voted," Boies told reporters during a press conference Tuesday evening.

"We all hope that the Secretary of State will do the right thing. Now, if [she] arbitrarily refuses to accept the returns based on the re-count, and violates what the court has ruled is her duty - which is to accept those results unless she has a good reason not to - then we may be back in court," he said amiably and confidently.

(Presumably, helping Dubya win the election and thereby securing herself a sweet, cushy spot in his administration would not quite qualify as a 'good reason' for shutting down the re-counts.)

Harris emphasises that she has discretion to refuse updated returns, and hints that she will exercise it as liberally as possible. Tuesday evening she ordered all counties which intend to file amended results to have written petitions on her desk by two o'clock p.m. Wednesday, a very risky stratagem.

This smug little power-play could blow up spectacularly in her face if she cannot avoid accepting at least some hand-count returns from counties in which Gore did well. If that should push him over the top, she will be unable to accept any tit-for-tat returns from many Bush-inclined counties, since they will not have filed this notice of intent by the Wednesday afternoon deadline.

But she appears well seduced by her own power to influence the course of things, and shows confidence that she can shut down the re-counts: "Unless I determine, in the exercise of my discretion, that the facts and circumstances contained within these written statements, justify an amendment to today's official returns, the state Election Commission... will certify state-wide results reported to this office [by Tuesday evening's deadline]," a heavily made-up and palpably exhausted Harris told reporters late Tuesday.

The Florida election statutes are quite ambiguous, as we reported in a previous story. At this point it really is anyone's guess how the courts will interpret them.

Harris has obviously not been getting much sleep during the past week. Wednesday morning she filed a petition with the Florida Supreme Court, asking that it stop the manual re-counts and declare itself the sole arbiter of all election squabbles, ostensibly to impose consistency on all the decisions.

"Most importantly," Harris wrote, "if county-wide manual re-counts continue before this court decides whether such re-counts are authorized and/or constitutional, the results will be broadcast to the nation, which will neither advance the process nor serve the interests of public policy."

In other words, Gore could look like a winner in public before she's had a chance to play all her cards on Dubya's behalf.

Unfortunately, the Florida Supremes disagreed, and late in the day shot down her motion to stop the manual re-counts, along with her motion to make theirs the sole venue of election disputes.

Meanwhile, the Bush campaign has taken the battle another notch toward the federal level, filing for an injunction in appellate court to stop all the Florida hand-counts, after a US district court failed to do so at their request late last week.

If the appeals motion fails, then the Bush team will have screwed itself royally, effectively handing to Gore a limited right to manual re-counts which they will be unable to match later if they need them. Failure here is a strong possibility, considering the traditional reluctance of federal courts to involve themselves in state elections. ®

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