By David Drucker
Daily Bruin Reporter
The legal battle in Florida intensified last week as George W.
Bush and Al Gore took their quest for the presidency to the
courts.
Friday morning, Florida Circuit Court Judge Terry Lewis, a
Democrat, ruled that Republican Secretary of State Katherine Harris
acted legally in choosing not to allow four heavily democratic
counties more time to conduct hand recounts.
But that judgement was overruled in the afternoon by the Florida
State Supreme Court, which ordered Harris not to certify the
election results Saturday as she had planned.
Such legal wrangling has increased the likelihood that the
Sunshine State’s popular vote will be determined by judicial
interpretation of unclear Florida election law.
“Florida’s law is rather unusual,” said UCLA
School of Law professor Daniel Lowenstein, who is considered one of
the country’s foremost election law experts. “Most
states allow for a hand recount after the election has been
certified, but not Florida.”
Lowenstein said the controversy is due in part to the vagueness
of Florida’s election statute.
“This law is unusual and extremely unwise,”
Lowenstein said. “It is essentially silent on whether or not
counties can revise the vote totals that came in after the
certification deadline.”
The seven Florida justices, six of whom were appointed by former
Democrat Gov. Lawton Chiles, ordered a hearing for 11 a.m. Pacific
Standard Time today to consider arguments on whether or not to
require Harris to include the results of hand recounts now underway
in the final tally.
The political consequences of the Florida Supreme Court’s
injunction were significant, since Gov. Bush, met expectations and
stretched his official lead over Vice President Gore from 327 votes
to 930 after the overseas absentee ballots were counted on
Saturday.
Political science Professor David O. Sears, who has followed
presidential elections for more than 30 years, said he sees the
judicial battle as an extension of the campaign itself.
“They’re both playing hardball, in terms of trying
to win,” he said. “If there’s a manual recount in
certain Florida counties, the chances of a Gore victory are very
high, while the opposite is true for Bush.”
Sears said an evenly divided American electorate is partly
responsible for the indecision in Florida.
“This is very unusual that we have a few hundred votes
determining an election,” he said.
“It’s also true that we have a decentralized
electoral process. The Founders put a system into place that is
based on state authority, rather than federal.”
The legal dispute intensified last Tuesday, when both campaigns
stepped up legal action. Bush sued in Federal Court to stop a hand
recount of votes and Gore sued in state court to overturn the
secretary of state’s decision to certify the election without
revised totals from hand recounts that began after Tuesday’s
5 p.m. deadline.
On Friday, a federal appellate court in Atlanta denied the Bush
camp’s request to stop the hand recounts.
Lowenstein said the mandated certification of votes no later
than one week following the election is one of the few parts of
Florida election law that is clear.
“Florida law says that counties are required to certify
their votes a week after the election, or they will be
ignored,” he said. “The only provision for hand
recounts says that a candidate can request one within 72 hours of
the election.”
Meanwhile, the legal gamesmanship could delay the declaration of
the president-elect beyond Thanksgiving. But some experts think
using the courts to come to a decision is nothing to worry
about.
“There’s rhetoric that the constitutional process
should be allowed to take place and both sides should step
back,” said law Professor Clyde Spillenger. “However,
testing and enforcing ““ if necessary ““ the political
actions of both sides in court is part of the process.”
In the wake of problems in Florida and the possibility that Bush
could win the presidency even if he loses the popular vote, there
have been calls to reexamine the Electoral College.
Senator-elect Hillary Clinton, D-New York, and Sen. Arlin
Spector, R-Pennsylvania, said in separate announcements they will
introduce a bill to amend the Constitution to eliminate it.
Under the United States’ federal system, the states elect
the president, and the popular winner of each state wins that
state’s electors. Each state gets one elector per
congressional representative.
The Constitution requires a candidate to win a majority of all
possible electoral votes ““ 270 out of 538.
“It’s true that abolishing the Electoral College
would imply that the U.S. were more a national entity than a
confederation of states, but we should realize that the U.S. is
more national by any standard than it was in 1787,” School of
Public Policy and Social Research assistant professor Andrew Sabl
said.
Sabl, who studies American political institutions, said
it’s unfair that votes of residents in small states count
more than those of larger states.
“South Dakota, for example, has about the same population
as Fresno County,” he said. “But South Dakota has 3
electoral votes while Fresno County’s share of
California’s electoral votes is only around one.”
But Spillenger, who like Sabl said it’s unlikely that
three quarters of the states would ratify an amendment to dump the
electoral college, cautioned against electing the president by
national popular vote.
“The electoral college forces candidates to seek support
in a wide variety of areas,” he said. “Without it, they
could conceivably focus their attention and campaign only in those
states with high populations.”
Spillenger said the implications of switching to a popular vote
could be more than political.
“The electoral college has the effect of localizing
disputes over very close elections,” he said. “If a
popular vote invoked a dispute, we would probably have to conduct a
nationwide recount. Five votes would be five votes nationwide,
regardless of who carried the state.”