November 14, 2000
Gwen Ifill leads a discussion on Florida election law.
GWEN IFILL: I'm joined by two experts in Florida law and politics. Jon Mills is the interim dean of the University of Florida Law School, and author of a book on voter rights. He was previously a Democratic state representative, and he also served two years as speaker of the house in the Florida legislature. Lance DeHaven-Smith is associate director of the Florida Institute of Government at Florida State University.
Dean Mills, we just saw the flurry of legal action which is happening even still as we speak in Florida. How are we to interpret the way things stand right now?
JON MILLS: Well, I think there are three legal questions still being sorted out. One: Is the ballot itself, the butterfly ballot, legal? We know there's a legal challenge in Palm Beach about that issue. That will probably not be sorted out in the near future. The big issue is what do you do with the manual counts? It appears the manual counts are going to go on. It also appears that Secretary Harris has the discretion to count those votes or not. Based on what Palm Beach says, those votes will not be in until after Saturday, after the deadline for the foreign absentee ballots. So the question then becomes if those ballots are submitted by Palm Beach after Saturday, what will Secretary Harris' reaction be? If she turns down that count, from what I heard from the commentary on the Gore attorneys, they're likely to challenge that as arbitrary. You also have the potential under Florida law 120.168, the ability to contest election if there are... if legal votes are not counted. So the question would be, are these votes, these manually recounted votes, legal votes? And ultimately the question is, would they have an effect on the election? So the actual circumstance is going to be very important; that is, if these are counted out and they don't have an effect on the election, you could expect Secretary Harris to turn down those submissions and possibly be upheld, whereas if they do have an effect on the election, then I think you might expect a different result.
GWEN IFILL: Professor DeHaven- Smith, all eyes are on secretary of state Katherine Harris. She seems to have a broad amount of discretion in this case to actually determine the outcome of the Florida vote. How unusual is this, and how wide actually is her discretion in this case?
LANCE DeHAVEN-SMITH: I think she has probably some legal discretion, but, boy, she's in a tough situation politically. On the one hand, there's a lot of pressure from residents of the state to go ahead and allow the count to proceed and make sure you get a careful and full accounting. On the other hand, the stakes are very, very high for the political parties here. You've had Florida become gradually a Republican state over the last decade, but barely so. The Democrats sense the ability to come back if Gore wins this election, and even the fact that he did so well, given that George W. Bush's brother is the Governor here, they feel like they've kind of come back. The Republicans, for their part, this is a time when they could really seal their control over the state. So the partisan stakes are very high.
There will be a lot of pressure on Secretary Harris to lean toward the Republicans, but there's countervailing pressure from public opinion and the high scrutiny to really keep things open. I think when she went to court and signaled everybody early on, told everybody, "look, I'm fixing to do this and I'm going to hold to this guideline, this requirement, this deadline," and pushed it into court, she really allowed a situation where you could bring some objectivity to this and get some outside help. Unfortunately I don't think she got all the help she could have used. Frankly the court said, well, she could set this deadline but now she has to make the difficult decision later of whether she's going to accept these ballots - these manual counted ballots that come in late. I think John is right, there will be a lot of pressure for her to accept those up to Saturday. I think a bigger issue becomes what happens if they come in next week, which is likely, given how long it's going to take to do the manual recount in some of the counties.
GWEN IFILL: Dean Mills, because of that kind of pressure, there seems to be dozens of legal options for either of these campaigns to pursue. Is it likely that they can really have the political wherewithal to pursue each and every one of those options as they continue to branch out first to this circuit court and then to that Supreme Court?
JON MILLS: Well, I would think these options would begin to narrow down. You begin to... These options will have to be focused ultimately I think in the Florida Supreme Court. I think it's... my hope as somebody who is an attorney is that the judicial system will perform well whatever role it has in this because credibility of the final outcome is probably the most important thing right now. I think that we're going to see... some of these suits are going to drop off and there may ultimately be only one legal question, and at that point, the Florida Supreme Court would probably be the most likely point at which that would be decided.
GWEN IFILL: If I can ask you to follow up on that point, it seems that there are so many options which are all legal. Yet there is a widely accepted idea of an error rate in elections, certainly in local elections as much as in presidential elections. At what point does the pursuit of the perfect begin to trample the concept of fairness?
JON MILLS: Well, that's a perfect point because none of these elections are supposed to be precisely perfect. They're supposed to express the will of the people, which is why this microscope has been on Florida. You have such a narrow margin. If someone won by 500,000 votes, we wouldn't be having this conversation. There would be illegal ballots, there would be disagreements, but in fact, the court decision would be because the will of the people was expressed by a margin beyond any irregularities, it wouldn't be an issue.
GWEN IFILL: Professor, of course in Miami there was quite a spectacular voting fraud case a couple years which nobody compares this to, but all the same, is there any suspicion that you have heard that there is anything intentional or criminal involved in this entire recount confusion in Florida?
LANCE DeHAVEN-SMITH: Absolutely not. And I would stress that Florida officials have been following rigorously the law. The recount was not something that was just done. You hear things about, well, they're just counting over and over and so on. These were required by law to have a recount based on the election being decided by less than 0.5% of the voters. There is a procedure in the law that allows the candidates to ask for a manual recount after the machine recount, and you have to do a test to see if there's enough variation between the manual count and the machine count before you proceed further. Everything has really been followed by the book. There's so much rhetoric and so much activity around this, and then the separate lawsuits from individual citizens. And you've got Jesse Jackson and African American leaders coming into the state. And you have the two ex-secretaries state. I mean, this is... but despite all of that chaos around it, the reality is that the state has been following very carefully its legal procedures, and there has been no substantiated allegations of fraudulent voting or anything like that. There have been... go ahead.
GWEN IFILL: I was just thinking, what if the reality becomes after today or after this weekend that a big chunk of counted ballots cannot be certified because of the secretary of state's decision?
LANCE DeHAVEN-SMITH: Well, I think that would be very problematic. I do think that there's a tendency among the public, given the public opinion polls, to suggest that people are ready to wait at least a while to get a careful and full accounting of the vote. They want to make sure it's legitimate and open. I think there would be concern if there was any truncation of that either by rejecting some of the ballots or cutting things off too quickly. But by the same token, of course, on the other side, there's concern that if you drag this thing out and people are just looking for the answer they want and so on. So it's going to have to be something that's done very openly, at a measured pace, to reach a finality I hope within the next week and that we would have a decision. I think once we get a decision in Florida that I know Floridians will rally behind that. They're going to accept it unless there's just something completely out of the blue. But so far, I think people have been doing very well in dealing with the legal ambiguities and going to court when they need to, finding out what the situation is and proceeding accordingly.
GWEN IFILL: Dean Mills, I just want you to follow up on that. Given what you know about what the legal options are that are open, and the political limitations, which can be placed on this whole process, do you think, as Mr. DeHaven-Smith does, that there's going to be some sort of resolution this weekend?
JON MILLS: I think all of us who make predictions have probably learned something this week.
GWEN IFILL: ( Laughing )
JON MILLS: I would think we just need to wait and see what plays out -- one of the things I really agree with what lance has said. When you look at what's happened here, Floridians and all of the folks in this have played their roles. I don't believe... I believe Katherine Harris had a legitimate question as to what the law was on certification. She asked it. I think the judge made a ruling that was difficult and leaves open some options. I think when we look back on this, I hope that we can be proud that we worked through a difficult situation. I agree with lance that we're going to have... we're going to pull behind whatever the result is, and I think the American people will too.
GWEN IFILL: Dean Mills and Professor DeHaven-Smith, thank you both very much.