November 15, 2000
Margaret Warner leads a discussion on election law.
MARGARET WARNER: For that we're joined again tonight from Tallahassee by Lance DeHaven-Smith, associate director of the Florida Institute of Government at Florida State University. And also with us is Pam Karlan, an election law specialist and professor at Stanford University Law School. Welcome to you both. Professor Karlan, how do you read today's legal developments at the Supreme Court and elsewhere?
PAM KARLAN: Well, the development at the Supreme Court is their decision essentially not to do anything today and to allow both the hand counts that are going on to continue going on, and to allow the litigation that is going on in state trial courts right now to continue before they step in. The 11th circuit, which is a federal court, has now stepped in at least to hear a challenge that is an appeal by the Bush campaign and Republican voters from an earlier decision from a federal judge not to stop the counting of votes by hand.
MARGARET WARNER: So which side do you think from a legal perspective has more reason to be -- if either side does -- to be pleased by today's developments?
PAM KARLAN: Well, I think that the Democrats are probably slightly more pleased by today's developments since no one has yet actually stopped a hand count.
MARGARET WARNER: Do you think -- I know that the Florida Supreme Court ruling was just one little paragraph, but do you read it to say that the Gore proposal or Gore petition to have the Supreme Court consolidate the cases and take on all these issues themselves is still alive?
PAM KARLAN: Well, there is still - yes -- another petition in front of the Florida Supreme Court. The one they decided not to act on today was the one by Katherine Harris. They also have one from Palm Beach County in front of them. And it asks for some briefing that I think will be completed tomorrow, and then they'll decide that case.
MARGARET WARNER: Professor DeHaven-Smith, how do you read today's developments?
LANCE DeHAVEN-SMITH: Well, I think it was certainly good news for the Democrats. They want to keep the manual counting alive. It's the only chance that they have of course to come out ahead in this election. Katherine Harris had asked the court really to step in and stop everything at this point, and when the court refused to do that, it really also signaled not simply that the manual count was going to go on, but it sounds too as if the court is going to support counting those ballots when they end up in Tallahassee. The court has ruled that a 1998 case in Volusia County, that really the most important thing is do the counts reflect the will of the voters? And it's not the technicalities of the law so much as it is the adequacy of the voting.
MARGARET WARNER: Tell us a little bit about the makeup of this Florida Supreme Court.
LANCE DeHAVEN-SMITH: Well, they are all Democratic appointees. They are appointed essentially for a lifetime appointment but they have to stand through what is called merit retention where if the voters vote them out, they could be put out of office. They lean a little bit to the left on social issues. They have had some conflict actual we the Republican administration and with Governor Bush, Governor Jeb Bush, They overturned the school voucher program that the Republican leadership had developed. We have a requirement in the Florida constitution that all the children in Florida be afforded a good education; an opportunity to a good education and the justices ruled that the voucher program by potentially siphoning money off of the public sector and into the private sector schools could undermine that. This so angered the Republicans -- along with some other things the court was ruling with regard to capital punishment -- that the Republicans began to speak of enlarging the court and packing it with their appointees.
MARGARET WARNER: Professors Karlan, where do today's developments now leave Katherine Harris and particularly the secretary of state? I'm particularly thinking of yesterday, a lower court judge in this whole circus of court had ruled that she had discretion still to essentially reject all of the amended vote totals that are going to be coming in from these other three county. Where, if you were Katherine Harris and you faced this decision from the Supreme Court, what would be your legal opinion as to how much discretion you still had?
PAM KARLAN: Well, you have discretion but if I were Katherine Harris, you have to exercise that discretion in a nonarbitrary and in an appropriate manner. And that is you have to wait to see what the counties tell you, not just now when they filed some legal documents but also once they've completed their recounts so they can tell you why it is that they think that the new totals, the adjusted totals, more accurately reflect the will of individual voters - and then you make a decision based on that. If I were Katherine Harris, I wouldn't make any more announcements before the new totals come in from the various counties that are conducting canvasses.
MARGARET WARNER: And, again, as a legal matter, when a judge has given a state official discretion how reviewable or appealable is that by higher courts later?
PAM KARLAN: Well, this discretion is actually given by Florida law not by the judges; it's in the statutes. And the way that courts normally review issues of discretion is under standards that is called an abuse of discretion standard, so that they understand that the official may have to make close calls and there maybe a lot of complicated circumstances, and they just want the official to act reasonably. They won't substitute their judgment for her judgment. So it's not as if it's a pure question of law which courts review denovo. On the other hand, although they won't simply substitute their judgment, her judgment has to be reasonable under the circumstances, so if she colors too far outside of the lines, they will overturn her acts as an abuse of discretion.
MARGARET WARNER: Professors DeHaven-Smith, last night you talked with the conflicting political pressures on Katherine Harris. Where do you think she stands now in terms of how much running room she has politically?
LANCE DeHAVEN-SMITH: A lot less. She was facing a situation of a no win for her. She was going to have to either kick back the manual recounts headed to Tallahassee and that way assure the victory for Governor George W. Bush, or she was going to have to accept them and that could lead to Gore's victory. What she tried to do was kind of pass the decision off to the Supreme Court, get them to decide, but at the same time, she recommended that they stop the manual recount, which was sort of the best thing for the Republicans. But the court said instead was they pushed it back to her and said it has to be your decision but - you know -- she has a lot less leeway. It looks like she pretty much has got to accept these ballots when they come in, and even if they are substantially late and if she doesn't accept them and doesn't include them in the count, she'd better have a very good reason not to. So she is -- really has much less room than she had before.
MARGARET WARNER: Professor Karlan, given all the developments in all these different court venues today, would you say we are closer to a resolution of all this, or is Jim Baker right when he say this is just a process run amok?
PAM KARLAN: Well, I don't think it's yet a process run amok, although one of the troubling developments today is the decision of the federal court to start hearing an appeal of the federal court lawsuit before we know what the state is actually going to do, because so many of the issues in this case are questions of state law. They are not questions of federal law, and really the state system should decide those issues before the federal system gets involved. We won't know until Katherine Harris decides whether or not to accept the recounts whether or not any federal voters' rights have been denied. And so I'm not sure exactly what the 11th Circuit will be doing in hearing the appeal now that would be appropriate. I really think they should wait for the state system to work its way out, and I think that will be relatively expeditious fashion.
MARGARET WARNER: Professor DeHaven-Smith, what is your reading about whether we are closer to a resolution here than say we were last night or maybe farther away?
LANCE DeHAVEN-SMITH: Well, I actually think it's really coming to a head now. The issue of whether the manual recount is going to go forward has now been decided. It is going to go forward. The question of whether the recounts can come in after Friday I think has been pretty much settled. I think you could probably take that back into court, but it's certainly looking like the courts are leaning to accept these ballots, so it now comes down to a question of how the count ultimately comes out. That is unclear. I think it's open as to whether Gore or Bush will prevail in all of this, but ultimately you're going to get a count pretty soon.
Then I think the question will be: what will happen in federal court -- and whether they can, the Republicans can go back and argue against the manual recount and the way it was done and so on. But I think we are headed toward a decision pretty quickly, certainly within the next seven or eight days you are going to finish up in Palm Beach County; you're going to finish up in Broward County. I would say the reason the Republicans are probably very concerned about stopping the manual recount is it looks like that will probably bring enough votes in to push the election to Gore -- and there won't be enough overseas ballots even if they widely fever the Republicans -- to counterbalance that. So it has truly been a game of trying to stop the manual recount, and it doesn't look now as if the Republicans are going to be able to do that.
MARGARET WARNER: All right. Well, more to come, professors both. Thank you.