MAKING SENSE OF THE MESS: A PRIMER ON ELECTION LITIGATION

The U.S. Supreme Court heard oral arguments Saturday regarding election results in Florida. Here is a sorting through of the legal madness by two expert legal minds.

The rule of law

The U.S. Constitution provides that the president shall be chosen by electors appointed by the state legislatures. (Article II, Section 1).

It empowers Congress to determine the time that the states may choose the electors and the day on which they shall vote -- and that day must be the same for all states.

Congress has prescribed that the presidential electors shall be appointed in each state on the first Tuesday after the first Monday in November every four years (U.S. Code Title 3, Section 1).

The Florida Legislature has provided by statute that the presidential candidate with the most votes as certified by the Florida secretary of state shall receive all of Florida's presidential electors (Title IX, Chapter 103, Section 011). Moreover, federal law provides that presidential electors shall meet and vote on the first Monday after the second Wednesday in December -- which this year falls on Dec. 18 -- (U.S. Code Title 3, Sec. 7). And that if a state has enacted laws (prior to Election Day) governing election contests, and if a state has made a determination on such an election contest at least six days before the time fixed for the meeting of the electors, that determination shall be conclusive (U.S. Code Title 3, Section 5). So, any election contest must be resolved on or before Dec. 12 -- six days before Dec. 18.

Federal law also provides that if a state fails to choose its electors before the deadline, "the electors may be appointed on a subsequent day in such manner as the legislature of such State may direct" (U.S. Code Title 3, Section 2). And if a state sends two slates of electors to Congress, both houses of Congress shall decide which slate shall be counted (U.S. Code Title 3, Sec. 15).

What happened

As we all know, the presidential election was Nov. 7. The initial vote tabulation in Florida showed George W. Bush won the state by over 1,700 votes. Florida law mandates an automatic machine recount when the election is that close. Following that recount, Bush was still the winner. Al Gore then requested a manual recount in four heavily Democratic counties. Florida law provides that either candidate may request a manual recount in any county (Title IX, Chapter 102, Section 166.4).

When such a request is made, the county's canvassing board may then conduct a manual recount of 1 percent of the county's total votes in at least three precincts. If that 1 percent sampling indicates "an error in the vote tabulation which could affect the outcome of the election," the board may, but is not required to, conduct a full manual recount (Title IX, Chapter 102, Sec. 166.5). Florida legislators involved with drafting and enacting this statute say that "an error in vote tabulation" means a machine error. Therefore, before the canvassing board may order a full manual recount, it's 1 percent sampling must show that there were sufficient machine errors that could affect the outcome of the litigation.

Consequently, none of the four counties had the statutory authority to conduct full manual recounts.

But assuming certain counties did find an error in the vote tabulation, they had the option, not the requirement, to conduct a full manual recount. Public officials cannot be forced (through a writ of mandamus) to perform an act over which they have discretion.

Therefore, Gore's lawsuit to force Miami-Dade County to conduct a full manual recount is without merit.

Florida law further provides that if a county's returns are not received by the secretary of state by 5 p.m. on the seventh day following the election, the secretary of state shall ignore that county's votes (Title IX, Chapter 102. Sec., 111). However, Florida law also provides that the secretary of state may, but is not required to, ignore late-filed ballots (Title IX, Chapter 102, Sec. 112). But the "shall ignore" statute spells out the secretary of state's duties, and the "may ignore" statute merely provides notice to county canvassing board members of the penalties that may be invoked by the secretary of state should they fail to meet the deadline for providing vote tallies to the her office.

Florida Secretary of State Katherine Harris announced she would enforce the statutory deadline. Gore sued, and Circuit Judge Lewis ruled that Harris was not required to enforce the deadline but acted within her proper discretion in doing so. The Florida Supreme Court, on its own motion, issued a temporary stay against Harris, stopping her from certifying the election results on the day and time provided by law, pending a full hearing before the court.

After reviewing the briefs and hearing oral argument, the Florida Supreme Court reversed Judge Lewis' ruling and held that Harris abused her discretion in enforcing the statutory deadline. The court completely ignored:

1. The statutory requirement that a full manual recount must be triggered by machine error.

2. The statutory seven-day certification deadline. It imposed a new deadline out of thin air.

Amazingly, the court reportedly relied heavily on an Illinois case cited by Gore's attorneys ostensibly authorizing the counting of dimpled ballots. It was later learned that Gore's attorneys misrepresented the Illinois precedent. In fact, the court in the Illinois case ruled that dimpled ballots should not be counted in vote tallies. Multiple bar ethics complaints have already been filed against the lead Gore attorney, David Boies.

The Democratic counties targeted by Gore for recounts include Broward County. It completed a full manual recount within the new deadline but changed its rules in midstream to include dimpled ballots -- even chads with barely discernible indentations -- ensuring that Gore received more votes. Moreover, at least one Democratic canvassing board member was caught bending ballots so that light could peak through an otherwise unpricked Gore chad. Transcripts of some of the vote-counting dialogue would be uproariously funny were it not for the gravity of the situation.

In another targeted county, Palm Beach, dimpled ballots were not counted, but virtually every other kind of marked chad was counted.

However, Palm Beach canvassing board members were unable to complete their recount within the extended deadline. Secretary of State Harris refused to grant another extension for the late filing beyond the second deadline. Nonetheless, Palm Beach County continued counting past the deadline.

Another lawsuit has been brought by the Democrats to compel a new vote in Palm Beach County. The claim is that the so-called butterfly ballot was too confusing, causing a small number of voters to mistakenly punch their ballots for Pat Buchanan rather than Gore. Pre-election advertisements, notices on the ballots themselves and notices in the polling places informed voters to give special attention to the ballot design and ensure that they properly cast their votes. In any event, there is no legal basis or precedent for a new vote in Palm Beach County. Indeed, a new vote would violate the Constitution's requirement that Congress set the day for a national election (Article II, Section 1).

A third targeted county, Miami-Dade, concluded that it could not meet the Florida Supreme Court's extended deadline and decided not to conduct a full manual recount. Again, because it is within its discretion not to conduct a full manual recount, Gore's subsequent suit to compel a recount there is baseless.

And, of course, Gore's legal team prepared a five-page memorandum outlining a legal strategy for challenging and excluding overseas ballots cast by men and women in uniform. In particular, Gore sought to exclude military ballots that lacked postmarks. However, federal law prohibits the exclusion of such military ballots. Bush filed suit against several Florida counties to force them to include these ballots in their total vote tallies. So far, some counties have relented. Others have not.

What it all means

The federal Constitution empowers the state legislatures to decide how they will appoint their electors. The Florida Legislature so specified in its statutes. One of those statutes provides that a county shall be permitted to conduct a full manual recount only if a partial manual recount of 1 percent of the ballots shows that there was a machine error that could affect the outcome of the election. Another required the secretary of state to ignore late-filed ballots. Yet, the Florida Supreme Court flagrantly ignored the plain meaning of these statutes and rewrote the law by judicial fiat, thereby usurping the Florida Legislature's federal constitutional authority. Even so, the Florida Supreme Court's extended deadline did not produce a sufficient number of additional Gore votes to certify him the winner.

Thereafter, Gore filed an election contest, which is his legal prerogative under Florida statutes. Meanwhile, Bush's attorneys appealed to the U.S. Supreme Court seeking an order, if necessary, overturning the Florida Supreme Court's unconstitutional intervention, which essentially divested the Florida Legislature of its constitutional authority to appoint electors.

In his various lawsuits Gore is seeking an order requiring:

* Palm Beach County to adopt the liberal standard for accepting dimpled chads.

* Palm Beach County to hold a new election.

* Miami-Dade County to resume its manual recount.

* Katherine Harris to accept the various counties' recounts in violation of the Florida Supreme Court's extended deadline.

Moreover, a separate lawsuit brought by a Democrat in Seminole County seeks to invalidate thousands of absentee ballots because voter-registration numbers were inserted on the ballot applications by hand due to a software problem. There is no allegation that ballots were tampered with.

The stakes

If the various election lawsuits fail to result in sufficient additional votes for Gore, Harris's certified results will stand and Bush shall be the next president.

If any of the election contests are still unresolved by Dec. 12 and the election results are still officially unresolved, federal law empowers the Florida Legislature to pick the slate of electors.

If the election contests result in some court appointing Gore president-elect, several scenarios could occur:

* The Florida legislature, rejecting the unconstitutional interference in the electoral process by the Florida judiciary, could pick a slate of Bush electors and send it to Congress.

* If two separate slates of electors are sent to Congress, the slate certified by the governor of Florida, Jeb Bush, is supposed to be controlling.

* A majority vote in both Houses of Congress is required to reject any electoral votes. If that occurs, a majority of the state delegations in the U.S. House will choose the next president (with each state getting one vote), and the U.S. Senate will choose the next vice president (by majority vote).

The U.S. Supreme Court could decide that the Florida Supreme Court acted beyond its authority in holding that Secretary of State Harris wrongly enforced the certification or in sanctioning the manual recounts in the few counties when they were unauthorized by statute. The high court could then reverse the decision of the Florida Supreme Court, leaving intact Harris's original certification, subject to the various Gore election contests.

And perhaps the U.S. Supreme Court could decide, after considering the briefs and oral argument, not to rule on the merits based on the political-question doctrine. This would mean that it is ultimately up to Congress to sort things out, as contemplated by the Framers and set forth in the U.S. Constitution.

If the U.S. Supreme Court issues a narrow ruling and holds that the Florida Supreme Court's intervention in the Electoral College process usurped the federal Constitution (the exclusive authority granted to the state legislature to appoint electors) or violated federal law by retroactively changing state election law after the election, the bases for most of the legal contests now being waged by Gore in Florida courts would cease to be relevant. In other words, the underlying bases for these claims -- including demands for more recounts, new voting, counting dimpled ballots -- would no longer exist since the Florida Supreme Court will have acted unconstitutionally when it prohibited Harris from certifying the election under the earlier statutory deadline.

~David Limbaugh is a Cape Girardeau lawyer and a nationally syndicated columnist. Mark R. Levin is president of Landmark Legal Foundation in Herndon, Va.