From the archives: Florida judge bars Harris from certifying a winner

This story was originally published in Newsday on November 18, 2000

Washington-The Florida Supreme Court seized control of the hotly disputed presidential election in that state Friday, ordering election officials not to certify the final outcome of the contest until it can rule on whether controversial hand recounts in three counties should be included in the tally.

The high court also allowed the hand recounts and a parallel tally of overseas absentee ballots to continue and scheduled oral arguments for Monday afternoon on whether the recounted votes will be included in the final count, an issue that could spell the difference between victory and defeat for Al Gore and George W. Bush.

In a terse two-sentence order, the court couched its ruling as a neutral effort to "maintain the status quo" until it can clear a path through the legal thicket that has sprung up around the election. Nonetheless, the order represented a significant if provisional legal triumph for Gore, whose lawyers had maneuvered frantically to forestall an anticipated declaration of victory for Bush on Saturday.

In two other victories for Gore, a federal appeals court rejected a Republican request to shut down the hand recounts, and election officials in Florida's largest county, Miami-Dade, voted to begin one. Two other populous counties, Palm Beach and Broward, have already begun hand recounts of every ballot cast in their jurisdictions.

The vice president, in a brief statement to reporters outside his official residence in northwest Washington, called the Florida court ruling an "important" vindication of his position.

"Neither Governor Bush nor the Florida secretary of state, nor I will be the arbiter of this election," he said. "This election is a matter that must be decided by the will of the people, as expressed under the rule of law, law which has meaning as determined in Florida now by the Florida Supreme Court."

Bush's chief legal representative on the scene in Florida, former Secretary of State James Baker, noted that the Supreme Court order had not dealt with the merits of the dispute but had merely preserved the status quo. He expressed confidence that the court would ultimately rule in Bush's favor.

Baker also said the ruling of the federal 11th Circuit Court of Appeals in Atlanta, denying a request for an emergency injunction to block the hand recounts, did not preclude Bush from returning to the federal courts later to press his case that such recounts were "selective" and unfair.

The Supreme Court issued its order in agreeing to hear an appeal of a ruling by a Florida district judge. That ruling, issued earlier in the day, had appeared to remove a major obstacle from Bush's path to the White House by ruling that Secretary of State Katherine Harris acted within her lawful powers by announcing that she would ignore the hand recounts.

The Texas governor began the day clinging to a lead of 300 votes in the race for Florida's 25 electoral votes, which will almost certainly determine the outcome of the presidential election. And that lead inched upward during the day as election officials began counting mailed absentee ballots from overseas residents that had arrived after Election Day.

By mid-evening, with 58 of Florida's 67 counties reporting tallies of the overseas ballots, Bush's lead had grown to 577, according to The Associated Press. Most observers believe the remaining overseas ballots will continue to break in Bush's favor.

Harris, the state's highest election official, had announced her intention to certify the final returns-without including the recount results-once a noon Saturday deadline for counting overseas ballots expired. And the Friday- morning ruling by District Judge Terry Lewis that she was within her authority to do so touched off loud cheers and high-fives among Bush staff members in his Austin, Texas, campaign headquarters.

"The rule of law has prevailed," declared Baker in a news conference in Tallahassee shortly after the ruling was announced.

On Thursday Bush's campaign chairman, Don Evans, and his running mate, Dick Cheney, had strongly signaled that Bush would claim victory in the presidential contest if the Florida election were certified in his favor.

On Friday his communications director, Karen Hughes, declined to address that question, calling it "premature," while announcing that Bush and his wife, Laura, were on their way to Austin from their ranch in Crawford to join their college-student daughters "for the Thanksgiving holiday."

As Lewis released his decision, bouquets of flowers poured into Harris' office, overwhelming her staff. By noon there were nearly 90 vases in the reception area, blocking a sofa and three chairs and giving it the appearance of a florist's shop, or perhaps a funeral parlor. And boxes of long-stemmed roses were piling up behind closed doors, an aide said.

But the roller-coaster ride that the 2000 presidential election has become was only beginning to hand out its daily quota of abrupt turns and dizzying plunges.

"I don't think the surprises are over yet," said Richard McFarlain, a former general counsel to the Florida Republican Party, in what proved to be a prophetic midday comment.

Gore quickly appealed Lewis' ruling to the state Supreme Court, whose seven members were all appointed by Democratic governors. Gore's attorneys, while predicting that the court would ultimately uphold their argument that the hand recount results must be included in the final tally, nonetheless seemed resigned at that point to the fact that Harris would be able to certify Bush as the Florida winner before the Supreme Court could act.

"If Secretary Harris does go forward tomorrow Saturday , we believe that such a step ... would be a mistake," said former Secretary of State Warren Christopher, who heads Gore's team of lawyers, speaking before the Supreme Court acted. "If she does go forward tomorrow, we will take steps to have her action set aside or reversed."

Another Gore attorney, David Boies, said Gore's legal team would not ask the state Supreme Court to bar Harris from certifying the election because he did not believe they could meet one of the requirements for such an order: a finding that certification of the results would do "irreparable harm" to Gore's interests. The court, Boies noted, could always reverse Harris' certification after the fact.

As a result, there was considerable surprise on all sides when the high court, acting "on its own motion," as it said in its order, blocked Harris and the other members of the state's Elections Canvassing Commission from declaring a final result in the presidential contest.

The hand recounts under way in the three counties center on a review of ballots that were rejected by tabulating machines. If a voter's intent can be determined from an examination of the ballot by election officials, it is counted.

Gore hopes the recounts, which are taking place in counties he carried in the election, will produce enough extra votes for him to erase Bush's margin. In Broward, which began its recount first, Gore had a net gain of 34 votes after about one-sixth of the county's 609 precincts had been recounted, according to The Associated Press.

After being declared the winner in New Mexico by a narrow margin, Gore now has 260 electoral votes and Bush 246, with 270 required for victory. In addition to Florida, Oregon is still undecided, with Gore ahead with almost all votes counted. But that state's seven electoral votes are too few to influence the overall outcome.

On Thursday Bush ruled out asking for a recount in Iowa, which Gore won by about 4,000 votes out of 1.3 million cast. Bush faces a Wednesday deadline for deciding whether to challenge Gore's narrow victory in Wisconsin, where some Republicans have lodged allegations of fraud in heavily Democratic Milwaukee.

In the nationwide popular vote, Gore was maintaining a lead of about 200,000 votes out of nearly 101 million cast.

Court's Ruling

Text of Florida Supreme Court's ruling barring state officials from certifying final results of the presidential election, pending oral arguments Monday:

STAY ORDER

In order to maintain the status quo, the Court, on its own motion, enjoins the Respondent, Secretary of State and Respondent, the Elections Canvassing Commission from certifying the results of the November 7, 2000, presidential election, until further order of this Court. It is NOT the intent of this Order to stop the counting and conveying to the Secretary of State the results of absentee ballots or any other ballots.