For court, it's activism v. restraint

If the legal battles surrounding the 2000 presidential election were a football game, the judges would be punters - at least so far.

Eighteen judges - including the 12-judge US appeals court in Atlanta - have ruled on issues in the high-stakes litigation. Without exception, all opted to leave to elected officials the key decisions that might determine the next US president.

Today the dispute moves to the seven justices of the Florida Supreme Court. The question is whether - in the language of football - they will act like punters or try to be game-winning quarterbacks. That is, will they adopt the hands-off posture of previous judges? Or will the justices - all appointed by Democratic governors - take an activist stance, using their power as the court of final resort in Florida to decide the election.

If they do, it will mark the first time in US history a presidential outcome has turned so heavily on the decisions of judges.

"This court is not unwilling to dive into political questions when it wants to," says Robert Natelson, a law professor at the University of Montana who has followed the Florida court through his work with the Initiative and Referendum Institute in Washington. "It is not as deferential to the political process as courts have traditionally been."

Still, Florida's highest court may try to avoid that posture in this case, say Mr. Natelson and other legal analysts. They suggest the justices might seek a way to push the controversy back into the political sphere to insulate the court from direct involvement in the election process.

The court, for example, could cite the need for a hand recount of all presidential ballots in Florida - and then set a statewide standard as to what constitutes a valid vote on a hole-punch ballot. Under current state law, the standard is set county by county.

"There should be a statewide standard," says Pam Iorio, president of the Florida Supervisors of Elections, an organization of all the state's top elections officials.

Ms. Iorio says the combination of no common "chad" standard and differing policies about when to call for hand recounts of ballots has produced an uneven election system across the state.

"If the Florida Supreme Court said that there should be a manual recount in the counties that are currently undergoing them,... then I think that all 67 counties should manually recount," Iorio says. A statewide manual recount could be completed in about two weeks, she says.

Whatever Florida's high court decides, it must comport with the US and Florida Constitutions. And it must meet public perceptions of fairness, analysts say.

The first indication of how the court may view the election impasse will come this afternoon, when lawyers for Al Gore and George W. Bush argue their positions before the court in Tallahassee.

The hearing arises amid a kind of legal and political chess match between the Bush and Gore camps, with each side trying to outmaneuver the other.

Bush now holds a 930-vote lead. His forces favor machine recounts to determine who won the Florida election. Gore backers want machine recounts supplemented with hand recounts in three heavily Democratic counties in south Florida.

The Supreme Court is being asked to break the deadlock.

At the center of the controversy is Secretary of State Katherine Harris (R), who has decided to disallow hand-count tallies from the three counties. Ms. Harris, who was also co-chair of Mr. Bush's Florida campaign, has come under intense criticism from Gore supporters, who accuse her of abusing her discretion. They say Harris's decision effectively disenfranchises voters in the three counties where hand counts are under way.

"It is contrary to a democratic system that rests on elections being determined by the will of the people, not the whim of state officials," the Gore legal brief says in part.

The term "will of the people" is taken from a 1998 Florida Supreme Court precedent that may offer the best insight into how the justices are likely to view the election impasse. That decision expresses the justices' unanimous view that the "will of the voters" can sometimes take precedence over an "unyielding adherence to statutory scripture."

The decision, Beckstrom v. Volusia County, involved a dispute between two candidates who both claimed victory. The court said: "The real parties in interest here ... are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration."

The case suggests that Gore supporters advocating hand recounts aimed at learning the "will of the people" might enjoy an advantage over a public official, like Harris, who cites strict adherence to a state law in preventing the use of hand recounts.

But Harris and the Bush camp are not without their own weighty legal arguments. They are expected to focus on the separation- of-powers doctrine, which says judges must respect the authority delegated by the state legislature to elected officials like Harris.

They say Florida law grants Harris the discretion to exclude hand-recount figures if they are received after the deadline established by state law. They argue that judges may not second-guess elected officials who make reasoned judgments that may differ from their own judgments.

As for options, the court has two clear alternatives, either of which would immediately tip the balance of the election.

If the court finds that Harris has the power to exclude hand-recount numbers from the vote totals, then Bush would win the White House.

Or, if the justices decide that Harris has abused her discretion and orders her to include the hand recounts in the totals, it could tip the election in Mr. Gore's favor. The problem with this scenario is that it might leave the impression that the high court is interested in ascertaining the "will of the people" only when those people happen to live in heavily Democratic counties.

It would also raise questions about whether, in a statewide election, the "will of the people" must be expressed on an equal basis - with no special preferences favoring Democratic voters over any other voters.

(c) Copyright 2000. The Christian Science Publishing Society