November 10, 2000
Election May Be Decided by Courts
by Ann Gearan
Washington (AP) -- Taking an election to court is easier in Florida than in many other states, but making a challenge is a far cry from winning one, and judges everywhere are traditionally leery of getting involved in such cases, election law experts say.
Turmoil over ballot confusion and alleged voting irregularities in the presidential race in Florida continued Friday, and the contest between Republican George W. Bush and Democrat Al Gore remained a stalemate.
Democrats have said they are convinced Gore won the election and could sue to prove it, although they toned down the rhetoric Friday. Vice President Gore trails Bush, the Texas governor, by fewer than 400 votes.
Florida law lays out five grounds for challenging elections: an ineligible candidate, fraud, bribery, illegal votes and frustration of the voters' will.
Voters have already filed at least six state lawsuits alleging improprieties. It was not clear whether the Gore campaign might join one of those suits, file its own, back a new suit by other individual voters or stay out of court altogether.
A Gore challenge in state court in Florida would likely allege illegal voting, frustration of voters' will or both, lawyers said. Those broad categories seem to open the courthouse doors wide, but offer no guarantees after that, lawyers said.
''On the surface, the Florida laws are pretty generous in terms of allowing people to go to court,'' said Trevor Potter, a Republican election lawyer in Washington. ''But it's very much the luck of the draw what judge you get. Some judges encourage this kind of thing, others would be horrified at the thought.''
The election hangs on Florida and its 25 electoral votes. Amid recounts and absentee ballots, the answer Americans expected to get Tuesday night -- who will succeed Bill Clinton on Jan. 20 -- isn't likely to come before Nov. 17, when the state will finish counting ballots mailed in from overseas.
An unofficial tally by The Associated Press of the recount in Florida's 67 counties showed the Texas governor with a 327-vote lead over the vice president. State officials said their recount showed Bush leading by 960 votes with 66 counties reporting.
A Florida lawyer working with the Democratic National Committee and the Gore campaign said if Democrats decide to sue they would try to show irregularities in Palm Beach County through statistical comparisons with other counties and through witness testimony.
A state court challenge would likely include a request to delay certification of Florida's vote, meaning the state could sit out the Electoral College meeting next month.
Gore campaign chairman William Daley said one possibility is a lawsuit seeking a new election in the heavily Democratic Palm Beach area, site of the most dramatic allegations of voter confusion and illegal ballots.
A challenge could come in state or federal court, although Democrats said privately that the Gore camp is focusing on state courts because of established precedents there governing a possible revote.
Although court-ordered elections are extraordinarily rare nationwide, a Florida judge ordered a revote two years ago in the disputed Miami mayor's race. The Miami judge cited ''a pattern of fraudulent, intentional and criminal conduct'' involving absentee votes. Ultimately, the election was overturned, but not on a revote -- an appeals court found enough evidence to reverse the election outright.
Also in 1998, the state Supreme Court ruled that election results may be thrown out without evidence of fraud or tampering if there is ''reasonable doubt'' that the outcome reflected the will of the voters. The court, ruling in a disputed sheriff's race, did not take the next step of specifying what courts ought to do after invalidating an election.
In 1974, a Florida trial court ordered a new election for several losing candidates who challenged the layout of an unusually long ballot. In that case, an appeals court overturned the lower court decision.
Going to court to try to overturn the election would be a momentous decision that Potter called ''the step off into the abyss.'' It would likely mean a chain reaction of appeals and counter-punches, including suits challenging election results in other states, Potter said.
Florida has two levels of appellate courts, culminating in the state Supreme Court. The current seven justices were all appointed by Democratic governors.
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