New York Times Editorial
November 17, 2000


Rule of Law in Florida


The unanimous ruling by the Florida Supreme Court to allow the hand counting of votes to resume in Palm Beach County brought a note of order and reason to the last act of the presidential election. Today, in a State Circuit Court in Tallahassee, Judge Terry P. Lewis needs to put teeth in the State Supreme Court ruling by directing Katherine Harris, the secretary of state, to accept the hand counts from Palm Beach and other disputed counties before she certifies the statewide vote that will determine the next president.

Only another forceful court action will keep Ms. Harris from single-handedly manipulating the decision in Florida. Earlier this week, Judge Lewis ordered her not to use her powers arbitrarily. She immediately defied that ruling by declaring that she would not accept any late hand-counted votes. Even as those counts proceeded under the authority of the State Supreme Court, Ms. Harris's lawyers declared yesterday that she would certify the machine-counted vote on Saturday if she had the authority.

The state and federal judiciary cannot tolerate such defiance on a matter of paramount national importance. Today, Judge Lewis must take away Ms. Harris's powers to bring the election to a premature end in order to claim the election for a candidate, Gov. George W. Bush, for whom she worked as a state campaign co-chairwoman.

The need for court supervision of the final count between Mr. Bush and Vice President Al Gore goes beyond curbing the hubris of a minor state officeholder placed by fate at the hinge of history. Florida's justices, as well as the state and federal jurists handling other aspects of the case, have a clear legal foundation. Florida law is built around protecting "the voter's intent." That intent cannot be known unless all ballots are counted under legislation that specifically recognizes hand counts as the ultimate level of accuracy.

The right to vote is the most fundamental civil right, and judges who act decisively to protect the franchise are not meddling in the political process. They are protecting it in much the same way that leading jurists of the 1960's, like Frank M. Johnson Jr., the Alabama federal judge, did with powerful rulings that curbed biased, overreaching local officials. In this case, the motives are not racial. But Secretary of State Harris is acting with obvious partisan motives to place a a choke hold on the democratic process in the state of Florida. By that act, she is interfering with the rights of millions of Americans to see the contest between Mr. Bush and Mr. Gore decided by the best count available under imperfect circumstances.

The Florida Supreme Court's ruling yesterday was, astonishingly, the fourth rebuke to Ms. Harris and the Bush lawyers in as many days. On Monday, a federal judge denied the Bush campaign's request to block the disputed hand-counted votes. On Tuesday, Judge Lewis ruled that Ms. Harris was wrong to say that she was required to ignore any late hand- counted returns except when the delay was caused by an act of God. On Wednesday the Florida Supreme Court denied Ms. Harris's request to block the hand counts. Yesterday's ruling rejected the reasoning of Ms. Harris's office that only a mechanical breakdown of the voting machines could justify the recount. The justices upheld the authority of Palm Beach County and by extension other counties to proceed with the manual tabulations.

The Bush strategy is obvious. The governor's aides do not want to risk a complete statewide count. That is the reason Mr. Bush refused Mr. Gore's offer on Wednesday for both of them to forgo future litigation in exchange for a definitive recount. In his brief television speech on Wednesday night, Mr. Bush belittled the accuracy and fairness of hand counts. But he repeatedly ignores the fact that hand counts are used in his own state and that voluntary hand counts in several Florida counties actually increased his vote.

Events in Florida this week add up to this. After a slow start, the courts are now acting properly to draw fair rules for the vote count at a time when Ms. Harris has been making up new rules on the run through the purposeful misinterpretation of state law. If the pattern of principled court rulings continues today, the hand counts will produce a reliable vote and a presidency that will not have a cloud over it when claimed by either Mr. Bush or Mr. Gore.

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