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Judge rules Florida Secretary of State did not abuse her discretion in denying recount

Leon County, Florida, Circuit Judge Terry Lewis listens to testimony during a hearing in his court in Tallahassee

A Florida judge ruled Friday that Secretary of State Katherine Harris did not arbitrarily refuse to accept hand recounts of Florida's presidential ballots in some counties. Vice President Al Gore's lawyers and other plaintiffs filed a combined lawsuit claiming Harris abused her discretion in refusing to accept further recounts.
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By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- Lawyers for Democratic presidential candidate Al Gore asked a Florida judge Thursday to rule that Florida Secretary of State Katherine Harris arbitrarily refused to accept hand recounts of Florida's presidential ballots in some counties despite a court order to the contrary.

Gore's side also asked Leon County Circuit Judge Terry Lewis to nullify the Tuesday certification of the statewide ballot, allow counties to continue manual recounts and to ask Harris to hold off on final certification after counties submit recounts.

WHO'S WHO Who's who in the election recount   ALSO • Florida Supreme Court order allowing Palm Beach County manual recount - November 16, 2000 (FindLaw) • Emergency Motion of Democratic Party of Florida and Vice President Al Gore to Compel Compliance With and For Enforcement of Injunction - McDermott v. Harris - November 16, 2000 (FindLaw) • Amended response of Florida Secretary of State to emergency petition (FindLaw) More related documents PDF documents require Adobe Acrobat Reader

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Rejecting the claims from Gore and other plaintiffs, Harris' lawyer argued that his client clearly articulated why manual recount totals were unacceptable, thus complying with the prior court order and state law.

A lawyer for Republican presidential hopeful George W. Bush argued that Gore's side was asking Lewis to interfere with the administration of the election process, a job that belongs to the executive and legislative branches of Florida government.

Reasons for the lawsuit

The Gore campaign, joined by the canvassing boards of Volusia and Palm Beach counties and the Democratic Party of Florida, sued Harris and other state officials and Bush in Leon County Circuit Court.

Lewis was the same judge who ruled Tuesday that Harris was authorized under state law to enforce a 5 p.m. Tuesday deadline to certify all of the 6 million votes cast in Florida on November 7.

But Lewis also said counties could submit manual vote recounts after the deadline, ordering Harris to "properly exercise her discretion" in deciding whether to accept or reject hand-counted ballot totals.

Harris gave counties until Wednesday afternoon to explain in writing why they could not complete counting votes by 5 p.m. Tuesday. She announced later Wednesday that she would not accept manual recounts. The Gore legal team announced in quick order it would sue Harris on Thursday.

Gore's lawyers and other plaintiffs filed a combined lawsuit, which marks the latest twist in the bitter political and legal battle to determine the winner of the presidential contest in Florida.

Whoever wins Florida's 25 electoral votes will likely win the presidency. Florida is set to announce the winner this weekend, after absentee ballots are counted, barring court orders postponing that timetable.

Harris said Tuesday the results show Bush beating Gore by 300 votes and the final outcome will be announced after absentee ballots, due Friday, are counted.

Gore camp's arguments in court and legal filings

Gore's lawyers argued that Harris did not exercise proper discretion in rejecting manual recounts and that she seemed to have made up her mind before actually seeing the "amended" vote totals from counties conducting manual recounts.

They argued that Lewis' prior order expressly directed Harris to decide one way or the other "upon receipt of late filed corrective or supplemental returns submitted after completion of a manual recount."

Harris "continued to issue statements and take actions arbitrarily which chill, delay and prevent" counties from manually recounting the votes, the Gore team argued in legal papers.

"Rather than considering all relevant facts and circumstances in taking these actions, the Secretary has directed an unwavering effort to stop the manual counting of ballots," Gore's side argued.

"The secretary did not exercise her discretion lawfully in the manner contemplated by this court's directive," Gore attorney Dexter Douglass said.

"Her ruling on the request came only seven hours after the deadline for submission, before counties had completed their counts. She did not consider any facts and circumstances but rather cited cases to the effect that she lacked discretion," Douglass said.

He added that Harris "adamantly" insists manual recounts will be considered only in the event of a natural disaster and some other "impossibility," discounting "the real possibility" that the recounts might alter the election's outcome.

The Bush camp's counter-arguments

Florida law says the statewide vote must be certified one week after the election, and that is precisely what Harris did, said Joe Klock, Harris' lawyer.

Harris asked counties to send written explanations as to why she should consider manual recounts to comply with Lewis' order, Klock said.

Harris then compared the counties' explanations against a list of criteria drawn from prior court decisions regarding elections and found that the counties' reasons for needing extension deadlines did not hold up to case law, Klock said.

"She exercised her discretion reasonably in determining whether or not those explanations complied with the acceptable standards," Klock said. "The secretary of state took enormous care to make sure she did not violate the order."

Bush lawyer Michael Carvin argued that Harris' action was not arbitrary because she was within her legal right to enforce the 5 p.m. deadline, set by the Florida Legislature. The law says counties may be excused from meeting the deadline if there are natural disasters or mechanical problems with balloting equipment, Carvin said.

He said Gore and other plaintiffs were asking Lewis to rule that Harris abused her discretion "because she refused to excuse something the legislature itself refused to excuse."

"There was no reason for her to excuse their noncompliance" by the counties, he said. "The only excuse the counties have offered is that they are doing recounts."

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