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Law Professor Michael Dorf On The Latest Legal Rulings Surrounding Florida Ballot Recounts

November 17, 2000

(FindLaw) -- Law professor Michael Dorf joined Law Chat on Friday, November 17, to discuss a Florida trial court judge's decision to uphold the secretary of state's decision to exclude recounts of presidential ballots in some Florida counties. Dorf is vice dean and professor of law at Columbia University School of Law, where he teaches constitutional law and constitutional interpretation. Law Chat is produced with FindLaw. provided a typist for Dorf. The following is an edited transcript of the chat.

CNN Moderator: What happens now that a Florida circuit court judge has upheld the secretary of state's decision to exclude the recounts still going on? How difficult will it be for the Democrats to win in the Florida Supreme Court?

Michael Dorf: The next likely step is that Gore appeals to the Florida Supreme Court. The likelihood of success is hard to gauge. On the one hand, the justices of the Florida Supreme Court were appointed by Democratic governors. On the other hand, the circuit judge who just ruled for Secretary of State Katherine Harris is also a Democrat. Hopefully, people will see this as showing that the judges can be a bit less partisan than the campaigns. On the merits, this is a hard case. The Democrats argue that the fact that Florida law allows a manual recount means the secretary of state should always exercise her discretion to allow such a recount to finish. The Republicans argue that Florida law requires the courts to grant substantial deference to the secretary of state.

Question from duffer: Assuming that in certifying the election results the Florida secretary of state ignores all this later hand-counting. Is Gore's burden of proof in court going to be that she abused her discretion (not just that she acted unreasonably)? And isn't that a steep burden?

Michael Dorf: That's basically correct. As a strict technical matter, the burden is to show that Harris's decision was "arbitrary." This is the standard for judicial review of agency action in most states. It's roughly the same as finding an "abuse of discretion." The best shot the Democrats have is to say that Harris applied the wrong legal standard. Typically, a court will say that application of the wrong legal standard is a per se abuse of discretion.

Question from alan: What happens if Florida popular vote ends in a certified tie?

Michael Dorf: Interesting question. Many states authorize decision by lot in those circumstances. For example, in New Mexico, a recent mayoral election was decided by a hand of stud poker. I don't actually know what Florida law provides with respect to a tie -- but it seems extremely unlikely given the size of the electorate.

Probably not.

Question from WeThePeople: Do you think this will end up at the U.S. Supreme Court?

Michael Dorf: Right now the only issue of federal law that is being pressed seriously is the Republicans' claim in federal court that hand recounting is unconstitutional. That claim is not likely to succeed (although the Republicans may not need it in order to win). Assuming that the Eleventh Circuit (the federal appeals court that covers Florida rules against the Bush campaign, the final judicial decision will be up to the Florida Supreme Court in reviewing this morning's decision about whether Harris abused her discretion.

CNN Moderator: When is it likely that the Florida Supreme Court will make a ruling on this matter?

Michael Dorf: Hard to know. The Gore campaign probably wants a ruling today or tomorrow before Harris certifies the result. Even if the Florida Supreme Court waits until next week, it could undo the certification, but as a political matter, it favors Bush to have a victory certified.

From Gail: Hello. Is it possible that the law would deny persons a vote? Is that constitutional?

Michael Dorf: In an absolute sense, of course it's unconstitutional. What we're learning from this election, however, is that there may be a difference between casting a vote and having that vote counted effectively. The competing perspectives of the two campaigns are as follows: The Bush campaign says that as long as the procedure used for counting votes is likely, in advance, to count nearly every vote, there's no denial of the right to vote if it turns out the count misses a few. The Gore campaign says that the Bush position works in elections that are decided by a margin of a percentage point or more, but that where the election is as close as this one, using somewhat inaccurate means (like machine-read punch hole cards) denies individual votes. Of those perspectives have. Oops, sorry. What I started to say was that there's something to each of those arguments.

Question from Mike: Has anyone addressed the statement that Kathy Harris made prior to the request to hand recount? She instructed the counties not to do a hand recount. Has anyone pointed this out? Doesn't this disqualify her opinion as biased?

Michael Dorf: The Democrats make two arguments based on that statement. First, as the questioner suggests, the Democrats use it (along with her known role in the Bush campaign) as indication of bias. Second, they argue that her instructions against a hand count contributed to the delay in the hand count, so that it is unfair for her to then use that delay as a basis for not extending the deadline.

Question from chadette: Doesn't it seem as though the courts are putting the decisions back in the hands of the local election authorities? Is this the more likely scenario?

Michael Dorf: I've given up predicting what's more likely. Here we have a conflict between different state officials. The county election officials have the authority to conduct a manual recount. The Secretary of State has the authority (at least until the Florida Supreme Court says otherwise) to reject that recount. It's difficult to reconcile these two positions, which is why we won't have a definitive answer until the Florida Supreme Court reviews today's decision.

Question from SirPlus: If two statutes conflict as in this situation, how do we get resolution?

Michael Dorf: This is a more frequent occurrence than you might think. The job of the Florida Supreme Court is to try to reconcile the two statutes. One way to do that would be to say that the Florida Secretary of State abused her discretion. The other way to reconcile would be to say she did not, that she can effectively overrule the County Commissioners. Potentially.

Question from bryansells: Does the Secretary of State's decision to reject the results of a manual recount raise any federal constitutional law issues?

Michael Dorf: There is some limited authority for saying that it is a denial of the right to vote for state officials not to conduct manual recounts in close elections.

Nevertheless, I think it's extremely unlikely that a court would find that Harris was within her legal authority under state law but that she violated the federal Constitution.

Question from mooman: Do you think you can give a statistical estimate about the chances of Gore's attempt at the U.S. Supreme Court?

Michael Dorf: Unless, that is, the 11th Circuit rules for Bush. If that happens, I think it's quite likely the Supreme Court would hear the case. But again, all of this is likely to be moot in light of the fact that the state law issues seem to be dominant here.

Question from bryansells: Do you agree with Judge Labarga that a revote in Palm Beach may be unconstitutional because the constitution provides for a presidential election only once every four years?

Michael Dorf: This strikes me as a bit of a stretch. If there had been a hurricane, I think we would all say that it's permissible to have a delayed vote. Or, if all of the ballots had been destroyed in a fire before they were counted, again, it would seem fine to have a revote. Of course, one can draw a line between acts of God and mistabulated votes or badly designed ballots. But the question would then be one of where to draw the line, not whether a revote is permissible at all.

Question from pro-choice: Can a certified vote total, after Saturday, be ruled on by the courts?

Michael Dorf: Yes. The interesting question is what would happen then. In 1876, in the Hayes-Tilden presidential election, Florida and other states each sent more than one set of electors to the Electoral College. It's possible that the Florida Supreme Court would order Harris to re-certify a different result (Gore instead of Bush) but that she would refuse. She might then be held in contempt, or the Florida legislature could send its own electors. In the end, the question of what to do would fall to Congress.

Chat Moderator: Professor Dorf, do you have any final thoughts to share with us today?

Michael Dorf: My final thought for the day is this: I don't think there is a person in America who can honestly say that if the positions were reversed, the Democrats and Republicans wouldn't be making exactly the opposite arguments. Some people take this as a sign of cynicism. I don't. I take this as a sign that this was an extremely close election and that there are plausible arguments on both sides. We are not in a constitutional crisis. An interesting situation, yes, but not a crisis.