Sticking to your guns

By WND Staff

Editor’s note: Today, WorldNetDaily commences the first of two excerpts from Katherine Harris’ new book, “Center of the Storm: Practicing Principled Leadership in Times of Crisis,” the first title published by WND Books, a partnership of and Thomas Nelson Publishers. In “Center of the Storm,” the former Florida secretary of state and GOP candidate for Congress, who attracted nationwide attention during the post-election chaos in 2000, combines news-making disclosures and practical lessons in a “how-I-did-it” and “you-can-too” guide for holding up amid controversy and coming out on top. Harris’ book now is available for immediate shipment only at WorldNetDaily’s online store.

Today, Harris addresses the charge that she prevented Vice President Al Gore from getting a fair shot in the Florida vote recounts. Tomorrow, she looks at how Ronald Reagan embodied a key leadership principle she seeks to share with readers.

Contrary to popular accounts, my decisions did not “cut off” all recounts. Indeed, had the Gore campaign not challenged my decision to certify the election according to the statutory schedule, Al Gore might well have obtained the statewide manual recount he sought.

By statute, the Florida legislature created two distinct phases of an election challenge: a “protest” and a “contest.” The protest phase, which would occur before Florida’s Elections Canvassing Commission certified the statewide results, permitted candidates and political parties to obtain county-specific manual recounts under particular and limited circumstances. The law did not permit me, or anyone for that matter, to declare a statewide recount during the protest phase.

The contest phase – which could not begin until after the election had been certified at the close of the protest phase – allowed any taxpayer to obtain any relief a circuit judge deemed necessary to remedy a “rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” Thus, a circuit judge could have declared a statewide recount during the contest phase, together with uniform standards for determining a legal vote. (A seldom reported fact, we requested the Florida Supreme Court to declare uniform counting standards less than one week after the election; however, the court denied our motion. By a 7-2 vote in Bush v. Gore, the United States Supreme Court declared the absence of such uniform standards to be unconstitutional.)

The Florida legislature set a strict deadline for the end of the protest phase. The law required all counties to submit certified totals to my Division of Elections by 5 p.m. on Nov. 14, 2000, which was seven days after Election Day. My decision to enforce this deadline, however, did not mean the end of all recounts. In fact, had Al Gore not fought my enforcement of that deadline (thereby enabling me to certify the election on Nov. 17, 2000, the deadline for our receipt of overseas military ballots), he could have filed his contest more than one week earlier.

Even if the circuit judge hearing the contest had refused to order a recount (as Leon County Circuit Court Judge Sander Sauls did in Gore’s contest two weeks later), the Florida Supreme Court would have issued its ruling ordering a statewide recount much earlier. (As it was, the Florida Supreme Court issued that order on Dec. 8, 2000, just four days prior to the Dec. 12, 2000, “safe harbor” deadline under federal law that the five-justice majority of the U.S. Supreme Court invoked in refusing to permit further recounts in Florida.)

In other words, had former Vice President Gore’s contest commenced according to the schedule that the legislature intended for election challenges to follow, Gore’s recount efforts may well have survived the U.S. Supreme Court’s ruling in Bush v. Gore. The Florida Supreme Court might have had more than one week, instead of just over one hour, to devise and implement a statewide recount using the uniform counting standards the U.S. Supreme Court mandated.

With such a clear path to the fair and orderly resolution of the post-election storm in place, how did we manage to take the express lane to chaos instead? Politics.

As the Washington Post reported in “Deadlock,” its book about the recount controversy, Al Gore chose the advice of his political advisers over the counsel of his lead Florida attorney, Dexter Douglass, in deciding to challenge my enforcement of the law:

Gore’s gamble was to stretch the first, “protest,” phase by seeking a later deadline for counting, thus shortening the time available for phase two, which was a lawsuit contesting the results. Some lawyers for Gore thought this strategy was a mistake. Dexter Douglass, Gore’s old Tallahassee hand, believed that they should let Katherine Harris certify the results and go straight to the lawsuit. … Better, Douglass felt, to get the whole election in front of one judge with the power to order a recount and set the standard.

As the Post duly points out, Al Gore failed to take his Florida lawyer’s advice because his political advisers feared the repercussions of a certified Bush victory. Gore might lose support for his challenge in Washington, in the media and with the public. While I do not question the legitimacy of this political calculation, it did not compel me to ignore the law. Had I agreed to the former vice president’s demands, I would have had to disregard the law to protect his short-term political viability at the expense of his long-term legal interests.

After the automatic machine recount mandated by statute was complete (which occurred due to the less than one-half of 1 percent margin between the candidates), the Gore campaign filed a protest by petitioning for manual recounts in four heavily Democratic counties only: Palm Beach, Miami-Dade, Broward and Volusia. By statute, the canvassing boards could grant such a request by ordering a sample recount that had to “include at least three precincts and at least 1 percent of the total votes cast” for the candidate who had petitioned for the recount, or on whose account a political party had made such a request. If the sample recount indicated “an error in the vote tabulation which could affect the outcome of the election,” the canvassing boards were required to choose from three options, one of which was a manual recount of all ballots cast in that county.

As these four cherry-picked counties completed their sample recounts, questions arose concerning whether the results of those sample recounts showed “an error in the vote tabulation which could affect the outcome of the election,” so as to require these counties to choose one of the three courses of action. Two counties, Broward and Palm Beach, requested advisory opinions from my Division of Elections on this matter.

Section 106.23(2) of the Florida Statutes authorizes the Division of Elections to issue opinions upon such requests and states that “the opinion, until amended or revoked, shall be binding on any person or organization who sought the opinion or with reference to whom the opinion was sought.” The division’s opinion was crystal-clear, based on the language of the protest statute. “An error in the vote tabulation” occurred when a vote counting machine failed to count a properly marked ballot. “An error in the vote tabulation” did not refer to circumstances involving voter error, in which a vote counting machine had refused to tabulate an incorrectly marked ballot.

The division’s opinion did not state that manual recounts designed to correct voter error could not occur at all. The opinion did not preclude the possibility that a court could properly order such manual recounts as part of a contest proceeding. The opinion merely indicated that manual recounts to correct voter error were not permissible during the protest phase.

U.S. Court of Appeals Judge and University of Chicago Law School Senior Lecturer Richard A. Posner, in his book on the recount controversy, “Breaking the Deadlock,” agrees with the Division of Elections’ rationale in this matter. He reasons, “Voter error is not tabulator error; the voter is not the tabulator of the vote.” He argues that the Florida Supreme Court’s “mistaken interpretation of ‘error in the vote tabulation'” drove its decision extending the deadline for counties to certify their final results from Nov. 14 to Nov. 26.

While the Florida Supreme Court held that an irreconcilable conflict existed between the protest statute’s Nov. 14 deadline and its provision for manual recounts (which, presumably, would take longer), Judge Posner states,

If, as the election officials ruled, [“error in the vote tabulation”] refers only to a breakdown of the tabulating process – [meaning that] unspoiled ballots have not been counted – the hand recount should not take much time at all. It will be obvious at a glance which candidate received the vote on those ballots. Judgment, interpretation, disagreement, objection, challenge and resulting delay come into play only when, because the ballot was spoiled, the voter’s intention is an enigma.

Judge Posner continues,

The only thing that could make the seven-day period for the submission of a county’s votes unreasonably short (other than extraordinary circumstances such as fraud or some natural disaster) would be a desire to recover spoiled ballots as votes, a process that is time-consuming because of its subjectivity. In the exercise of her discretion to interpret and apply the statute, the secretary of state was entitled to conclude that wanting to recover votes from ballots spoiled by the voter was not a proper reason for the extension of the statutory deadline – especially in a presidential election, in which delay in certifying the results of the election could cause chaos.

Ultimately, our opinion regarding the type of recounts Florida law permitted diverges from Judge Posner’s thesis; we disagree with his argument that the Florida Supreme Court did not have the authority to order a statewide recount to remedy voter error, even in the contest proceeding. Nevertheless, his thorough, incisive reasoning provides welcome support for the Division of Elections’ advisory opinion, which we have always known to be correct, but which has been the subject of misplaced and misinformed scorn and ridicule.

When the four-justice majority of the Florida Supreme Court ordered a belated statewide recount on Dec. 8 (without declaring uniform counting standards, which we had requested the court to declare weeks earlier in a motion that the court denied), they capped a stunning month-long display of judicial gymnastics.

Our system of governance is based upon a balance of power amongst our three branches of government: the executive, the legislative and the judicial. By law these branches are mandated to perform separate duties. The executive branch administers the law; the legislative branch writes the law; and the judicial branch interprets the law. When the four-justice majority of the Supreme Court joined their three dissenting colleagues to issue the court’s first ruling, which extended the deadline for submission of county returns and delayed certification until Nov. 26 (thereby writing new law, not interpreting the law), they abandoned traditional judicial decorum, chiding me for being too much of a stickler about the law – as if this trait somehow constituted a defect in character. They said, “The will of the people, not a hyper-technical reliance on statutory provisions, should be our guiding principle in election cases.” They ruled that certification constituted such a significant event, with such momentous implications for Al Gore’s ability to obtain a “full and fair” (for only four Democratic-majority counties) manual recount, that they had no choice but to legislate from the bench and change the law.

Once this ruling had transformed the legislature’s orderly process for settling election disputes into a chaotic free-for-all, this four-justice majority of the Florida Supreme Court reversed themselves, deciding in their Dec. 8 decision that certification meant nothing. They added uncertified recount totals that Palm Beach County submitted after the new deadline the court had created to the totals the Elections Canvassing Commission certified on Nov. 26. They added partial recount returns to the certified total that Miami-Dade County never even submitted.

When the damage had already been done to the cause of an orderly, fair statewide recount, the four-justice majority finally agreed with what my office had told them just before they eviscerated the Nov. 14 deadline: that certification operated merely as a procedural milepost between the protest and contest phases of a cohesive legislative plan to settle election disputes. Certification had no impact on any person’s right to pursue a manual recount of any sort or scope.

Tomorrow: How Ronald Reagan embodied a key leadership principle, sticking to your guns.

Special offer:

“Center of the Storm” will not be released to retailers until Oct. 8, but WND readers can get their copies now at the WorldNetDaily online store, nearly a full month before the book is generally available. Harris has also agreed to offer signed copies of the book exclusively for WorldNetDaily readers. Order Katherine Harris’ book now!