politics isn't "arbitrary"/Harris rationale

[Michael MASINTER]

Her statement of the legal standard is simply wrong; Beckstrom, the last
word from the Florida Supreme Court, does not condition the power of a
court to set aside an election upon a showing of fraud or other
intentional wrongdoing.  But it is difficult to understand why the
standard for overturning an election should have anything to do with the
standard for considering the results of a recount completed after the
certification deadline.

It is worth noting that in a previous challenge to the strict
interpretation of the deadline, the Court treated substantial compliance
by a county as sufficient, partly to avoid the question of whether the
deadline itself violated the Florida constitution.


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Thu, 16 Nov 2000 LoAndEd at AOL.COM wrote:

> Jim Maule writes:
>
> "Several spokespersons have stated this evening that Harris provided detailed
> explanations of her reasons for rejecting the county canvassing boards to the
> boards. No one has paraphrased or quoted. Are those communications available?
> Are they subject to public disclosure or are they free from disclosure? If
> they exist and are available, it surely would be helpful to see what she
> said."
>
> I agree, and I find it remarkable that (apparently) no one has posted to the
> Net, or publicly discussed, the legal standard that Harris applied.  Her
> decision (finally) can be found attached as Exhibit B to Broward County's
> intervention motion in the pending Leon County case:
> http://199.44.225.4/courtDockets/pdf/00-2700w.pdf.
>
> Harris does not conclude that manual recounts are unreliable, or in any way
> faulty or less worthy of certification than machine votes.  (Indeed, if I'm
> not mistaken, she has agreed to certify manual recounts in several other
> counties.)  The only question she addresses is whether she should accept
> recounts that come in after Nov. 14th.  In essence, she concludes that the
> "facts and circumstances" cited by the counties for their failure to provide
> the manual recount by Nov. 14 cannot be germane to the legal standard that
> she applies.  What is that legal standard?  Here's what she says:
>
> "There are no express statutory standards by which to evaluate the facts and
> circumstances associated with a late filing of county election returns.
> Thus, I have concluded that the appropriate standards for determining whether
> to exercise discretion to accept or reject election results filed subsequent
> to the statutory deadline are those standards utilized by the Florida courts
> in deciding whether or not to uphold a challenged election."  Those
> standards, according to Harris, warrant "waiver of the statutory deadline"
> only where (i) there exists voter fraud that affects the election outcome;
> (ii) there has been substantial noncompliance with mandatory election
> procedures and there's substantial doubt whether the certified count
> expresses the "will of the voters"; or (iii) officials have been prevented
> from "timely compliance" by an act of God or extenuating circumstances beyond
> their control, such as a power outage or a mechanical machine malfunction.
>
> I've only quickly perused the document; but I believe Harris nowhere explains
> (apart from the cryptic one-word "Thus") why, or on what authority, she has
> concluded that the standards utilized by the Florida courts in deciding
> whether or not to uphold a challenged election are germane to whether she
> should certify an otherwise valid manual count that arrives after Nov. 14th.
> I will leave it to others to discuss whether the adoption of that legal
> standard, and/or its application to the circumstances in Broward and Palm
> Beach counties, is arbitrary.
>
> Marty Lederman (in my personal capacity)
>
>