politics isn't "arbitrary"/Harris rationale
maule at LAW.VILLANOVA.EDU
Fri Nov 17 09:24:02 PST 2000
Last evening one of the networks interviewed a Republican who requested a recount in the primary and whose request was denied on the grounds that she (the requesting candidate) did not allege (or prove) fraud, irregularities, or acts of God. I cannot remember the county but it may have been Palm Beach.
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
>>> LoAndEd at AOL.COM 11/16/00 10:43PM >>>
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
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:
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)
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