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While the political pressure mounts for both Vice President Al Gore and Gov. George W. Bush to end their legal fight, and allow a new president to be anointed by week’s end, the legal fight in Florida escalated Monday with hearings in three counties and more possible today. A few hours after U.S. District Judge Donald Middlebrooks in Miami denied a request by the Bush campaign to stop the manual recounting of votes, a state circuit court judge in Palm Beach County recused himself from hearing six consolided lawswuits filed by disgruntled voters who claim they were denied their right to vote and want the election redone in Palm Beach County. In Tallahasee, the Gore camp went to court to extend the Tuesday 5 p.m. deadline for counties to certify their recount totals. At 7 p.m. Monday local time, that issue had not been resolved. Judge Stephen Rapp recused himself in a packed courtroom after a strongly worded motion filed by Henry Handler, who represents plaintiffs in one of the six suits, accused the judge of bias against Vice President Gore. The judge was accused of, among other things, stating that “anyone who made the mistake of voting for someone they did not intend to vote for was stupid.” The judge denied the accusation but recused himself nonetheless. The case was assigned to state Circuit Court Judge Catherine Brunson. A hearing is scheduled for Tuesday afternoon in her court. THE SIX SUITS On Tuesday, unless the case is continued, Judge Brunson is scheduled to decide whether a temporary preliminary injunction prohibiting the Palm Beach County Elections Commission from certifying the final results of the election should be extended or dissolved. Its’ unclear when she’ll take up the issues at the heart of the six lawsuits: Was the Palm Beach County presidential ballot illegal? And if it was, did it have enough of a impact on the election to warrant a court taking unprecedented action — ordering a revote in Palm Beach county. Most experts believe such a thing is highly unlikely. Election law experts and lawyers on both sides of the issue say they know of no case in Florida or elsewhere where a judge has ordered a partial new vote in a federal election not to mention a presidential election. These lawsuits were filed by angry voters not connected to the Gore-Lieberman camp. And not only are these plaintiffs angry and determined, they have substantial moral support from the thousands of other Palm Beach County voters who claim they also were disenfranchised. Take Florence Zoltowsky, one such plaintiff who says she will not drop her suit unless she is allowed to vote again — even if Vice President Gore, whom she intended to vote for, is prepared to concede. Sitting in the kitchen of her Boynton Beach, Fla., condo, she says: “Gore can concede. He can do what he wants. I am not [acting] with Gore or with Bush. I want my vote to be counted. Period.” The 70-year-old Zoltowsky and her husband, Alex, claim they inadvertently voted for Reform Party candidate Pat Buchanan when they had intended to vote for Gore. Both Holocaust survivors, they fighting for their right to vote and staying with it is nothing compared with what they did to survive in life. Ms. Zoltowsky spent two years in an underground cave in her native Poland hiding from the Nazis. “I wore the same nightie for 26 months,” she says. Mr. Zoltowsky, 75, survived a Polish concentration camp, he says, because, the Nazis did not know he was Jewish. They both hold their right to vote sacred. “Because I never had that luxury,” says Ms. Zoltowsky. “People here take it for granted and I want to be counted.” Of course, it will be up to a state judge to decide whether to sustain the Zoltowskys’ suit and others like it. With the nation watching, the courts are expected to deal with the cases expeditiously. Whether or not the injunction stays in place in the consolidated matter, election law experts and lawyers on both sides of the issue say, they know of no case in Florida, or elsewhere, in which a judge has ordered a partial new vote in a national election, let alone a presidential election And most, though not all, of the lawyers, say it is unlikely to happen here. However, Patrick W. Lawlor, of Deerfield Beach, Fla.’s Young & Lawlor, who represents the Zoltowskys and their daughter, Sharon Elkin, in the suit, says he believes he has a reasonable chance of succeeding. He points to a 1974 Florida Court of Appeal decision, Nelson v. Robinson, 301 So. 2d 508, in which five losing primary candidates in Pinellas County sought new elections because they claimed an overcrowded and confusing ballot cost them the election. After six days of testimony, the trial court voided the election and ordered new elections. But the appellate court reversed and upheld the election. “In our view the trial court misconstrued the law as to the test to be applied,” it said. “It is not sufficient that a showing is made of a mere reasonable possibility that the results of an election could have been changed by irregularities,” the court stated. “Rather, there must be a showing of a reasonable probability that the results of said election would have been changed except for such irregularities. That error of itself would require a reversal hereof.” But the court found no such reasonable probability. “Forty-eight assorted voters, poll workers and clerks, thirty-one of them called by plaintiffs/appellees, testified,” the court stated. “Yet no finding was made that even a single voter was prevented from exercising this free choice, although, concededly, it was found that several voters were “confused.” But mere confusion does not amount to an impediment to the voters.” Lawlor believes this reasoning helps his case. He says that the factual scenario for his clients — and the thousands of others who say they unintentionally voted for the wrong candidate — is far beyond mere confusion. And, he says, there is a “reasonable probability” the ballot problems, involving the confusing design of the so-called “butterfly ballot,” caused an error. The case most often cited by experts in the past few days as being most relevant to the current legal fight is Beckstrom v. Volusia County, 707 So. 2d 720, a 1998 Florida Supreme Court decision that affirmed a lower court’s ruling validating the results of a sheriff’s election, despite there being some noncompliance with state election laws. A non-jury trial was held for eight days. The judge ruled that the Canvassing Board acted with “gross negligence,” but did not find fraud in the absentee ballot process. In agreeing that the election should not be voided, the Florida Supreme Court stated: “We stress, however, that we are not holding that a court lacks authority to void an election if the court has found substantial unintentional failure to comply with statutory election procedures. To the contrary, if a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court in an election contest brought pursuant to section 102.168 � is to void the contested election even in the absence of fraud or intentional wrongdoing.” Terence Anderson, a University of Miami Law School professor who is an expert on Florida election law, says he believes the consensus is that the suits have merit under the current law. “If the court determines the butterfly ballot fails to comply with the statutory requirement for ballots, then it probably is not going to be very hard to provide enough evidence to make a factual determination that a reasonable probability exists” that the will of the people to vote was also violated, Anderson says. He says there is precedent for ordering a new election in Florida, although it comes from an unreported case involving the 1993 mayoral election in Hialeah, Fla. In Juri v. Canvassing Board of Hialeah, No. 93-21848, a losing candidate, claiming there was fraud in the absentee ballot process, sued in Dade County Circuit Court to have the ballots discarded and to have himself declared the winner. According to a discussion of the case in an April 2000 University of Miami Law Review article, the trial court heard testimony from 32 witnesses and concluded fraud infected the process. According to the article, the court, believing it was inappropriate to invalidate just the absentee ballot portion of the vote, ordered an entirely new election. But Anderson says that ordering a new mayoral election is one thing, while ordering a new election for some voters in a presidential election — something never before done — is another. “We are in uncharted waters,” he said. “I think it is highly unlikely [a court would order a new election]. But is it possible? Yes.” The chief lawyer for the Bush campaign, Greenberg Traurig’s Barry Richard, a registered Democrat who says he is non-partisan in the case, says he is familiar with the law on the issue and is confident that the suits have no merit. “I don’t think there is any ground for the election to be reheld,” he says. “I am fully familiar with the rule of law and case holdings as to what’s needed to overturn an election,” he says, from Tallahassee, where he is based. “You need to show there’s substantial or widespread either fraud or a systemic problem that the will of the people was frustrated, and the number of voters effected must be sufficient to change the outcome. It’s not sufficient that they were confused.” He says he has examined the ballot closely and does not believe there is anything wrong with it. “In this case the arrow only points to the arrow you have to punch,” he says. However voters contend the ballot was misleading because although the Gore-Lieberman names appear directly beneath the Bush-Cheney names, the holes a voter was to punch to vote were not in the same sequence. The sequence of the holes were Bush, Buchanan, Gore. Voters claim the ambiguous “butterfly” ballot was illegal because of two things under Florida statute 101.151: First, that the punch hole for voting was not to the right for all the candidates, as required under the law. In the twin-page butterfly format, Buchanan’s name appeared on a second page, with the hole punch for him to the left of his name. Second, the law states that the names of the presidential candidates must be in the order in which candidates in their respective parties finished in the most recent Florida gubernatorial election. While the Bush, Gore sequence was correct, their hole punches were not because Buchanan’s came in between. But Richard says all this may be irrelevant because of the U.S. Supreme Court case Foster v. Love, 522 U.S. 67 (1997). In Foster, the court, in a decision written by Justice David Souter, invalidated a Louisiana state law that had called for the state’s congressmen to be elected in an “open primary” in October of a federal election year. The court said this violated federal law because the U.S. Constitution’s Elections Clause grants Congress alone the power to determine when federal elections are to be held. “Thus it is well settled that the Election’s Clause grants Congress �the power to override state regulations’ by establishing uniform rules for federal elections, binding on the states,” Justice Souter wrote. While this case only dealt with congressional elections, Richard says, the case stands for the principle that by statute Congress mandates that the presidential election should be held once every four years — the second Tuesday of November. “The U.S. Supreme Court has said you can’t elect the president on any other day,” he says. The court states specifically that Title 2 U.S.C. Sec. 7, which applies to electing U.S. representative for Congress, 2 U.S.C. Sec. 1, which sets forth the same rule for electing Senators, and 3 U.S.C. Sec. 1, which sets forth the rules “for selecting presidential electors, mandates holding all elections for Congress and the Presidency on a single day throughout the Union.” The court continued: “By establishing a particular day as �the day’ on which these actions must take place, the statutes simply regulate the time of the election, a matter on which the Constitution explicitly gives Congress the final say.” Does this case give plaintiffs and Gore supporters wiggle room? A footnote quotes a senator from the legislative history stating “�there can be no failure to elect except in those states in which a majority of all votes is necessary to elect a member.” Run-off elections are allowed, the Supreme Court says. Souter wrote: “While true there is room for argument about just what may constitute the final act of selection within the meaning of the law, our decision does not turn on any meaning of the law.” One last case often cited in discussions the past week concerns the highly publicized 1997 mayoral election in Miami. It is thought to be somewhat off point because of the pervasive fraud discovered. After a bench trial, the court declared the mayoral election void and ordered a new trial. A state appeals court overruled that decision and a federal court upheld that ruling. A federal judge wrote: “Federal courts rarely meddle with state election disputes. This case is no exception.” Putting all the case law aside, the lawyers will have to go to court and argue the suits before a judge. On Tuesday, when the judge in Palm Beach County hears arguments concerning the temporary preliminary injunction, the plaintiffs’ lawyer, Gary Farmer, plans to call witnesses, including his clients and a political scientist to discuss the statistical anomaly of the number of votes received by Pat Buchanan in Palm Beach County. “I feel I am trying to right a wrong,” says Farmer, of Fort Lauderdale’s Gillespie, Goldman, Kronengold & Farmer. “I certainly don’t want to do anything that’s going to throw this country into disarray or anarchy, but I do think the right to vote is a fundamental right and in order to honor that right, it has to be a fair vote. I don’t think the ballot that was utilized allowed a fair vote.” Meanwhile, the Bush campaign’s Richard says he will file a motion this week to move the cases to Tallahassee in Leon County. He says under state law, all lawsuits that name state agencies as defendants, as the current ones do, must be filed in that jurisdiction.

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