With Anguish, Judge Rejects Palm Beach Revote

WEST PALM BEACH, Fla. —  In a self-proclaimed “unprecedented legal decision,” a county judge ruled Monday that he isn’t empowered to order a new presidential election in Palm Beach County even though thousands of residents say their votes were nullified by a confounding “butterfly ballot.”

Democrats immediately appealed the ruling by Circuit Judge Jorge Labarga to Florida’s 4th District Court of Appeal. Lawyers on both sides said the move may set the stage for another legal battle that could go to the state Supreme Court and, perhaps, the U.S. Supreme Court.

A court-ordered revote in Palm Beach County was considered a legal longshot. Neither the state Democratic Party nor Vice President Al Gore’s campaign joined the voters who brought the lawsuit.

Still, Republicans hailed the ruling as an important win for their presidential candidate, George W. Bush.

“It’s significant,” Bush advisor Tucker Eskew said in West Palm Beach, where a manual recount of the county’s 462,000 votes is underway. “While every voter’s concerns are serious, no legal scholar I know took seriously the prospect for a new revote in a county.”

No Precedent for Presidency

In his 17-page ruling, Labarga concluded that he had no authority to order a new election for president. While legal precedent for ordering new elections is “legion” in other races, Labarga wrote that none of those cases addressed the country’s only national election--for the presidency.

Voters who argue that they were disenfranchised by the county election “cite no case law authority in the history of our nation, nor can the court find any, where a revote or new election was permitted in a presidential race,” Labarga added.

F. Gregory Barnhart, a West Palm Beach attorney who represents the Florida Democratic Party, said the judge “was noticeably reticent to undertake something as dramatic as a revote. But I think the law is clear enough that when there are unlawful election practices . . . that there is a remedy” for a new election.

“And the higher you go up the ladder as far as elected office, the more important that remedy becomes. If you have that remedy for the election for dogcatcher, but not for president, what good is it to have it?”

Labarga, a Cuban emigre, was clearly anguished by the decision and torn by conflicting allegiances.

He was a registered Republican in the past but now is registered as an independent. He began the hearing by saying he could not recall whether he ever contributed money to the campaigns of George W. Bush or his brother, Florida Gov. Jeb Bush.

Labarga said his parents brought him to the United States as a child in the 1960s largely to win the right to vote. He told attorneys last week that if he was forced to reject the voters’ argument, it would be the hardest decision of his career, and he reiterated that in his ruling.

“The right to vote freely for the candidate of one’s choice is the essence of a democratic society, and any restrictions of that right strike at the heart of representative government,” the judge wrote.

Labarga said he was effectively siding with federal law over state law, though states generally have a mandate to run elections.

The Palm Beach County voters had argued that a state law gives Labarga the right to order a new election. The law says a judge “may fashion such orders as he or she deems necessary . . . to prevent or correct any alleged wrong.”

But that law, Labarga argued, “does not coincide” with federal law or the U.S. Constitution. He said that federal law dictates when an election should be held and that the Constitution says the presidential election must be held on a single day in all states.

Trumped by the Constitution

“He’s right on point,” said Robert Montgomery, a prominent West Palm Beach trial attorney who represents Theresa LePore, the county’s embattled supervisor of elections. “The Constitution trumps state law.”

LePore decided to print the county’s ballot using large type to help elderly voters with poor eyesight, but the size of the print sent the names of presidential candidates tumbling onto two pages.

That created the “butterfly ballot”--and mass confusion--that Democrats say deprived Gore of thousands of votes. Enough votes were invalidated or mistakenly cast for Reform Party candidate Pat Buchanan, they argue, that the ballot effectively cost Gore Florida’s 25 electoral votes, and therefore the White House.

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What Counts, What Doesn’t

Florida counties have different standards for counting votes:

BROWARD COUNTY

All ballots with dimpled chads or just one corner of the chad detached are set aside to be reviewed by the canvassing board after all other ballots are counted. The board originally said it would not consider votes with anything less than two corners of the chad detached. However, it reversed its decision after lawyers said that standard may not hold up in court.

PALM BEACH COUNTY

In earlier and partial recounts, the board counted any vote where any corner of a chad was punched. Now, two or three corners of the chad must be punched for the vote to count. If a chad is “dimpled”--indented but not punched out--it is reviewed by the canvassing board. Most dimpled ballots have not counted as votes.

MIAMI-DADE COUNTY

Counting teams are instructed to look only at ballots that have clearly punched holes or chads that have at least two corners poked out. Any ballot that does not fit those criteria is passed to the canvassing board for review. The board said it will accept those ballots if the voter’s intent is clear.

VOLUSIA COUNTY

Volusia County used a ballot where the voter was supposed to fill in an oval next to the candidate’s name--much like a standardized test. In the manual recount, any vote where the intention was clear to the counters within 15 seconds--and agreed upon by the Republican and Democratic observers working with each team--was counted.

Sources: Associated Press and Times staff reports