Tallahassee, FL -
A Florida judge ruled Tuesday that state officials may enforce a 5 PM deadline for certifying votes in the fiercely contested presidential election, but also held that Secretary of State Katherine Harris may accept updated tallies submitted later.
``The secretary of state may ignore such late-filed returns, but may not do so arbitrarily, rather only by the proper exercise of discretion,'' ruled Leon County Circuit Judge Terry Lewis.
Democrats swiftly seized on that point to say they had gotten what they wanted — an opinion that made it clear there was room for continuing the count after the deadline set by Mrs. Harris.
The Florida secretary of state, a Republican and supporter of George W. Bush, has said she interprets the law as requiring certification of county tallies by 5 PM EST.
``In the law when somebody has discretion they have to exercise that discretion reasonably,'' said David Boies, the newest addition to Gore's legal team. He held out the possibility the vice president's campaign might file suit if it was dissatisfied with her disposition of any vote tallies submitted after the deadline.
Officials in Volusia County, where a hand recount was nearing an end, approved an appeal of Terry's ruling, and said they needed extra time.
In his ruling, Lewis said, ``Just as the secretary of state cannot decide ahead of time what late returns should or should not be ignored, it would not be proper for me to do so by injunction.
``I can lawfully direct the secretary to properly exercise her discretion in making a decision on the returns, but I cannot enjoin the secretary to make a particular decision, nor can I rewrite the statute, which by its plain meaning, mandates the filing of returns by the canvassing board by 5 PM on November 14th.
The ruling by the Leon County circuit judge marked the latest turn in a presidential election that remains unsettled one full week after the polls closed.
Harris, citing state law, announced on Monday she would not accept any county vote totals after 5 PMTuesday.
Lawyers for Gore, who has pushed the recount effort, and some counties appealed.
In his order, the judge said, ``I find that the county canvassing boards must certify and file what election returns they have by the statutory deadline of 5 PM on November 14, 2000, with due notification to the secretary of state of any pending manual recounts, and thereafter file supplemental or corrective returns.
``The secretary of state may ignore such late-filed returns but may not do so arbitrarily, rather only by the proper exercise of discretion after consideration of all appropriate facts and circumstances.''
The ruling came as a recount proceeded — in varying stages — in three counties. Volusia was nearing an end to it recanvass, but a spokesman said time beyond the deadline was needed.
The recount in Palm Beach County was on hold pending resolution of conflicting legal advice.
Miami-Dade County officials said intended to begin a partial recount later in the day.
Clay Roberts, director of the division of elections, issued an advisory opinion Tuesday to Palm Beach County, saying it does not have a right to conduct a hand recount of ballots.
``Unless the discrepancy between the number of votes determined by the tabulation system and by the manual recount of four precincts is caused by incorrect election parameters or software errors, the county canvassing board is not authorized to manually recount ballots for the entire county,'' Roberts said.
Attorney General Robert Butterworth immediately issued a conflicting opinion, saying the county has a right to hand count ballots.
``The (county) canvassing board has the authority to determine that the voter's intention is clearly expressed,'' Butterworth said.
The division of elections is under the office of the Republican secretary of state, who sent a letter to counties Monday saying each faced a 5 PM Tuesday deadline to report results.
Harris and Butterworth are both members of the Florida Cabinet, which also includes Gov. Jeb Bush, brother of George W. Bush. Each is elected statewide with equal standing.
The conflict over the Palm Beach count was likely to be settled in court.
``We've got two opinions, and a judge needs to tell us how to proceed,'' said County Judge Charles Burton, canvassing board chairman in Palm Beach County.
A senior Gore strategist said the board's decision to delay the recount would be challenged immediately in Circuit Court, along with the Florida secretary of state's ruling on which that decision was based.
Palm Beach County is a Democratic stronghold where voters first complained that they were confused by their ballots. Their outcry unleashed a political tide that froze Florida's 25 electoral votes and left Americans waiting to see who their 43rd president will be.
With the deadline fast approaching, judges in three Florida cities were deciding the fate of recounted votes.
In Volusia County, where workers began hand counting 184,019 ballots Sunday, officials said they would be unable to finish by 5 PM. The county was prepared to send partial results to the state.