Lawyers take over in battle for Florida

The Attorneys

Never mind Gore vs Bush. The real point of contention in the great electoral battle of Florida may well be turning into Horowitz vs LePore. Or, for that matter, Fladell vs Palm Beach. Whatever it is, it is no longer just a contest between two candidates. It is a battle of duelling legal briefs.

Never mind Gore vs Bush. The real point of contention in the great electoral battle of Florida may well be turning into Horowitz vs LePore. Or, for that matter, Fladell vs Palm Beach. Whatever it is, it is no longer just a contest between two candidates. It is a battle of duelling legal briefs.

With the outcome of the presidential race hanging by a thread (or, as we will all soon have to learn to say, a "chad" - the name of the piece of cardboard that may or may not detach when voters punch their ballot cards), political consultants for the two main parties are making way for the lawyers.

The required breakfast-time reading these days is not so much The New York Times as Section 102 of the Florida Electors and Elections Code - a dry, distinctly unamusing document, but one whose interpretation will almost certainly determine who becomes the President of the United States.

The legal shenanigans began as soon as election day was over, with a flurry of private suits filed by Democrats in Palm Beach County who believed their voting intentions were traduced by a confusing ballot paper. Today, it will be the Bush campaign that will appear in federal court to urge a halt to the manual recounts requested by the Gore camp in four Democrat-leaning counties in the south of the state. And that may not be the end of it - Al Gore's campaign manager, William Daley, has talked of seeing "the legal process" through, whatever that takes.

Since the gap between the candidates is so minuscule (the latest estimate puts Mr Bush fewer than 300 votes ahead, out of a statewide total of just under 6 million), and the mechanics of ballot-counting so manifestly imprecise, it will almost certainly be impossible to come up with an objective final count that satisfies everybody. Hence the knee-jerk, one might say typically American, response by both campaign teams - if in doubt, call a lawyer.

"This is so emblematic of our time: we see the legal process overwhelming the political process," Thomas E Mann, of the Brookings Institute - a Washington think-tank, commented in the Los Angeles Times yesterday. It was turning into a high-stakes poker game, with each side upping the ante at every turn. "Once you get into that game seriously, it will take over. It's like an arms race."

This is a country with a well-documented weakness for set-piece legal showdowns that drag on for months - think of the O J Simpson trial, or the interminable impeachment battle over Monica Lewinsky. In this case, however, the insatiable appetite for legal wrangling will at some point stretch public tolerance to breaking point. The big unanswered question is where that breaking point will come: in other words, when the recounts and lawsuits start to do the trailing candidate (for now, Mr Gore) more harm than good.

A tentative emerging consensus is that the cut-off point will be Friday - the deadline for counting overseas absentee ballots and, under normal circumstances, the day the election would be deemed formally over.

With manual recounts approved in two Democratleaning counties and others being considered in two more, the Gore camp is hoping to pick up enough votes to be ahead by the end of the week.

The question is, what the Republicans will do about it. This morning they are praying that a federal judge, Donald M Middlebrooks, will save them by invalidating the manual recounts. But that is a long shot, since Florida law explicitly permits such recounts and a federal judge is going to be reluctant to interfere in state law. Moreover, Judge Middlebrooks was appointed by President Bill Clinton and is unlikely to alienate Democrats unless he absolutely has to.

The next possible manoeuvre by the Bush camp is to request manual recounts in Republican-leaning counties. There are two problems here. First, the deadline for such requests has passed in all but 10 of Florida's 67 counties. And second, the punch cards that have caused such controversy in Democrat-leaning south Florida are not used in much of the north. There, voters are asked to fill a circle next to a candidate's name. Election experts say these ballots are much easier for machines to read, and so are likely to result in far fewer missed votes.

The last resort for both camps is to create so much legal confusion as to force the election to be settled in the courts, whatever public opinion says. Both sides are laying the ground for such a scenario - the Democrats threatening to contest the legality of the ballot in Palm Beach County, and possibly push for a fresh election there; and the Republicans doing their best to point out inconsistencies in electoral rules from one county to another - the implication being that no recount is ever going to be fairer than the original result in favour of Mr Bush.