he Supreme Court last night issued a decision functionally extending the deadline for recounts until this Sunday. While the decision was not surprising, it was disappointing that the court chose to interpose an arbitrary deadline of its own in place of the statutory deadline. Given the very real risks of fraud and manipulation, Secretary of State Harris may still be required to disallow the counts — an option which this decision does not foreclose. Additionally, further judicial manipulation of the standards could draw the legislature in to settle the question, an option that seems more possible with each passing day.

The most troubling feature of the Supreme Court's decision is that the deadline of the 26th is more arbitrary and capricious than the statutory deadline adhered to by Secretary of State Harris. Harris's deadline had the virtue of having been created by legislative consensus prior to the election, and therefore was less likely the product of post hoc rationalizations in support of one candidate or another.

While a deadline created by judicial fiat after the fact could be more tailored to the particulars of this election, this decision fails to be adequate to those particulars. The court is concerned with preserving the dueling interests of the recount and the ability of a losing candidate to challenge the election once it is finalized. Because the court selected the 26th, however, the counties will not be able to finish their counts. According to Dade County's previous assessments, they will not be able to finish their recount. One Democratic lawyer has said that Dade will be able to finish by Sunday, seven days after they started; this is a telling admission, because it completely undercuts the arguments made in court that large counties could not complete a recount in seven days. The other counties may also have trouble completing their counts, particularly in light of the holiday.

As for the need for judicial contest after the election, such a contest would not traditionally be the sort of quick oral arguments to which we have grown accustomed over the past two weeks, but an actual trial on the facts. Evidence will be submitted, witnesses will be subpoenaed, and ballots will be examined. All these things take time, and a lot of it. Once the trial is done, you can be assured of appeals. Given this process, the deadline established by statute and enforced by Harris is in fact more reasonably tailored to assure that the competing interests are protected than the arbitrary deadline established by the court.

There are still two questions that the Supreme Court's decision leaves open: First, what happens if a county completes part, but not all, of the recount, and second, must dimples qualify as votes? Given this ambiguity, the secretary of state should use her discretion to disallow any county's vote count that is not complete. It is bad enough that the current hand recounts create different standards throughout the state, but allowing partial county recounts would allow different standards for votes within a county. This is particularly dangerous given that election boards could seek to manipulate the result by recounting Democratic precincts first, leaving Republican precincts to be recounted "if there is time." Because of the risk of bias, this simply cannot be allowed.

Second, while Gore supporters have already argued that the language of the court's decision regarding voter "intent" requires that dimples be counted, in actuality it does nothing of the sort. Palm Beach County, for example, had a longstanding policy not to permit dimples because they do not evidence voter intent. Allowing dimples would open a Pandora's box, and for reasons I have mentioned in a previous article ("The War of the Dimples") do not provide sufficient evidence of voter intent. Accordingly, if counties insist on including dimples, Harris should exercise her discretion to disregard their recount on that basis — keeping in mind that the Supreme Court's opinion does not prohibit her from exercising her reasonable discretion with regard to questions such as this which were not decided by the court.

There is of course a chance that the Supreme Court's decision will backfire. The court took the opportunity to cast a few stones at Katherine Harris, saying: "To allow the secretary to summarily disenfranchise innocent electors in an effort to punish dilatory board members, as she proposes in the present case, misses the constitutional mark." Of course, it was a statute written by the state legislature that — like the U.S. Constitution, which provides for a deadline for the states to submit their electors — set a deadline for the state and limited the opportunity for endless recounts. The legislature may not take too kindly to this kind of hyperbole, and has it within their power to appoint electors by other means. If the courts compound this decision by allowing significant deviation from previous standards with regard to the dimpled chad, I think legislative action is more than possible: It is likely.