Divided justices give Gore another chance to win

Published 12:00 am Saturday, December 9, 2000

The Associated Press

At the brink of defeat, Al Gore won new life Friday as the divided Florida Supreme Court ordered an immediate hand count of about 45,000 disputed ballots and put the Democratic candidate within 154 votes of George W. Bush in the state’s seemingly endless presidential contest.

Bush had been awarded the state’s electoral votes less the two weeks ago but the high court ruled 4-3 to reopen the state’s vote count. The decision came on a tumultuous day when two other Florida courts rebuffed Democratic efforts to find more votes for Gore and the Republican-controlled state legislature convened to protect Bush’s state-certified victory.

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Late Friday, Bush campaign attorneys asked the U.S. Supreme Court for an emergency stay of the Florida Supreme Court 41-page ruling until a federal appeals court in Atlanta could consider the case. Bush’s appeal said the Florida ruling was unconstitutional and that the electoral process could suffer ”material harm” if the recounts go forward.

Democrats went from despair to relief in the course of an hour Friday afternoon, and Gore advisers said they fully expected the vice president to overtake Bush in the new vote count. At that point they would begin pressuring the Texas governor to concede defeat much as Bush had attempted to do with Gore.

”Two strikes, two outs in the bottom of the ninth, and Gore gets a hit,” exulted Sen. Dick Durbin of Illinois, one of the Democrats who had said in advance that an adverse ruling could end Gore’s hopes.

However, there was plenty of opportunity for circumstances to change, as they have so often since the Nov. 7 election deadlock.

The Gore and Bush campaigns dispatched dozens of aides to protect their interests in dozens of Florida’s 67 counties where the ”undervotes” were to be counted.

Florida’s justices were split 4-3 in ordering the new count, and Bush attorney James A. Baker III said the decision ”could ultimately disenfranchise Florida’s votes in the Electoral College.”

The court’s majority said undervotes – ballots on which voting machines detected no vote for president – must be checked in every county ”where such a recount has not yet occurred.” Democrats believe most of these votes are concentrated in 17 counties that use punchcard ballots. Many of these older machines are in poorer jurisdictions where voters – many of them minorities – tend to vote Democratic.

Florida is required to certify its slate of 25 electors next Tuesday and the Republican-controlled Legislature met hurriedly to insure that those electors are pledged to Bush. Congress might ultimately be forced to decide whether to accept votes chosen through the court battle in Gore’s favor, or a slate picked by the legislature for Bush.

The Electoral College compiles the votes of all 50 states on Dec. 18 and those votes are to be counted by Congress on Jan. 6. The new president is to be sworn in Jan. 20 and both candidates would concede that transition preparations are already lagging.

With these deadlines looming, Florida Chief Justice Charles T. Wells wrote in a stark dissent that the court’s ruling ”propels this country and this state into an unprecedented and unnecessary constitutional crisis.”

Republicans expressed outrage with the majority opinion. ”This judicial aggression must not stand,” House Majority Whip Tom DeLay, R-Texas, said.

Gore campaign chairman Bill Daley called the decision ”a victory for fairness and accountability and our democracy itself.” Baker told reporters it was ”a sad day for Florida, it is a sad day for the nation and it is sad for our democracy.”

The legislature met to start the process of picking an Electoral College slate for Bush, setting up a potential constitutional clash should Gore overtake Bush in the count. ”All of these matters should be resolved by our independent courts – not by legislators and politicians,” Gore’s campaign said.

There have been many topsy turvy days since the election deadlock of Nov. 7 but surely none so turbulent as this. As the day dawned Friday was widely expected to decide the election in Bush’s favor. For Gore the day began ominously when the Florida Legislature convened to protect Bush’s state-certified claim on the White House. Before long, the vice president suffered another setback when two Florida judges rejected Democratic challenges to disqualify absentee ballot challenges in Seminole and Martin counties.

With their hopes fading, dispirited Democrats openly suggested Gore would concede if the Florida Supreme Court rejected his challenge to the 527-vote election victory certified almost two weeks ago by Secretary of State Katherine Harris. In oral arguments on Thursday, justices had seemed skeptical about Gore’s appeal and in a last-minute legal maneuver, Bush’s lawyers argued the justices don’t have authority to grant Gore the manual recounts he was seeking.

When the ruling came, it was a 4-3 decision in Gore’s favor, a split decision that reflected the season of political divisions. Court spokesman Craig Waters said, ”Because time is of the essence, the recount shall commence immediately.”

”I guess it’s time to do some counting,” Leon County elections supervisor Ion Sancho said. In Jacksonville, Duval County canvassing officials there have some 5,000 undervotes to count out of 291,000 cast. In Liberty County, 29 undervotes were buried in a pile of nearly 2,600 ballots.

Recounts were completed earlier in Volusia and Broward counties. A partial recount was completed in Miami-Dade County before the local canvassing board suspended its work. In addition, Palm Beach County officials completed a recount, but submitted the results after the deadline that Harris had been enforcing.

The high court ruling shaved Bush’s certified 537-vote lead to 154 votes by ordering that the earlier tallies in Palm Beach and Miami-Dade be added to the totals of each candidate. However, the court noted a discrepancy in the Palm Beach count and asked that the circuit judge make a decision that could add 39 votes to Bush’s county total, in which case his statewide lead would be 193.

The opinion overturned a ruling Wednesday by Circuit Judge N. Sanders Sauls. Sauls immediately recused himself from the case without explanation and it was reassigned to Leon Circuit Court Judge Terry Lewis. Gore’s lawyers asked the court to immediately establish a procedure to count undervotes statewide.

In a scene repeated throughout federal offices in Washington at 4 p.m., a handful of aides watching television with Deputy Attorney General Eric Holder on the fourth floor of the Justice Department let out a simultaneous ”Whoop!” when the Florida court decision was announced.

Ruling jointly in cases involving 25,000 absentee ballots, Circuit Court Judges Nikki Clark and Terry Lewis said that despite irregularities in ballot applications – the basis of the Democrats’ challenge in Seminole and Martin counties – ”neither the sanctity of the ballots nor the integrity of the elections has been compromised.”

Gore was not directly involved in those cases, and his advisers said they had never counted on them succeeding.

”This is the definitive day,” Sen. Robert Torricelli, D-N.J., said as he awaited the high court’s decision. He said that if Gore could not win there, ”Then this battle is over.” Rep. Jim Moran, D-Va., said that if Gore is turned down, ”I would expect that he would concede today.”

Gore spent two hours at the White House, working in his West Wing office.

”Howdy, it is a beautiful day, isn’t it,” he said to reporters.

Bush was in Austin, meeting with advisers at the governor’s mansion and conducting a telephone conference call with running mate Dick Cheney and others at the Bush transition headquarters just outside Washington.

”We are hopeful that we’ll finally see finality when it comes to this election,” the governor said. ”It’s time to get on with America’s business. But we’ll see what the courts decide today.”

Asked if he thought there would be a president-elect by day’s end, Bush raised the possibility of the Florida Supreme Court ordering a recount. ”We’re prepared if need be to take our case back to the (U.S.) Supreme Court,” Bush said. ”I hope that doesn’t take place.”

Bush said that if he wins the presidency, he would be ready to name his White House staff quickly and lay out a timetable for announcing his Cabinet.

In Tallahassee, the 160-member legislature opened with partisan fireworks. Republicans presented resolutions in the House and Senate that would ratify the 25 Bush electors who were named when Harris certified him the statewide winner on Nov. 26.

House Speaker Tom Feeney said the lawmakers must act because there has been no ”timely and universally accepted outcome” to the Nov. 7 election. Senate Democratic Leader Tom Rossin shot back, ”I believe this is illegal, unconstitutional and plain wrong.” Democrats complained that Bush’s campaign was calling the shots.

”Senators, no matter how bad you want the governor of Texas to be president, we cannot substitute our will for the will of the people,” said Rossin. ”Our constituents sent us here to represent them, not to vote for them.”

Both houses adjourned within an hour, reserving Monday for hearings on the resolutions.