Washington Post
December 8, 2000

Fla. Court Rules for Gore; Bush to Appeal to U.S. Supreme Court

By Charles Babington and Peter Slevin

WASHINGTON -- A divided Florida Supreme Court today breathed new life into Vice President Gore's presidential aspirations, ordering manual recounts of thousands of disputed ballots throughout the state. Ruling 4 to 3, the court also ordered state officials to certify 383 new votes for Gore that previously were rejected because they came from partial recounts of county returns.

The decision, if upheld, immediately shrinks Texas Gov. George W. Bush's lead from 537 votes to 154. Gore hopes the newly ordered recounts will detect still more Democratic votes, enough to obliterate that difference.

Bush spokesman James A. Baker III denounced the ruling as legally wrong and "sad for our democracy," and said the Bush team would appeal immediately to the U.S. Supreme Court. CNN reported that Bush was seeking an immediate injunction from a federal appeals court in Atlanta.

The ruling, Bush's greatest legal setback since Election Day, ensures that the bitter election battle will continue at least into next week. Still, Gore faces considerable political and legal hurdles. They include Bush's appeal as well as opposition from Florida's GOP-controlled legislature, which met today to prepare the selection of a pro-Bush slate of electors.

The Supreme Court ruling, read by a spokesman at 4 p.m. in Tallahassee, said a lower court "shall immediately begin a manual recount of the approximately 9,000 Miami-Dade ballots that registered undervotes," or ballots that did not register a presidential vote when counted by machines. The ruling also said state officials must certify 215 votes from Palm Beach County, and 168 from Miami-Dade County, which previously were rejected because those two counties didn't finish their manual recounts by a state-imposed deadline on Nov. 26.

"In addition, the Circuit Court shall order a manual recount of all undervotes in any Florida county where such a recount has not yet occurred," said court spokesman Craig Waters. "Because time is of the essence, the recount shall commence immediately. In tabulating what constitutes a legal vote, the standard to be used is the one provided by the legislature. A vote shall be counted where there is a clear indication of the intent of the voter."

Such a ruling may not resolve intense debates over when to count punchcard ballots with "dimpled chads" or "hanging chads," which make it difficult to determine whether a voter meant to punch a hole next to a candidate's name.

The ruling suggested that most, if not all, of Florida's 67 counties will have to manually review ballots that registered no presidential choice on Election Day. It wasn't immediately clear how many thousands of ballots that might include. Eighteen counties used punchcard ballots, the type most prone to yield votes that are undetected by counting machines but later picked up in manual reviews. Bush carried several of those counties, but Gore carried the largest, Miami-Dade.

William Daley, Gore's campaign manager, said: "This decision is not just a victory for Al Gore and his millions of supporters. It is a victory for fairness and accountability and our democracy itself."

The ruling overturned the main elements of Monday's decision by Circuit Court Judge N. Sanders Sauls. The four justices in the majority were Harry Lee Anstead, Barbara J. Pariente, R. Fred Lewis and Peggy Quince. The three dissenters were Charles T. Wells (the chief justice), Major B. Harding and Leander J. Shaw Jr. All seven justices were appointed by Democratic governors.

Perhaps the best news for Gore was the order to manually review 9,000 disputed punchcard ballots in Miami-Dade, Florida's most populous county. Miami-Dade officials had planned to recount the county's 9,000 "undercount" ballots by hand, but dropped the plan on Nov. 22, saying they couldn't meet the state's Nov. 26 deadline.

James A. Baker III, Bush's chief spokesman in Florida, called the ruling "very sad. It is sad for Florida, it is sad for our nation, and it is sad for our democracy." He said it could jeopardize the state's 25 electoral votes. Baker read approvingly from a stinging dissenting opinion written by Chief Justice Wells, that said: "I believe the majority's decision cannot withstand the scrutiny that certainly will immediately follow."

Today's dramatic ruling came less than two hours after a Bush legal victory: Two Florida circuit judges rejected Democratic bids to invalidate enough absentee ballots to put Gore ahead of Bush. They concluded that Republican election officials in Seminole and Martin counties might have erred slightly when they allowed GOP operatives to supply missing voter-identification information on absentee ballot request forms. But the circuit judges said such "irregularities" did not justify the remedy sought by Democrats who filed the lawsuits: Throwing out thousands of absentee ballots from the two counties.

The Supreme Court ruling gave new urgency to Florida legislators' plans to name a slate of electors by Wednesday, five days before the Electoral College votes on Dec. 18. The state Senate and House met briefly today, but plan to move in earnest beginning on Monday. Bush aides acknowledged today that his campaign team has provided legal advice to legislators leading the special session.

Those lawmakers say they fear Florida's election outcome could remain uncertain as the Dec. 18 Electoral College vote nears, and they want to make sure the state's 25 electoral votes are counted. Tuesday, Dec. 12, is the day Florida had planned to name its electors.

Some Democratic legislators accuse their GOP colleagues of a partisan power play designed to prevent any court rulings from giving Gore a chance to claim the election. The U.S. Constitution empowers state legislatures to choose the manner for selecting electors. The legislature adjourned for the day less than an hour after convening.

In its majority opinion, the Florida Supreme Court took care to say its decision was based on state law, not the state consititution. The U.S. Supreme Court had sent back an earlier ruling by the Florida high court, asking for assurance that it was based on state laws that govern election procedures.

"Although courts are, and should be, reluctant to interject themselves in essentially political controversies," the ruling said, "the legislature has directed.... that an election contest shall be resolved in a judicial forum."

Today's Supreme Court ruling came one day after the seven justices all appointed by Democratic governors heard oral arguments from Bush and Gore lawyers for more than an hour. They appeared deeply divided over what Gore needed to prove to obtain another ballot review, how many ballots would have to be examined, and whether there could be any remedy at this late stage.

The justices asked 81 questions in less than 80 minutes. At issue was Gore's appeal of Circuit Court Judge N. Sanders Sauls's ruling on Monday, a major legal victory for Bush. Sauls rejected Gore's request for manual recounts of 9,000 disputed ballots in Miami-Dade County. Sauls also refused Gore's request to recount about 4,000 Palm Beach County ballots and to include the results in the state's certified total.

Gore contends he may have hundreds or thousands of votes on punchcard ballots that counting machines failed to detect. Bush lawyers say there's insufficient evidence to support his claim and therefore no legal basis for launching new ballot counts a month after the election took place.

At least four of the justices yesterday questioned the legal basis for such a recount, asking whether a proper review would have to cover an entire county or even the state. Chief Justice Charles T. Wells seemed to doubt that it was possible to finish the count in time. "We don't have a remedy here that can do that by December the 12th," he said.

The justices also asked numerous questions about the impact of Monday's U.S. Supreme Court decision. It warned them to pay deference to the preeminent role that the U.S. Constitution and federal law grant to state legislatures in setting the rules for presidential elections.

At the same time, however, some justices questioned Sauls's statement that Gore had to show a "reasonable probability" that the outcome of the election would have changed if the manual recounts were conducted. State law seems to allow such a recount if there are enough disputed votes to place the outcome "in doubt," some said.

David Boies, Gore's chief lawyer, argued that the vice president was entitled under Florida law to have the recount and that Sauls was wrong not to examine the ballots.

"These are ballots where we know that if you look at the undervotes, you find ballots that can clearly have a discernible intent of the voter found from them. And yet, they are not counted," Boies said. "So this is not a situation in which you simply have somebody coming in and saying, 'We lost, and we want to have another chance at it.'"

But Barry Richard, the lawyer for Bush, urged the court not to second-guess the decisions of election officials about which votes to include (in the case of Palm Beach County) or whether the recount could be finished in time (in the case of Miami-Dade.)

He said Gore, in seeking a court-ordered review of ballots that did not register a vote when run through machines, is essentially arguing that "any time there's a Votomatic [punch-card] machine in a close election and somebody says count all the ballots, you must do so."

Staff writer Roberto Suro contributed to this report. Babington reported from Washington, Slevin from Tallahassee.

Copyright 2000 Washington Post. All rights reserved.

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