New York Times
December 5, 2000


Florida Ruling Dwarfs Supreme Court Action


By WILLIAM GLABERSON

After yesterday's rulings, Vice President Al Gore's lawyers face new obstacles in what was already an extremely difficult fight to win the White House through a court-ordered recount.

Time is running out and, as recent days have shown, the courts follow their own timetable, one that resists prodding even when the presidency hangs in the balance.

In addition, appeals courts give broad authority to trial courts to decide the facts of the cases before them. As a result, the Gore lawyers face a major challenge in trying to overturn the ruling yesterday by Judge N. Sanders Sauls of Leon County Circuit Court that there was "no credible statistical evidence" or any other proof of a flaw in the election results.

Last night, some legal experts described the ruling by Judge Sauls as an almost insurmountable barrier for the Vice President. "In order to get anywhere now the Gore team has to overturn Judge Sauls's decision," said Samuel Issacharoff, an election law expert at Columbia Law School. "That's going to be a tremendous uphill fight."

Oddly, the decision in the afternoon from Judge Sauls, a trial judge in Tallahassee, Fla., overshadowed the ruling yesterday morning from the nation's highest court. By day's end, the highly technical ruling from the United States Supreme Court had become almost incidental to the swirling political and legal calculations.

The battle in the United States Supreme Court has no direct connection to the case before Judge Sauls, which concerned a contest by the Gore campaign to the certified election results. The Supreme Court justices made their ruling less pivotal by framing it as a narrow demand that the Florida Supreme Court reconsider its own initial ruling in a battle over events leading up to the certification.

"There is no doubt that this is a secondary dispute at this point. The big fight is the contest," said Jonathan L. Entin, a professor of constitutional law at Case Western Reserve University School of Law.

But, if the Supreme Court ruling seemed to fade into irrelevancy, lawyers said Judge Sauls's decision may well have been the most damaging decision to either of the candidates in weeks of legal warfare.

"From the perspective of Gore, this is all unraveling," said Pamela S. Karlan, an election law expert at Stanford Law School.

"The U.S. Supreme Court ruling was sort of a hole in the ship," Professor Karlan said after Judge Sauls's ruling. "This could sink it."

The immediate concern for the Gore legal team was how to get an appeal from Judge Sauls's decision moving on anything like the timetable the vice president needs to keep his chances alive.

Richard D. Friedman, a professor at the University of Michigan Law School, said the practical difficulties conspired against Mr. Gore because a mere week remains until Dec. 12, when Florida is to select its electors.

"In order for Gore to win the presidency," Professor Friedman said, "he's got the long shot of convincing the Supreme Court of Florida to reverse a trial court decision that was based partly on fact, which is very difficult; then to get them to do it very, very quickly; then to get a recount and a final result by Dec. 12. And that is extremely difficult."

Appeals courts typically say they are willing to substitute their legal decisions for the legal decisions of trial judges because they are at least as competent as trial judges in discerning what the law is.

But a fundamental legal principle is that fact-finders who see and hear testimony can detect the mendacity of liars and the veracity of honest witnesses. Appeals courts at a distance are reluctant to overturn the factual findings of trial judges.

Appeals courts typically say they require proof that a judge's factual determinations were "clearly erroneous" to overturn them.

Judge Sauls's ruling included some legal decisions, like his conclusion that Florida law does not permit certification of partial recount returns. If it chose to, the Florida Supreme Court could relatively easily conclude that was a misreading of the Florida law.

But Judge Sauls's ruling also contained factual decisions, including his determination that there was no statistical "or other competent, substantial evidence" of the many voting machine and tallying problems Mr. Gore's lawyers claimed.

Those factual findings suddenly became the biggest barrier between Mr. Gore and the presidency because of the difficulty of overturning them.

"That's a killer factual finding," said Richard L. Hasen, an election law expert at Loyola Law School in Los Angeles. "It's extremely unlikely that the Florida Supreme Court can do anything about it even if it wants to."

If the Florida Supreme Court did want to reject Judge Sauls's findings, lawyers yesterday said the calendar suggested that might be impossible.

Even at the quickened legal pace of recent days, it would be difficult for the courts to fit in a schedule that could do what Mr. Gore needs in the time he has.

In a review of Judge Sauls's decision, the Gore lawyers would have to state their claims in briefs, the Bush legal team would need time to respond. The case would have to be considered, and then ruled upon and, only then, doubtless after an attempt at a new appeal to the United States Supreme Court, might some court begin the ballot count the Gore lawyers have been asking for for days.

Copyright 2000 New York Times Company. All rights reserved.

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