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The vice president will have difficulty wrapping up his court battle by
By TIM NICKENS
© St. Petersburg Times, published November 28, 2000
TALLAHASSEE -- Al Gore's biggest adversary may be the clock.
At the first court hearing Monday on the vice president's bid to contest the presidential election results in Florida, it became clear that this court fight will not move nearly as quickly as others have since voters went to the polls three weeks ago today.
The rest of this week could be consumed with filing motions and responses, exchanging witness lists and examining evidence. After that there will be a trial in Leon Circuit Court, complete with exhibits and testimony from witnesses for Gore and the defendants, including George W. Bush, Secretary of State Katherine Harris and members of three county canvassing boards.
Gore also wants a judge or a special master appointed by the court to examine thousands of ballots. On Monday, opposing lawyers couldn't even agree when and how to move the ballots from South Florida to Tallahassee.
What appears certain is that Gore will have a difficult time wrapping up his court battle by Dec. 12, the day that federal law requires states to name their electors for the Electoral College. Even if there is a decision by then, the loser would be expected to appeal to the Florida Supreme Court.
Asked after Monday's hearing when he expected the trial to end, Bush lawyer Barry Richard joked: "I'm hoping it will be resolved by March."
By then, the next president will have been living in the White House for six weeks.
Gore lawyer Dexter Douglass was more optimistic, and Circuit Judge N. Sanders Sauls recognized that the clock is running. But with multiple defendants and Sauls' tentative approval of allowing two lawyers representing individual voters to join the case, it may prove difficult to quickly move the trial along.
"We all know what the deadline is," Douglass said.
The first hearing in Gore's contest of the election results came on a day of other legal maneuvering that included a request by some Democrats that the Florida Supreme Court hear a lawsuit over Palm Beach County's "butterfly ballot." A Seminole County case in which Democrats allege Republicans tampered with absentee ballots was transferred to Leon County, and Bush lawyers sought to put on hold oral arguments against the manual recounts at a federal appeals court in Atlanta.
By Gore's estimate, he easily would be leading Bush in Florida if three counties would count the votes the way he thinks they should be counted.
The vice president's lawyers filed his motions to contest the presidential election shortly after noon Monday in Leon Circuit Court, the venue for contests of all statewide elections. As expected, he focused on three counties: Miami-Dade, Palm Beach and Nassau counties.
"The vote totals reported in the Election Canvassing Commission's certification of Nov. 26, 2000, are wrong," the complaint says. "They include illegal votes and do not include legal votes that were improperly rejected. The number of such votes is more than sufficient to place in doubt, indeed to change, the result of the election."
In a conference call with House Minority Leader Richard Gephardt and Senate Minority Leader Tom Daschle on Monday, Gore emphasized he is following Florida law in his effort to contest the election.
"Under Florida law," the vice president said, "the law says when votes haven't been counted you go to court and say, "Look, here's the situation. Take a look at it and do the right thing.' And that's essentially what we're doing."
The Gore campaign argues in the complaint that Bush's lead of 537 votes "was entirely the result" of several factors:
The state's failure to include in the certified vote totals the results of the Palm Beach County manual recount and the manual recount of about 20 percent of the precincts in Miami-Dade.
Changes to totals in Nassau County that gave about 50 net votes to Bush.
Not counting about 4,000 ballots in Palm Beach County that were marked by voters with an indentation but were not punctured and not counted by the county canvassing board.
Not counting about 9,000 ballots in Miami-Dade that failed to register a presidential vote when mechanically counted.
Gore estimates he would have gained about 215 net votes in Palm Beach from the manual recount, 800 net votes in Palm Beach from indented ballots, 50 net votes in Nassau County and 600 net votes from Miami-Dade from the ballots where a mechanical count did not record any vote.
The potential for the largest impact rests with Miami-Dade, where elections officials flip-flopped at least twice before giving up trying to manually recount ballots.
Gore argues that state law required the canvassing board to recount all of the ballots based on the results of the recount of several sample precincts, which produced a net gain of six votes for the vice president. His motion cites newspaper reports of the protests by Republicans that occurred just before the canvassing board decided to abandon the effort.
"The Miami-Dade results alone show that Al Gore and Joe Lieberman received a number of votes which, when added to the statewide totals previously reported, would be sufficient to change or place in doubt the result of the election," the complaint says.
Gore also argues that Miami-Dade should have submitted the results of a partial manual recount that gave about 160 net votes for him.
As for Palm Beach County, Gore argues that Harris improperly rejected the results of the county's manual recount Sunday. He also contends that the voting equipment resulted in thousands of ballots where voters tried to cast votes but none were recorded -- particularly in the first column that was used for presidential votes.
"The problem resulted from equipment difficulties that included an unusually hard plastic backing underlying the punch card, the accumulation of dislodged chads on this surface, and punch card perforation and misalignment problems," the complaint says.
If pieces of chad are completely dislodged, the complaint says, "the tabulating equipment often does not count a vote that a voter intended to cast."
Gore also alleges that the Palm Beach canvassing board used a standard for evaluating ballots that was too strict and "did not honor the voters' intent to satisfy the applicable legal standard."
As for Nassau County, Gore argues that the canvassing board met illegally and improperly reverted back to the first vote count from Nov. 7 instead of submitting the mechanical recount to the state.
Gore wants the court to examine the 10,750 ballots from Miami-Dade that failed to register presidential votes when mechanically processed, require the state to include the mechanical recount of the Nassau County totals and the hand recounts of Palm Beach County, and examine 892 disputed Palm Beach ballots.
None of the defendants filed an immediate response to Gore's claim, but Richard outlined a probable defense. He said after the court hearing that he does not think state law provides for the recounts that Gore is seeking.
"Essentially, they're asking for another canvassing board," Richard said. "I don't know any legal authority for it."
But the mantra from Gore and his supporters is that the vice president is following state law and only asks for every vote to be counted. They point out that the ballots are public record and that someone will count them for history's sake if they are not counted now.
"Wouldn't it be a terrible thing for the country," House Minority Leader Richard Gephardt told Gore during the conference call, "to find out a month or two from now that you got the most votes?"
The Republican-dominated Florida Legislature filed papers with the U.S. Supreme Court claiming that federal law gives state lawmakers the ultimate say over which 25 electors Florida sends to the Electoral College. Uneasy with George W. Bush's paper-thin win in Florida, and the possibility that Gore's challenge could put him on top, the Legislature is doing everything it can to make sure Bush's win holds up.
Bush lawyers sought to put oral arguments on hold in a case they brought before a federal court in Atlanta against Florida's manual recounts.
Both sides agreed to move a lawsuit alleging Republican tampering with as many as 15,000 absentee ballots in Seminole County to the circuit court in Tallahassee because that's where the election was certified. The Gore team did not make that complaint part of its own suit.
Still unresolved were state lawsuits filed by Bush on Sunday seeking to force Hillsborough, Okaloosa, Orange, Pasco and Polk counties to count a small number of rejected overseas absentee ballots.
The Rev. Al Sharpton's National Action Network filed a federal lawsuit in Miami on behalf of three Miami residents. It says minority voters were disenfranchised because Bush was certified as the winner without a completed Miami-Dade manual recount.