Trial recesses after 4 witnesses; will resume today
By TIM NICKENS
© St. Petersburg Times, published December 3, 2000
TALLAHASSEE -- Al Gore's historic challenge of Florida's presidential election results opened with little drama and plenty of arcane talk about punch cards, voting booths -- and chad.
Lawyers for the vice president argued on Saturday that faulty voting machines and hand recounts that used improper standards for distinguishing between votes and stray indentations on ballots cost Gore enough votes to win Florida and the presidency.
George W. Bush's lawyers aggressively counter-attacked as they questioned the credibility of Gore's only two witnesses and launched a spirited defense. They argued that the voting machines were fine and that voters simply made mistakes that cannot be counted as votes.
But just in case Gore's team succeeds in persuading Leon Circuit Judge N. Sanders Sauls to order a hand recount of 14,000 ballots from Miami-Dade and Palm Beach counties, Bush's lawyers filed papers that would seek recounts in Volusia and Broward counties.
In those two counties, Bush attorney Phil Beck said outside the courtroom Saturday night, "we're confident too many votes counted for Mr. Gore and not enough counted for us."
The Bush lawyers also asked Sauls to certify the vote total in Seminole County, where Bush won but Democrats are suing to throw out thousands of absentee ballots.
The focus this morning, though, remains on Sauls and Gore's desperate attempt to start recounting votes. The judge had hoped to finish the trial Saturday night, but gave up when it bogged down with technical witnesses and recessed about 6:30 p.m. The trial resumes at 9 this morning, with Bush expected to call about a dozen more witnesses.
Gore is battling the clock and hopes ballots are recounted immediately, convinced that he can overcome Bush's 537-vote margin in Florida's certified results. If it holds up, the Texas governor's slim advantage would give him the state's 25 electoral votes and the presidency. The deadline by which federal law requires electors to be chosen by the states is Dec. 12, just nine days away.
Saturday was not the day for stirring oratory.
The first contest of a presidential election in modern history kicked off with rather dull testimony that produced no surprises. Gore's team presented just two witnesses, who spent several mind-numbing hours answering detailed questions.
A consultant on election practices testified that voting machines that use punch cards can fail to record attempts to cast votes because of a variety of problems, such as a build-up of chad in the machine or worn rubber underneath the ballot. Lawyers and Sauls closely examined sample machines and ballots, and a pile of chad eventually was logged in as evidence.
A Yale University statistician also testified for Gore that the portion of ballots where no vote was recorded in a mechanical count of ballots was higher in counties that use punch cards than in those that use an optical scan system. Palm Beach County's figure was even higher than the statewide average for punch cards.
The Bush team also called on two witnesses, including one whose face is by now familiar to cable television viewers. Palm Beach County Judge Charles Burton, the chairman of the county canvassing board, talked of swinging chad and hanging chad as he defended how the canvassing board used its discretion as it recounted more than 14,500 ballots.
"You've got a new skill," Bush attorney Fred Bartlit told Burton.
"I'm not sure what I'm going to do with it," Burton replied.
The only other Bush witness was a rubber expert who testified about the quality of rubber strips used in voting booths. The rubber is supposed to provide the necessary backing for a stylus to be punched cleanly through a ballot.
Gore's election challenge was a tough ticket.
The trial took place in the modern, 10-year-old Leon County Courthouse across Monroe Street from the state Capitol. Satellite trucks parked outside on the sidewalk, and journalists gathered before dawn to claim passes to the windowless third-floor courtroom. There are just five rows of wooden benches, which hold an audience of about 60, and a waiting list of spectators hoped to catch a live glimpse of history.
"If you do not have a pass, you need to leave," a bailiff ordered just before the trial began at 9:15 a.m.
More than two dozen lawyers from around the country, dressed in conservative gray and blue pinstriped suits, squeezed in and around the glass-topped tables for the plaintiffs and the defendants.
The Bush lawyers brought laptop computers and used them to call up court filings and beam larger-than-life images of punch cards and other documents onto the wall. The Gore lawyers stuck with pens and legal pads.
Several floors below the courtroom, more than 1-million ballots from Miami-Dade and Palm Beach counties sat in metal boxes in the county vaults.
As the presidential drama played out inside the courthouse and on live television Saturday, several dozen protesters gathered outside, chanted slogans and waved blue "Bush-Cheney" signs. And as the trial recessed Saturday night, thousands of residents jammed downtown for the city's annual holiday festival. Tiny lights glistened in the live oak trees as the residents waited for Santa to arrive in a parade.
The trial is just one spoke in the legal battles swirling around the presidential election nearly four weeks after voters went to the polls.
The U.S. Supreme Court is expected to rule this week on whether the Florida Supreme Court exceeded its authority when it extended state deadlines and ordered elections officials to accept hand recounts. More than 40 other lawsuits regarding the election have been filed in Florida.
And the loser in Judge Sauls' court, of course, is expected to immediately appeal to the Florida Supreme Court just two blocks away.
It took less than an hour for the Gore and Bush teams to sketch their arguments in opening statements.
David Boies, the gawky, balding lawyer for Gore, attempted to divide the issues into two key areas. He argued that in an election challenge the question is whether there are legally cast votes left to be counted, not whether votes were properly or improperly excluded in certified state results.
Under that theory, Boies said the court should immediately add 52 votes in Nassau County that Gore lost when the canvassing board reverted from a mechanical recount to the original count; about 175 net votes for Gore from Palm Beach County that were hand counted but that Secretary of State Katherine Harris refused to include in the state's certified totals; and 388 net votes from a hand recount of several thousand Miami-Dade votes.
"The fact that those votes exist is what is important, not whether or not they are certified," Boies said. "In an election contest, as long as they're legal votes, they've got to be considered."
Gore also wants immediate hand recounts of 3,300 contested ballots from Palm Beach County, where the canvassing board adopted a tougher standard than Miami-Dade and Broward counties used for determining whether dimples should be counted as votes. And the vice president wants more than 9,000 Miami-Dade ballots that recorded no vote for president when they were mechanically counted to be manually counted.
Then Bush attorney Barry Richard, whose thick, brush-backed gray hair has led to comparisons of his appearance to those of members of a '50s rock group, took his turn.
Richard contended that Gore lawyers want candidates to have "three shots at the basket": a count of votes on Election Day, a recount and a count by a judge after the loser contests the election results.
"We might as well take all the votes on election night and ship them to Tallahassee for the judge to begin counting," Richard said.
He said state law presumes that county canvassing boards have the discretion to count votes as its members see fit. A judge would have to conclude board members acted improperly and abused that discretion, Richard said, before adjusting vote totals.
Joseph Klock, representing the secretary of state, said Gore's attorneys are mixing various state laws into "sort of an election-code omelet." He argued that Gore should have challenged the election results in every county.
Otherwise, Klock said, the court would have to rely on "a voodoo presentation of statistics" to determine how the three contested counties hand-picked by Gore would affect the state results because ballots from 64 other counties would not be re-examined.
"I do not believe, your honor, that there is any basis whatsoever to have a pick-and-choose manual recount in the state of Florida in a statewide race," Klock said.
While the trial is historic, it also is routine.
Witnesses testified. Lawyers questioned. Lawyers on the other side objected. And the judge rubbed his eyes and became impatient before lunch.
"Is this witness going to be on all day?" Sauls asked at one point during more than three hours of testimony by Gore's first witness.
Kimball Brace, president of the consulting firm Election Data Services, testified for Gore that dimples in punch card ballots could be created if the rubber underneath the ballot had deteriorated, preventing the stylus from punching through.
Bush lawyers later responded with a rubber expert who testified about the quality of the types of rubber used in voting machines, but acknowledged he has not examined the machines used in the election.
Brace also testified that the chad is not cleaned out of the machines after every election in Palm Beach. He said a buildup could make it difficult for voters to cleanly punch through their ballots, and he defended hand recounts.
"When you have a close election," he said, "a manual hand count is the only way of knowing exactly how many votes were cast for each candidate."
But Brace's rambling testimony could have done Gore as much as harm as good.
Sauls brushed aside a line of questioning that suggested voters tried to scratch out votes without properly placing the punch cards in the machines. Brace also acknowledged it would be best to look at all the ballots, not just those Gore wants to recount, and all of the races to determine if there was a pattern of indentations instead of cleanly punched holes.
"You would expect those indentations to continue down the ballot," he said.
With exaggerated movements, each side tried to bolster their arguments about chad from punch card ballots that are stuck in machines.
Bush attorney Beck handled a voting machine like fine china as he suggested chad could easily fall out as the machines are moved from voting precincts to storage sites.
"They don't walk this way all the way to the warehouse so they don't trip over piles of chad?" Beck asked, carrying the suitcase-sized machine gingerly in both hands.
A short time later Gore attorney Steve Zack violently shook the machine.
"You ever seen someone after voting shake the machine to get all the chad out of there?" he asked Brace.
In a trial of such weight, there were other moments of levity.
A lawyer representing Panhandle residents who believe they have been disenfranchised raised a few eyebrows with an opening statement making comparisons to George Orwell's Animal Farm.
When Klock, Harris' lawyer, apologized for referring to notes, the folksy judge cut him off.
"Don't feel bad," said Sauls, his glasses sliding down his nose as he scribbled notes himself. "I'll burn up a pad here in a little bit."
Hours later, Bush attorney Beck asked a statistician who was a witness for Gore a hypothetical question about determining the relationship between storks in England and the birth rate.
"I didn't know there were storks in England," replied Yale University professor Nicolas Hengartner. "In Poland, they have storks like that."