Vice President Al Gore filed a brief with the FloridaSupreme Court yesterday, asking it to overturn a judicial ruling that threwout his election challenge and to order an immediate manual recount ofcontested ballots that he believes will bring him victory in the state andpropel him to the White House.
Acknowledging this is "the last chance" for a legal victory, the vicepresident's legal team proposed an ambitious plan for the state's high courtto find for Gore, count 14,000 disputed ballots and proclaim the winner beforeFlorida chooses its 25 electors Dec. 12 - six days before the Electoral College votes.
Bush - the certified winner of Florida by a 537-vote margin - needs thestate's electoral votes to put him ahead 271-267.
The seven justices on the Florida high court have still not formallydecided to take on the case, so the briefs filed by Gore and Bush lawyers alsocontained arguments why the court should entertain an appeal of Leon CountyCircuit Judge N. Sanders Sauls' decision Monday against further hand recounts.
The Bush lawyers urged the court to affirm Sauls' "well-reasoned andcareful" decision, which they said conformed to state election laws. "Anyfurther review of the Circuit Court's opinion would ultimately lead to massiveuncertainty and discord," they asserted.
It would also, almost certainly, lead to an immediate Bush appeal to theU.S. Supreme Court in an effort to block any further recounting.
The Gore lawyers argued that the court must act favorably on the appeal andreview their key evidence in the case - 10,750 ballots from Miami-Dade County,kicked out by voting machines without a vote for president being recorded. Therest are ballots with the now famous "dimpled chads" from Palm Beach County.
"This case, unlike many other election contests, does not involve a disputeover election technicalities or formalities. Rather it involves the mostfundamental question an election can pose: Which candidate got more votes?"the Gore team said in its filing.
This is the second time the presidential dispute has ended up before thejustices, six Democrats and an independent.
The review comes as the Florida Legislature announced that it would hold aspecial session to ensure that the state's electors would be named in time forthe Electoral College vote Dec. 18. The legislature, which has a substantialRepublican majority in both houses, was angered by the court's Nov. 21 ruling,which it said interfered in its business.
In that ruling, the court dealt Gore a legal victory by unanimouslydeciding to extend the deadline for the certified vote count, allowing manualrecounts under way in three largely Democratic counties to carry on.
Bush has a legal edge going in this appeal before the court because Sauls -a Democrat appointed to the bench by a conservative Republican governor -issued findings of fact when he ruled that Gore had not proved his case.
Gore's lawyers, however, have attacked the judge's ruling on legal issues,an easier standard to prove. They charge that the judge erred on three pointsof law when he ruled that:
An election contest must include a review of all of the state's 6 millionballots, not a select group.
A canvassing board must show a "clear abuse" of discretion to trigger aballot count.
A "reasonable probability" that election results would be changed must befound before ballots can be reviewed.
The Gore team contends that Sauls misread the state elections law and setthe hurdle too high. All they needed to prove, they asserted, was thatcontested ballots could "change or place in doubt" the election results.
The Bush lawyers said the Gore team failed to prove its case, relying ontwo witnesses, a political scientist who testified on hypotheses rather thanfact and a statistician who admitted that an affidavit and a proffer discussedin court "were false and misrepresented the work that he had done."
The Bush team also said that if the court chose to hear the Gore appeal, itmust first deal with a U.S. Supreme Court request to clarify its ruling onanother presidential election matter and address issues of federal law raisedby the high court.
The Gore team asked the court to find in its favor and then, rather thanreturn the case to Sauls as would be customary, to take it over "given theshortness of time and the importance of this proceeding." In such a case, thecourt could appoint a master to scrutinize the disputed ballots.
Two other related legal proceedings unfolded in Tallahassee yesterday, aslawyers for Democratic voters sought to persuade judges that Republicans hadillegally tampered with applications for absentee ballots. In a proceedingbefore Judge Nikki Clark, a deposition given by Seminole County electionschief Sandra Goard, a Republican, was read into the record. She acknowledgedthat she allowed GOP operatives to fill in voters' identification numbers,while Democrats were not given the same opportunity.
Rachel D. Gebaide, a lawyer for the county, acknowledged on the witnessstand that some 2,126 ballots requested by Republicans were affected. Of15,000 absentee ballots cast, Bush won by a margin of 4,797. Only 34 similarDemocratic ballots were rejected, she said.
Democrats are also challenging alleged Republican tampering with some10,000 absentee votes in Martin County, where Bush also prevailed in theabsentee count by a margin of 2,815.