Gore's lawyers pursue 'last chance' in Florida

Democrats urge state Supreme Court to order vote recount; If it did, Bush would appeal; Justices have made no promise to review lower court's ruling

By Ann LoLordo

Sun Reporter

December 7, 2000



Vice President Al Gore filed a brief with the Florida Supreme Court yesterday, asking it to overturn a judicial ruling that threw out his election challenge and to order an immediate manual recount of contested ballots that he believes will bring him victory in the state and propel him to the White House.

Gore's lawyers will face off against those representing Texas Gov. George W. Bush in an hour of arguments beginning at 10 a.m. today.

Acknowledging this is "the last chance" for a legal victory, the vice president's legal team proposed an ambitious plan for the state's high court to find for Gore, count 14,000 disputed ballots and proclaim the winner before Florida 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 the state's electoral votes to put him ahead 271-267.

The seven justices on the Florida high court have still not formally decided to take on the case, so the briefs filed by Gore and Bush lawyers also contained arguments why the court should entertain an appeal of Leon County Circuit Judge N. Sanders Sauls' decision Monday against further hand recounts.

The Bush lawyers urged the court to affirm Sauls' "well-reasoned and careful" decision, which they said conformed to state election laws. "Any further review of the Circuit Court's opinion would ultimately lead to massive uncertainty and discord," they asserted.

It would also, almost certainly, lead to an immediate Bush appeal to the U.S. Supreme Court in an effort to block any further recounting.

The Gore lawyers argued that the court must act favorably on the appeal and review 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. The rest are ballots with the now famous "dimpled chads" from Palm Beach County.

"This case, unlike many other election contests, does not involve a dispute over election technicalities or formalities. Rather it involves the most fundamental 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 the justices, six Democrats and an independent.

The review comes as the Florida Legislature announced that it would hold a special session to ensure that the state's electors would be named in time for the Electoral College vote Dec. 18. The legislature, which has a substantial Republican 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 unanimously deciding to extend the deadline for the certified vote count, allowing manual recounts 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 points of law when he ruled that:

An election contest must include a review of all of the state's 6 million ballots, not a select group.

A canvassing board must show a "clear abuse" of discretion to trigger a ballot count.

A "reasonable probability" that election results would be changed must be found before ballots can be reviewed.

The Gore team contends that Sauls misread the state elections law and set the hurdle too high. All they needed to prove, they asserted, was that contested ballots could "change or place in doubt" the election results.

The Bush lawyers said the Gore team failed to prove its case, relying on two witnesses, a political scientist who testified on hypotheses rather than fact and a statistician who admitted that an affidavit and a proffer discussed in 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, it must first deal with a U.S. Supreme Court request to clarify its ruling on another presidential election matter and address issues of federal law raised by the high court.

The Gore team asked the court to find in its favor and then, rather than return the case to Sauls as would be customary, to take it over "given the shortness of time and the importance of this proceeding." In such a case, the court could appoint a master to scrutinize the disputed ballots.

Two other related legal proceedings unfolded in Tallahassee yesterday, as lawyers for Democratic voters sought to persuade judges that Republicans had illegally tampered with applications for absentee ballots. In a proceeding before Judge Nikki Clark, a deposition given by Seminole County elections chief Sandra Goard, a Republican, was read into the record. She acknowledged that 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 witness stand that some 2,126 ballots requested by Republicans were affected. Of 15,000 absentee ballots cast, Bush won by a margin of 4,797. Only 34 similar Democratic ballots were rejected, she said.

Democrats are also challenging alleged Republican tampering with some 10,000 absentee votes in Martin County, where Bush also prevailed in the absentee count by a margin of 2,815.