Republican gubernatorial challenger Ellen R. Sauerbrey goes to court today with new attorneys presenting a case that has shrunk dramatically since it was filed two weeks ago.
Despite election night assertions that the Democrats stole the governor's race, the case to be presented in Anne Arundel County Circuit Court appears to be more about official sloppiness than organized vote stealing.
Much of the actual evidence to be presented in court will scarcely resemble the sweeping allegations made in the lawsuit Mrs. Sauerbrey filed Dec. 27 challenging her 5,993-vote loss to Democratic Gov.-elect Parris N. Glendening. During depositions over the weekend, the Sauerbrey camp sharply reduced its claims about the number of people whose votes should not be counted.
The number of inmates, for example, in whose names votes allegedly were cast has shrunk from the 4,700 cited in the original lawsuit to just 10, according to figures from the Sauerbrey camp.
Likewise, the Sauerbrey camp said during the weekend that it would challenge only about 7,000 voters who moved to a new residence without changing the address on their voter registration as required by law, according to attorneys for Mr. Glendening.
The original lawsuit claimed more than 40,000 such voters would be challenged.
An accountant for the Sauerbrey campaign who concluded that the vote count in Baltimore wrongly added 1,473 votes to Mr. Glendening's margin didn't include the absentee ballots in her count, according to Glendening attorney George A. Nilson. The official tally was accurate, he said.
The most flexible figure in the Sauerbrey challenge is probably the number of "dead" voters, which has changed from the 37 alleged in the lawsuit -- some of whom turned out to be alive -- to 16 in a Friday estimate and back up to 89 over the weekend.
In all, Mrs. Sauerbrey will challenge about 14,000 votes, down from the 51,000 originally targeted in her lawsuit.
"It appears if we wait long enough, we will have an entirely different case," said Bruce L. Marcus, Mr. Glendening's lead attorney. "Fortunately for us, each time they review the data at our request, it appears the foundation of her case continues to erode."
"We're looking forward to having the opportunity to challenge the evidence in court," he said.
John M. Carbone, Mrs. Sauerbrey's lead attorney, played down the shrinking numbers.
"The numbers will continue to change until the case is finally over," he said last night.
Mrs. Sauerbrey has secured a list from Baltimore election officials of more than 1,800 voters who, she claims, were ineligible to vote under Maryland law because they had not cast ballots in the preceding five years. Attorneys for the Baltimore election office acknowledge that those names should have been purged from the voter rolls.
But even so, their votes should count, Mr. Marcus said yesterday.
"A judge is going to have to say to 1,800-plus citizens of the state that their vote, which was cast in good faith by eligible voters, should not count," Mr. Marcus said. "We don't think the law supports it. We don't think equity supports it."
Mrs. Sauerbrey's lawyers have listed more than two dozen potential witnesses, including an architect to testify that certain buildings are uninhabitable or razed even though Baltimore voters listed them as their addresses.
A statistician is poised to testify about how the election would have turned out if certain numbers of votes were to be thrown out.
And workers from a Baltimore moving company may testify about control keys they say were left improperly in some voting machines when the machines were brought to a city warehouse after the election, as reported today in The Sun.
To ensure the security of voting machines and vote totals, all control keys should have been returned promptly to election board headquarters the night of Nov. 8. It was not clear in the Sauerbrey suit just what the Republicans hope to prove about handling of the keys.
Mr. Glendening's attorneys predicted the trial before Anne Arundel Judge Raymond G. Thieme Jr. could take four or five days, but a Sauerbrey lawyer said it could go much longer, thanks in part to the army of attorneys involved.
In this unprecedented challenge to a statewide election, Judge Thieme will rely on a brief section of Maryland law as he sifts through the allegations.
The law says in part that a judge can throw out an election if "clear and convincing evidence" shows that any illegal "act or omission" might "have changed the outcome."
During the weekend, as her team worked to firm up its legal arguments, Mrs. Sauerbrey was forced to deal with the defection of her two lead trial attorneys, who abandoned the case after clashes with Mr. Carbone, the New Jersey election-law expert who has directed the investigation into the election.
Mr. Carbone will now take a lead role at trial as well, assisted by newly recruited attorneys who worked all weekend to prepare.
On election night, many in Mrs. Sauerbrey's camp at the Timonium state fairgrounds were convinced that the election had been stolen when her apparent victory disappeared around midnight as thousands of votes poured in from Glendening strongholds.
Mrs. Sauerbrey herself now acknowledges she has turned up no grand scheme to steal the election, something that presumably would have required the participation of vast numbers of Glendening supporters.
"My guess is that a lot of things happened that probably happen in every election -- a lot of people doing independent things, and a certain level of organized effort," Mrs. Sauerbrey said Friday.
But, she added: "I am in no way, shape or form going to point fingers. Who's doing it? I don't know."
Mr. Glendening has minimized Mrs. Sauerbrey's allegations, saying her lawsuit is merely the first salvo in her 1998 gubernatorial campaign.
Hampered by a cold and exhausted by trial preparation that included a Saturday-night deposition with Mr. Glendening's attorneys, Mrs. Sauerbrey scoffs at the notion.
"If this was about 1998, I can tell you, I would find much more pleasant ways to do it -- ways not to have people calling me 'sour grapes, sore loser,' " she said.
"This is the most painful way I could imaging campaigning for 1998. I am not a masochist."