From the archives: In Florida, battle over election recounts continue

This story was originally published in Newsday on November 29, 2000

A Florida circuit judge last night rejected Al Gore's request to begin an immediate recount of thousands of disputed ballots in that state's bitterly contested presidential election, but suggested the recount might begin as early as Saturday if he concluded it was justified.

Battling a ticking clock and a growing public desire for resolution of the disputed election, Gore had asked Judge N. Sanders Sauls to order a speedy review of some 14,000 contested ballots from two counties that are central to his hopes of winning the White House.

In pleadings filed in support of his suit contesting the certification of George W. Bush as the victor in Florida, Gore's lawyers yesterday proposed a compressed court schedule that would allow for a final ruling by Sauls and a state Supreme Court review before a federally mandated Dec. 12 deadline.

"I believe this is the time to count every vote and not to run out the clock," Gore said in a session with journalists outside his official residence in Washington. "This is not a time for delay, obstruction and procedural roadblocks....It's essential to our country that there be no question, no cloud over the head of the next president, whether it be me or Governor Bush."

Lawyers for Bush and Florida Secretary of State Katherine Harris promptly filed papers opposing Gore's request. They argued that the schedule proposed by Gore would violate their rights under state law and that there was no reason to recount the disputed ballots because they were, in the words of Bush lawyer Irv Terrell, "non-votes."

"The fact that we're dealing here with a presidential election doesn't justify suspending due process or normal rules of procedure," said another Bush attorney, Barry Richard, during a news conference in Tallahassee. "The reason that we find ourselves with less time available now is because the Gore legal team made the strategic decision, instead, to seek an extension of time to continue the recounts before they filed their contest."

After a two-hour hearing, Sauls ordered the disputed ballots from Palm Beach and Miami-Dade Counties to be delivered to his Tallahassee courtroom by Friday. He scheduled legal arguments for tomorrow and an evidentiary hearing for Saturday on whether the recount was justified and said it could begin as early as Saturday evening should he rule that it was.

In yet another courtroom in Tallahassee, a circuit judge declined a Bush request to surrender jurisdiction of a potentially crucial case involving disputed absentee ballots in Seminole County. The judge, Nikki Clark, established a brisk schedule under which attorneys must deliver witness lists, conduct depositions and produce relevant documents this week, with a hearing set for Dec. 6.

The case centers on allegations by local Democrats that a Republican elections official improperly allowed other Republicans to fill in legally essential information on thousands of absentee ballot requests from registered Republicans that would otherwise have been rejected because of the missing information. The suit asks the judge to throw out all 15,000 absentee ballots cast in the county-an outcome that would result in a net loss to Bush of nearly 4,800 votes and more than eradicate his 537-vote statewide lead over Gore.

Bush's attorneys, recognizing their potential peril from the suit, have intervened to defend the elections official's actions, saying she merely allowed the Republicans to add technical information that had inadvertently been omitted. Democrats argued that the official was guilty of favoritism and that the applications were illegally altered after being filed.

David Boies, Gore's lead attorney in the case before Sauls, said he might appeal the judge's refusal to order an immediate recount. He expressed concern over the passage of time, saying that "every hour of every day" was now vital to his client's interests.

Despite Sauls' rejection of their request for an immediate recount, Gore's lawyers say they believe his decision to transfer the contested ballots to his courtroom will work in their favor. They believe the judge will inevitably be drawn, whether out of curiosity or a sense of duty, to examine the ballots for himself, which they think will lead to a decision to recount them.

In an indication of how central issues of timing have become, Boies and Richard squabbled at one point over whether the Bush lawyers should be required to file their response to Gore's arguments by noon or 5 p.m. tomorrow. Sauls eventually granted them the later deadline.

"Unless we can make enough progress in this contest to show the certification is wrong, we lose, they win. Delay is on their side," Boies said afterward.

Gore's time preoccupation is born of two considerations, one legal and the other political. The legal concern is a federal law that sets Dec. 12 as the deadline for states to resolve all legal controversies over the selection of their delegations to the Electoral College that actually chooses the next president.

Gore's political concern is that the public will lose patience with his protracted effort to overturn Bush's narrow victory in Florida, which was certified by state election officials on Sunday. The winner in Florida will become the next president.

Two recent polls-for ABC and the Washington Post, taken Sunday, and for CNN and USA Today, taken Sunday and Monday-have suggested that this is already beginning to happen. They found that majorities of those surveyed believed it was time for Gore to concede.

However, a third poll, done for NBC, had better news for the vice president. This survey, which included some interviews conducted after his nationally televised speech Monday night, found the country evenly divided over whether Gore should concede. It also found that a narrow majority of 51 percent thought Bush's proclamation of victory on Sunday was premature given the pending legal challenges.

As the growing armies of lawyers jousted in Florida, they also filed briefs with the U.S. Supreme Court in Washington. The high court will hear oral arguments Friday on Bush's request that it overrule a Florida Supreme Court decision allowing hand recounts of ballots in three counties to go forward.

Bush's brief urged the justices to reverse the Florida court's " unwarranted intrusion" into the election, which it argued had created "the potential for a constitutional crisis." Gore's brief defended the Florida court's action and said the "principles of federalism" argued against any interference from the federal bench.

While the attorneys occupied center stage in the protracted election drama, members of Florida's Republican-controlled Legislature began gathering in the wings in preparation for their moment in the spotlight. The lawmakers yesterday began two days of hearings to lay the groundwork for a possible special session next week to attempt to short-circuit the legal battles and award Florida's 25 electoral votes to Bush under provisions of a rarely invoked federal statute.

Badly outnumbered Democrats urged patience while the court challenges were being heard and complained that the real goal of the Republicans was to guarantee Bush's election. "I certainly hope we are not here simply because the Bush campaign needs a backup plan," said state Sen. Tom Rossin, the chamber's Democratic floor leader.

Republicans retorted that they were merely taking precautions to ensure that Florida would not lose its voice in the Electoral College because of the legal controversies. "I think that there's a resolve building within the Legislature that before we would allow Florida's electoral votes not to count, we would act," said Senate Majority Leader Jim King.

However, King also implied strongly that the Legislature would act if court rulings gave Gore enough votes through recounts to put him on top in Florida.

Any legislation to award Florida's presidential electors to Bush would have to be signed into law by Republican Gov. Jeb Bush, the presidential candidate's younger brother. The governor recused himself from the state Elections Canvassing Commission because of his conflict of interest -but King said he did not believe the governor need recuse himself again if such legislation landed on his desk.

"Whether he's George's brother or not, he's the governor of the state of Florida, and his responsibility would be to sign what this Legislature did with due deliberation," King said.

Kowal reported from Tallahassee, Fireman from Washington. Gaylord Shaw in Washington contributed to this story.

NewsdayChart/Map - Legal Battles: Developments in the Florida Lawsuit surrounding the presidential recount.

STATE SUPREME COURT: A lawsuit over Palm Beach County's "buttterfly ballot" was sent to the state Supreme court after Democrats complained the ballot was too confusing.

SEMINOLE COUNTY: A lawsuit filed by Democrats to have absentee ballots thrown out is moved to Leon County Court in Tallahassee.

OKALOOSA, POLK, ORANGE, HILLSBOROUGH AND PASCO COUNTIES: George W. Bush's campaign files suits saying military absentee votes were improperly thrown out.

MIAMI-DAD: Democratic activist files a federal lawsuit saying state certification before Miami-Dade County could complete a manual recount disenfranchised minority voters.

PALM BEACH, MIAMI-DADE AND ANSSAU COUNTIES: Vice President Al Gore files a lawsuit to contest certification results in state court.