Gore Asks Judge to Resume Count

In an unprecedented lawsuit, attorneys for Al Gore tried to convince a county judge Saturday to throw open the presidential race by resuming the vote counting in Florida and ordering a canvass of thousands of disputed ballots.

Lawyers for George W. Bush accused the vice president of acting unlawfully--and put up new hurdles to a swift resolution of the increasingly convoluted case.

Even as justices of the U.S. Supreme Court spent a rare weekend at work in Washington weighing the larger issues raised by the election impasse, the main action took place in Tallahassee, before Leon County’s affable Judge N. Sanders Sauls.

In a nine-hour session broadcast nationwide, grave constitutional issues yielded to a dry discussion of statistics and voting machinery as the Gore team questioned the validity of last week’s decision certifying Texas Gov. Bush the winner of Florida by 537 votes.

“The certified results reject a number of legal votes and include a number of illegal votes,” Gore’s lead attorney, David Boies, asserted.

He asked Sauls to allow a belated tally of roughly 13,300 ballots cast in Miami-Dade and Palm Beach counties and to toss out 51 votes awarded to Bush in Nassau County, citing a variety of irregularities.

Bush lawyers sharply objected, saying that Gore is selectively scouring Democratic pockets of the state for the votes he needs to beat Bush. They argued that additional recounts would violate state law.

Gore “is attempting to begin this court down a path that inevitably leads to a destination he must arrive at in order to win,” said Barry Richard, the lead attorney for Bush. “That destination is unreasonable and contrary to Florida law.”

The trial is set to resume this morning.

State lawmakers, meantime, sent mixed signals about how quickly they might step in to award Bush Florida’s 25 electoral votes--a hedge in case a court overturns his certified victory. Kim Stone, a spokeswoman for House Speaker Tom Feeney, said that GOP legislative leaders soon would issue a proclamation setting a special session for Wednesday.

But hours later, state Senate President John McKay, a Republican who must sign the proclamation before the special session can be called, said he has doubts about taking such a brash, unprecedented step.

“We must proceed with the utmost caution,” McKay said in a prepared statement. “There are so many uncertainties.”

Without Florida, neither candidate has the 270 electoral college votes needed to become the nation’s 43rd president.

The two main principals kept far removed from Saturday’s maneuvering.

Gore spent the day in Washington, lunching with actor Tommy Lee Jones--his college roommate and a featured speaker at last summer’s Democratic National Convention in Los Angeles.

Bush met at his Crawford, Texas, ranch with Senate Majority Leader Trent Lott of Mississippi and House Speaker J. Dennis Hastert of Illinois. Bush said he intends to push for an ambitious tax cut once he takes office, undeterred by the close election and voters’ distinct lack of enthusiasm for the plan.

And a poll by Newsweek magazine suggested that Americans are losing patience with the prolonged postelection limbo.

A 53% majority continued to say it is more important to remove all reasonable doubts about the Florida vote than to resolve the controversy as quickly as possible. But that figure is down from 61% in a survey done two weeks ago and 72% in a poll conducted immediately after the Nov. 7 election.

In Tallahassee, Saturday’s court hearing was the biggest thing to hit the state capital since the Florida State-University of Florida football showdown two weeks ago.

Sauls’ third-floor courtroom was jammed with more lawyers than seats to hold them, an overflow audience of spectators and numerous photographers and television crews lining the walls.

Gore’s side says that tabulation machines in Miami-Dade County failed to register a presidential preference on roughly 10,000 ballots and that 3,300 more ballots from Palm Beach County should be reviewed because election officials were overly strict in deciding which imperfectly punched ballots to tally.

Boies asserted that, under a proper count, Gore would pick up at least 2,000 votes in Miami-Dade County alone--more than enough to overtake Bush.

The Bush campaign raised new objections Saturday, saying that if any retabulations occur they should include more than 770,000 ballots cast in Volusia and Broward counties, where Gore gained in manual recounts accepted as part of the state’s certified results.

“If he is going to start counting votes, we think he should look at other counties as well, where too many votes were counted for Mr. Gore and not enough for Mr. Bush,” said Phil Beck, an attorney for the GOP nominee.

The request seemed part of a sustained effort by the Bush camp to prolong matters, knowing that time is crucial for Gore.

Separately, Bush’s lawyers also sought to negate a lawsuit filed by Democrats against Seminole County that asks for about 15,000 absentee ballots to be tossed out because of allegations of Republican tampering. Bush attorneys asked Sauls to certify totals reported there as “legal and proper.”

Once the hearing started Saturday, Gore’s first witness was Kimball Brace of suburban Washington, a gray-bearded expert on voting machines who has worked on projects for both major political parties. He has a degree in political science, not mechanical engineering--a point important to the Bush team, which noted that he had never designed or sold voting machines.

But during the hearing, Brace explained how punch card machines are designed and how chads--the little paper tabs--are supposed to fall off when a person votes. But, he said with notable understatement, “it doesn’t always work that way.”

He said he inspected voting devices in Miami-Dade and Palm Beach counties and found defects that could have caused dimples rather than clear holes for votes. He also found problems with the type of stylus--or hole puncher--that was used. “If they’re not pressed all the way, they are likely to cause dimples” rather than holes.

He noted that the voting devices had not been cleaned since the midterm election in 1998, although they should have been. A buildup of chads in the machines, he said, “could cause dimples” in the ballots and make it hard for the stylus to go through the ballot.

Under questioning from the Gore side, Brace insisted that manual vote counting provides a more accurate tally than machines. “It is really the only way to absolutely know for sure how many votes were cast for each candidate. And when you have a very, very close election, that is the key.”

Brace held to that view even under aggressive cross-examination. He did, however, say that if a candidate was behind in this close of an election, he should call for a recount of the entire state--not just certain portions, as Gore has done.

Brace also conceded that dimpled ballots could have resulted from mishandling of cards. “If I were to rub my finger across it, that could create an indentation and that obviously should not be counted as intention to vote.”

He was followed on the stand by the Gore team’s second and final witness, Nicolas Hengartner, an associate professor of statistics at Yale University.

Hengartner said that 2.2% of the ballots in Palm Beach County turned out to be undervotes--or ballots reflecting no presidential preference--which he said was a “very large difference” from other counties. How large, asked Gore attorney Jeff Robinson.

“The probabilities that [the undervotes] happened are very extreme,” Hengartner said. “It is very remote. I would say the chances are less than winning the lottery.”

But under cross-examination by Beck, Hengartner acknowledged that he had studied only the undervotes in the presidential contest and not in other races in Florida. Therefore, he added, “I have no clue” whether the undervote problem also occurred in the other races.

“And that is a fundamental flaw with your study,” Beck contended. Hengartner said he sought more statistics and other data from the office of Florida Secretary of State Katherine Harris, but “she was less than helpful.”

Harris was co-chairwoman of Bush’s campaign in Florida, and on Nov. 26 she certified him as the winner of the state’s 25 electoral votes.

The Bush side called just two witnesses before the proceedings recessed for the day.

Charles Burton, a Palm Beach County judge and Democratic member of the election canvassing board there, testified on the standards used in the county’s hand recount. He said the rules, adopted in 1990, stipulated that “if it is impossible” to determine the intent of a voter, the ballot was not to be counted. “An indentation is not evidence . . . of a valid vote,” Burton said.

Still, he conceded, there were some ambiguities. He noted that a local judge had ordered the board to use its “discretion” in deciding which ballots to accept or reject, and that’s what the board members did.

“Three Democrats,” Bush attorney Fred Bartlit pointed out.

“Three people trying to do the best they can,” Burton responded.

Bush’s second witness was Richard Frank Grossman, a rubber products expert, who was called to debunk the Gore side’s theory that the rubber inside the voting machines was crumbling and caused the dimpled and dangling chads on ballots. But Grossman admitted under cross-examination that he had never examined the voting devices in Miami-Dade or Palm Beach counties.

Sauls had hoped to complete the trial in a single day, mindful of a Dec. 12 federal deadline for Florida to seat its 25 electoral college members, who will cast the ballots that install the nation’s next president.

At one point, the judge appeared frustrated when Brace’s testimony was repeatedly objected to by Bush lawyers. “If this is going to take an hour and a half for each witness, we’re never going to get this done,” Sauls lamented.

As it turned out, Brace spent more than two hours on the stand, and Sauls recessed the hearing after listening to just the four witnesses.

When the nation voted Nov. 7, few could have guessed the outcome still would be uncertain come December. But Saturday brought the perfect confluence of political hostility and seasonal festivity, all within a few blocks.

As attorneys grappled inside Sauls’ courtroom, town officials gamely pressed ahead with Tallahassee’s annual Winter Festival, flipping a switch at City Hall that set aglow tens of thousands of white lights on the mossy, sprawling trees that drape over downtown.

The festival included a rocking-chair endurance contest and jingle bell run, in which hundreds of runners dressed themselves and their dogs in holiday garb.

For some Americans, any distraction would be welcome at this point.

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Times staff writer Scott Gold contributed to this story.