Presidential Win Could Turn on Legal Longshot in 2 Fla. Counties

Publicly, Democrats say they are not even involved in the cases, and Republicans scoff, painting the pair of lawsuits as an emblem of desperation.

But the lawsuits claiming that election supervisors colluded with the state Republican Party to fix flawed absentee ballot applications in two Florida counties survived yet another challenge Tuesday. This morning, both cases go to trial here in an extraordinary legal marathon that could cast the presidential election back into a sea of uncertainty.

The cases are longshots, but if they are successful, they could eradicate 25,000 votes in Seminole and Martin counties and give Al Gore a net gain of almost 8,000 votes. That would grant him the election just as Texas Gov. George W. Bush seems poised to take the White House, and just as every other legal door is slamming in the vice president’s face.

Privately, both sides say this is a pivotal day. Democrats, despite a series of crippling legal setbacks, will not consider a concession unless they lose these cases. Republicans can’t quite claim victory until they have won them. And the state Legislature, dominated by the GOP, won’t abandon the idea of seizing control of the election with an unprecedented special session until these cases are put to rest.

The lawsuits will play out in front of two judges named Lewis and Clark.

At 7 a.m. EST, Circuit Judge Terry Lewis, a soft-spoken scholar from tiny Live Oak who dabbles in mystery writing and drives a pickup, will launch the trial contesting Martin County’s 9,773 absentee ballots.

At 8:15 a.m., the lawyers will scurry into the elevator and ride down one floor of the Leon County Courthouse, where Circuit Judge Nikki Ann Clark, who grew up amid race riots in Detroit to become the first African American judge in the region, will hold the second trial. Once Clark is done, the lawyers will have half an hour to make their way back upstairs, where Lewis has vowed to press on into the night until he is done too.

Clark, many believe, is the wild card in the scenario. While Lewis is seen as more conservative and less likely to overturn the election, Clark “seems to petrify the Republicans,” said Kenneth Gross, an election law attorney in Washington and former head of enforcement for the Federal Election Commission. Republicans have tried repeatedly to get her removed from the case, to no avail.

Clark was recently turned down for an appeals court seat by Florida Gov. Jeb Bush--the Texas governor’s brother.

The notion that Clark might not shy away from throwing out thousands of votes--most of which were cast for Bush--has earned the Seminole County case sleeper status among both Democrats and Republicans.

“I think it’s Gore’s last, best shot,” said Nat Stern, a Florida State University law professor and a constitutional law expert.

What has become a significant case with conspiratorial undertones began with a get-out-the-vote campaign both parties embarked on weeks before the Nov. 7 election.

As the Florida vote became more critical in the election, Democrats and Republicans sent tens of thousands of postcards to people who were expected to support their candidate--but weren’t necessarily expected to vote. The postcards offered an easy method of requesting absentee ballots--with only the voter’s signature. Once a form was sent back to the election office, each applicant would receive an absentee ballot.

The Republicans relied on a sophisticated database, dubbed Victory Suite and containing extensive information on every likely voter in Florida, according to a deposition by a Republican campaign official.

But there was a hitch--a serious one. A printer hired by the GOP mistakenly substituted voters’ birth dates for voter identification numbers--one of the pieces of information the state requires on an absentee ballot application before a ballot can be sent.

Republicans quickly realized the mistake after voters began calling, wondering why election officials had never mailed their ballots. The GOP mobilized, sending lieutenants to at least two Florida counties.

In Seminole and Martin counties, the ballot applications had been declared invalid because of the printing error. Election officials allowed them to be corrected by the GOP workers--and resurrected.

In Seminole County, north of Orlando, Fla., the election supervisor--herself an elected Republican--allowed at least two representatives of the state Republican Party to use a back room of her office for more than two weeks. There, hunkered down with laptops containing the Victory Suite database, they repaired the application forms for nearly 2,000 voters--almost all of whom voted for Bush.

In one deposition taken in the case, one of the election supervisor’s aides told attorneys she was “surprised” that an outsider was working in the election office, but thought little of it.

In nearby Martin County, election supervisor Peggy S. Robbins, also an elected Republican, allowed Republican officials to remove absentee ballot request forms--by then already public records--from her office. The Republicans returned them days later, containing the corrected information.

In Seminole County, election officials assisted the Republican officials by putting the faulty ballot application forms aside in a separate shoe box, and the GOP officials were not supervised while they handled the ballot forms.

Seminole County election supervisor Sandra Goard testified during her deposition that she still has no idea of the identity of two Republican officials who used her office.

Michael Alan Leach, the state Republican Party’s North Florida regional director, said that’s not true, according to his deposition. Leach told attorneys that he was assisted in fixing flawed absentee vote application forms by two men--Carlos Melendez, another Republican Party regional director, and a man known as “Waldy.”

“She knows both Waldy and Carlos, from what I understand, personally,” Leach testified during the deposition.

“Did you observe her speaking with either of them when they came in?” asked Gerald F. Richman, the lead attorney bringing the case on behalf of a Democratic voter in Seminole County.

“If she would come back into the back, she would [offer] initial pleasantries . . . ‘Hello, how are you.’ ”

“So, she clearly knew who they were?” Richman asked.

“Clearly.”

The lawsuits were filed by Seminole County resident Harry Jacobs and Martin County resident Ronald Taylor. Both men are Democratic activists.

In both counties, Democrats say they were not afforded the same opportunity to correct disqualified ballot applications.

Democrats contend the actions of Republicans amount to nothing short of election fraud. And, because votes are secret and it’s impossible to sift the absentee votes that resulted from altered applications from the rest of the stack, attorneys for Jacobs and Taylor have demanded that a judge throw out all of Seminole County’s 15,000 absentee votes. Two-thirds of those votes were cast for Bush.

Attorneys also are requesting that all 9,773 absentee votes be thrown out in Martin County.

The cases are legally problematic. There is no evidence, for example, that any of the votes themselves were improperly cast--just that the ballot application forms may have been improperly filled out.

And although Florida law says that only a voter, an immediate family member or a guardian can fill out an absentee ballot, the law does not explicitly say that a third party can’t help fill out some information, said Bush attorney Barry Richard.

But perhaps the greatest impediment to the cases is that the only available remedy, if judges agree that votes were tainted, would be stunning: overturning the presidential election.

“It would have national reverberations,” Stern said. “The Florida Supreme Court [which would hear the case on appeal] would be loath to have one violation--and a technical violation at that--reverse the outcome of the national election.”