Gore Faces Two Major Hurdles, Experts Say

In his last-ditch appeal to the Florida Supreme Court today, Al Gore will argue that the only way to prove he is the actual winner in the state is to count the roughly 14,000 disputed ballots from Miami-Dade and Palm Beach counties, sources close to the vice president say.

In his stinging ruling Monday, Leon County Circuit Judge N. Sanders Sauls said Gore had failed to demonstrate “a reasonable probability” that, even if further hand counts were ordered, the election result would be reversed.

But Gore’s attorneys are prepared to argue that Sauls’ conclusion was wrong--in part because he failed to count any of the ballots that the vice president contends would show that hundreds of potential votes were excluded from the official Nov. 26 tally that certified George W. Bush the winner.

“How can he hold the votes aren’t there if he hasn’t picked up a single vote and looked at it?” one senior Gore legal advisor asked.

As Gore prepares the appeal that may represent his last best hope of overtaking Texas Gov. Bush, analysts say he must overcome two lines of defense that Sauls constructed around his opinion.

The outer wall is a legal argument: Sauls’ conclusion that under the Florida contest procedures, the state courts can overrule the actions of local canvassing boards--for instance by ordering the further recounts that Gore is requesting--only if the local officials abused their discretion.

The inner wall is a factual contention: that even if the courts were to take all the steps that Gore has urged--including authorizing new recounts in Miami-Dade and reexamining 3,300 disputed ballots in Palm Beach--the vice president did not demonstrate the “reasonable probability” that he would gain enough votes to erase Bush’s lead.

Bush Team Ready to Fight New Recounts

Some legal experts believe this second conclusion in Sauls’ opinion represents the greatest hurdle for the vice president, because higher courts have less discretion to overturn lower courts on matters of fact than on questions of law.

“Even if they cross that threshold and reverse him on the legal question of how much deference to give canvassing boards, they still have to reverse him on the fact question--and that’s [less likely] to happen,” said Rob Atkinson, a law professor at Florida State University.

Moreover, Bush attorneys say flatly that if the Florida Supreme Court authorizes new recounts, they are prepared to challenge such a decision before the U.S. Supreme Court as an impermissible effort to change the election laws after election day. Bush officials interpret Monday’s U.S. Supreme Court decision--which sent back to the Florida court its earlier ruling extending the deadline for manual recounts--as a shot across the bow, warning the state court not to press too far with actions that can be interpreted as rewriting the rules on the fly.

“We have this open invitation from the U.S. Supreme Court to appeal,” one senior Bush attorney said. “When the state Supreme Court took their original action [extending the deadline for manual recounts], they thought they had a blank field to run on. They now see in about as vivid terms as you are ever going to find in American jurisprudence that they are not alone out there.”

So, in addition to all the legal questions confronting it, the Florida high court now is facing a political--and even psychological--question: Are these seven justices prepared to challenge both a lower court openly dismissive of Gore’s claim and a high court watching carefully to see whether they overreach?

Gore’s attorneys say they are not so much asking the state Supreme Court to reverse Sauls as they are requesting it to reexamine their threshold argument in the case: that enough legal votes have been excluded, and enough illegal votes included, in the certified result to “place in doubt the result of the election.”

Yet to reach that conclusion, the state court must decide that Sauls misread the law in his own judgment rejecting Gore’s contest. And most local observers believe Gore will face a steep incline in making that case--particularly given how Sauls tried to root his decision in the empirical evidence presented to him.

“The problem there is a matter of law; there is not much the state Supreme Court can do,” Atkinson said. Sauls “was very careful . . . to insist that he was making careful findings of fact. And trial courts--when they decide matters of fact, as opposed to law--are only reversible on very narrow grounds.”

Despite those difficulties, Gore advisors see two primary vulnerabilities in Sauls’ decision.

One is his acceptance of the Bush attorneys’ argument that he must defer to the judgment of the local canvassing boards unless they abuse their discretion. Gore’s camp argues that in contest proceedings, the courts need not display such deference if the canvassing boards have refused to take actions that could affect the outcome of the election.

In particular, Gore is prepared to argue that Sauls erred by insisting the Miami-Dade canvassing board was within its authority not to complete the manual recount it began last month; and they maintain he misread Florida law by arguing that the Palm Beach canvassing board had the final word on which ballots contained evidence of “voter intent” to support Bush or Gore.

On both counts, Bush attorneys say the courts can intervene only if they find that the local canvassing boards abused their discretion. And they maintain that the state Supreme Court will face a particularly high hurdle in ordering Miami-Dade to complete its count now, when it refused to do so in an earlier challenge brought by Gore last month.

“They would essentially have to reverse their Thanksgiving Day decision, which would just look terrible,” the senior Bush attorney said. Such a move, the attorney argued, would virtually invite intervention by the U.S. Supreme Court.

The second pillar of Sauls’ ruling was his conclusion that Gore had failed to demonstrate a “reasonable probability” that he could gain enough votes to overcome Bush’s lead.

That aspect of the decision was the most stunning for Democrats, who believe that the five remedies Gore requested from the courts, if granted, would easily provide enough votes to overcome Bush’s official 537-vote lead.

In his contest, Gore asked that the results of the partially completed hand counts in both Miami-Dade and Palm Beach counties be included in the final statewide tally; that would have brought him an additional 346 votes. He also asked Sauls to reverse Nassau County’s decision to certify its results from election night rather than its first automatic recount; that would have brought Gore an additional 51 votes.

Gore also argued that he could have acquired hundreds of new votes by finishing the hand count in Miami-Dade, and by reassessing some 3,300 ballots on which the Palm Beach County canvassing board said it found no evidence of “voter intent.” If the court had granted those two requests, Gore aides believe, they could have gained 500 to 1,200 more votes--for a total net gain of 900 to 1,600 votes.

But Charles Burton, chairman of the Palm Beach canvassing board, insisted in his testimony that those disputed ballots lacked clear evidence of voter intent. And Gore ran into trouble on Miami-Dade when his attorneys extrapolated from the results of the partial hand recount there to claim that a full measure would give him as many as 600 net new votes; Bush attorneys effectively argued it was wrong to make such a projection because the early stages of the recount focused on Democratic precincts.

Gore Team Failed to Prove Case, Expert Says

David Cardwell, a former Florida election commissioner, says that while common sense suggests the contest could have brought Gore enough votes to overtake Bush, the vice president’s attorneys failed to prove that case in court. “What they didn’t do in court is introduce enough evidence to back up their allegations and complaints,” he said.

Gore cannot introduce new factual evidence or testimony in the appeal to the state Supreme Court; instead, aides say, his team will argue that Sauls failed to consider the crucial evidence in the case by concluding the votes were not there for Gore without actually looking at the ballots themselves.

That analysis, they believe, would give the state Supreme Court the basis to overturn Sauls’ conclusion on legal, rather than factual, grounds.

Although uneasy about predicting the direction of a state court that ruled so emphatically for Gore last month, Bush attorneys remain cautiously optimistic that Sauls effectively insulated his decision from reversal by reaching the factual conclusion that the vice president simply did not prove that he could win enough votes to overtake Bush.

“It is a hugely important issue, because . . . it means the state Supreme Court would be going into the trial record to overturn the judgment of the trial court, which is something they never do,” the attorney said. “And what are they going to find in the record to do that?”

From the Gore camp, the answer to that question will be simple: the long-disputed ballots from Miami-Dade and Palm Beach counties themselves, the same ballots that the vice president desperately wants to see counted before the clock runs out on his hopes.

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Vote Calendar

More than four weeks after the election, the battle for the presidency marches on.

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DECEMBER

Today: Trials begin in Tallahassee, Fla., regarding altering of absentee ballot applications in Martin and Seminole counties.

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Thursday: Florida Supreme Court will hear Al Gore’s appeal of Judge N. Sanders Sauls’ ruling barring further recounts.

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Dec. 12: Deadline for Florida to finalize its election results and certify its electors.

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Dec. 18: Members of electoral college--the electors--cast their votes for president and vice president.

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JANUARY

Jan. 6: Results of electoral college vote read to joint session of Congress.

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Jan. 20: New president and vice president are inaugurated.

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Tune In to Florida Supreme Court

Florida’s Supreme Court justices will hear arguments Thursday in Al Gore’s election appeal. The hearing begins at

7 a.m. PST and will last at least one hour.

Unlike the U.S. Supreme Court, Florida’s court allows its proceedings to be broadcast live. Most cable news networks are expected to carry the hearing, as are National Public Radio stations and some Web sites.

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A sampling:

* TV: CNN, Fox News Channel, MSNBC, C-SPAN

* Radio: KCRW (89.9 FM)

* Internet: https://wfsu.org/gavel2gavel/