Florida Legislators Set Special Session

On the eve of a climactic Florida Supreme Court hearing, state Republican lawmakers Wednesday forged ahead with a special session to short-circuit Democratic legal challenges and ensure George W. Bush the White House.

With the tacit approval of Bush’s younger brother, Florida Gov. Jeb Bush, legislators scheduled the unprecedented session for Friday.

“It would be irresponsible not to put a safety net under our votes,” said state Senate President John McKay, who insisted he was acting on a nonpartisan basis. “The current slate of electors may be tainted--and we need to make sure the voters of Florida are not disenfranchised.”

The move came as attorneys for the two sides prepared for yet another dramatic showdown this morning before Florida’s high court, which is hearing Al Gore’s appeal to overturn Bush’s official victory.

In a brief filed Wednesday, attorneys for the vice president asked the high court to order a quick recount of disputed ballots and declare him president-elect if the votes overcome Bush’s 537-vote lead.

“Time is of the essence in this matter,” Gore’s attorneys said in their 50-page brief, which claimed “undisputed evidence shows . . . that a manual review of contested ballots was necessary to ascertain the voters’ intent.”

But attorneys for Bush said the uncertainty over the Nov. 7 election had gone on long enough and it was time for the high court to put a definitive end to the legal wrangling.

Elsewhere, developments continued on several fronts.

* In Atlanta, the U.S. appeals court rejected Bush’s claim that it was unconstitutional for Florida to allow hand recounts in just a few Democratic counties. If they choose, Bush’s lawyers can appeal that issue again to the U.S. Supreme Court.

* In Tallahassee, trial judges heard testimony on Democratic claims that Republican officials in Seminole and Martin counties gave unfair special treatment to Republicans in handling absentee ballot applications.

* In Washington, Gore made another foray to the White House on Wednesday, spending several hours on vice presidential business but making no public statements.

Gore was expected to keep a low profile for a bit longer. “We made a conscious decision that we wouldn’t be out there talking” while the trials were taking place, deputy campaign manager Mark D. Fabiani said.

* In Austin, Texas, Bush continued work on his intended administration, meeting with Stanford University scholar Condoleezza Rice, his likely pick for national security advisor.

He sought to send a firm message to would-be provocateurs at this time of relative political uncertainty. Bush warned terrorists that the election turmoil is not an opening for them to act, saying they would face a “chilling” response from his or any administration.

Bush also said he had “pretty well made up my mind” on who should serve in his administration but as yet has made no formal offers. He said he was waiting for an “appropriate moment to name those people.”

Jeb Bush Says He’s Not Offering Advice

Bush’s brother, and fellow Republican, spoke to reporters in Tallahassee just hours before the special legislative session was announced. “I think they’re trying to figure out what the proper thing to do is and I’m just going to let them do it,” Jeb Bush said. “They don’t need my advice any more.”

But then he went on to suggest that lawmakers “ought to be focused on their constitutional duty in a time of uncertainty.”

The special session was a dramatic step GOP lawmakers have pondered for weeks.

McKay and House Speaker Tom Feeney signed the proclamation Wednesday afternoon, saying the ongoing court fights in Florida imperil the state’s 25 electoral votes. They asserted lawmakers were duty-bound to act as a “backstop” to ensure Florida would not be excluded when the electoral college meets Dec. 18.

Two hours before the decision was announced, 3,000 demonstrators massed for a rally in front of the Capitol, many waving anti-Bush signs and chanting at the top of their lungs: “No special session! No special session!” The slate of electors McKay and Feeney are proposing to send to the electoral college are the same 25 Bush delegates certified on Nov. 14.

McKay and Feeney are among the 25 Bush delegates, but they repeatedly denied partisan motivations. “Yes, I voted for George Bush,” McKay said. “But I’m not representing the Republicans. I’m representing the people of Florida.”

Angry Democratic lawmakers scoffed at that claim.

“Let’s face it,” said Lois Frankel, the House Democratic leader. “When it comes to picking the leader of the free world, nobody’s going to leave it up to Tom Feeney and John McKay. They’re clearly taking their orders from the Bush campaign and that’s an insult to the voters of Florida.”

Frankel vowed to continue fighting, but acknowledged there is little Democrats can do, since they are outnumbered, 77 to 43, in the House and 25 to 15 in the Senate. Advisors to Gore, however, said they may sue to block the GOP lawmakers.

Greg Simon, a senior Gore advisor, said once the lawmakers convene “that gives anyone standing to file an injunction” to block the session. “There’s no legal basis for them to step in and usurp the will of the people,” he said.

The crux of the Republican argument for getting involved is a section of federal law that says election rules cannot be changed after election day. Republicans say the rules were changed by a Florida Supreme Court decision allowing hand counts to go on after the statutory deadline and by adjusting the standards for examining ballots without a clear-cut preference.

Gore Attorneys See Tighter Race

The move toward a special session came as Gore lawyers argued that the election is even closer than Bush’s certified 537-vote margin suggests.

In a brief filed with the Florida Supreme Court, Gore’s lawyers said by their count only 103 votes separate the vice president and Bush.

If roughly 10,000 disputed ballots in Democratic-leaning Miami-Dade County were tallied and another 3,300 were recounted in Palm Beach, Gore would probably go ahead, his lawyers said.

So far, the state high court has been the favorite forum of Gore’s legal team. It has long held to the liberal view that seeking the true “will of voters” can overcome technical rules and strict deadlines. And on Nov. 22 it extended the time for hand recounts well past the state’s Nov. 14 cutoff.

But many legal experts say they doubt that the state justices, under the pressure of time and politics, will dramatically intervene once again to revive Gore’s fading hopes. On Thanksgiving Day, the state justices turned away an emergency appeal from the Democrats that sought to force Miami-Dade to finish its aborted hand recount.

Today, Gore’s lawyers will be urging the state justices to do now what they refused to do then.

In their final briefs, Bush’s lawyers argued that it is too late, and profoundly unwise, to reopen the election contest just six days before the state is supposed to choose its 25 electors.

Reviving Gore’s case and ordering more vote counts “would ultimately lead to massive uncertainty and discord,” Bush’s lawyers told the Florida judges. “The litigation would continue, key federal legal questions would be unresolved and subject to appeal, and the public’s distrust in the ultimate outcome would grow,” they said.

At several points in their brief, Bush’s lawyers pointedly raised federal constitutional issues, a none-too-subtle reminder that the U.S. Supreme Court is not likely to tolerate an adventuresome ruling by the state judges.

On Monday, the high court voided the state court’s Nov. 22 ruling. The justices sent the case back to Florida so justices could clarify their ruling.

If this were an ordinary election contest, Gore’s lawyers would have a strong argument that could sway Florida’s high court, legal experts said. They assert that a trial judge blundered by using the wrong legal standard in deciding Gore’s case.

After hearing the witnesses, Leon County Circuit Judge N. Sanders Sauls ruled against Gore on Monday and refused to order more hand recounts. Sauls said the vice president had failed to show a “reasonable probability” that he had indeed won the election. Sauls relied on a 1982 appeals court precedent as setting this high threshold for postelection challenges.

But in 1999, the Florida Legislature adopted a far more liberal standard. Florida law now says that unsuccessful candidates are entitled to contest the outcome whenever they can show that enough votes were excluded so as “to place in doubt the result of the election.”

Bush’s brief takes sharp issue with the contention that Sauls applied the wrong legal standard. “Although the Florida Legislature amended” the state’s election contest law, “the legislative history makes clear that the Legislature did not intend a ‘comprehensive reform’ . . . but merely codified existing contest case law,” the brief states. Bush’s attorneys added, “the ‘reasonable probability’ standard was part of the existing case law, and continued in effect after the [1999] amendment.”

Gore’s lawyers say there is plenty of doubt about who really won Florida

On Nov. 26, Republican Secretary of State Katherine Harris certified Bush as the winner by 537 votes out of nearly 6 million cast in the state.

But according to the Gore brief, this final count did not include 215 votes from Palm Beach County’s partial hand recount, another 168 votes for Gore from Miami-Dade’s aborted recount and 51 votes for Gore from Nassau County’s state-mandated machine recount.

When added together, these 434 votes would reduce Bush’s margin to 103 votes, according to Gore’s brief.

But in their 50-page brief, Bush’s lawyers basically said that enough is enough.

At this stage of the case, both the Democrats and Republicans appear to have reversed themselves on the question of the powers of local election boards.

Two weeks ago, Gore’s lawyers defended the authority of the local officials when Miami Dade planned a full hand recount. Bush’s lawyers called their actions illegal.

This week, Gore’s lawyers said Miami-Dade officials acted illegally when they ceased their hand recounts and Bush’s lawyers came to the county’s defense.

The Miami-Dade board’s move to call off the recount “was clearly correct as a matter of law and was an appropriate exercise of its discretion,” Bush’s team said. Time was running out, and “a governmental body need not engage in a futile act.”

*

Times staff writers Mark Z. Barabak, Michael Finnegan, Scott Gold and Henry Weinstein contributed to this story.

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Day 29: A Summary

Developments Wednesday in the unsettled presidential election:

*

Courts

* In two Tallahassee, Fla., courtrooms, Democrats challenged a total of 25,000 absentee ballots in Seminole and Martin counties, charging that Republicans were allowed to illegally correct mistakes on ballot applications.

* In Atlanta, a federal appeals court rejected a George W. Bush petition to exclude from Florida’s election total the results of hand recounts. The recounts cut Bush’s lead over Al Gore by nearly 400 votes to 537.

* In Tallahassee, attorneys prepared for this morning’s hearing before the Florida Supreme Court, where Gore seeks to be declared the winner of the state’s presidential election or obtain a ruling that the court itself will count disputed ballots.

*

Florida Legislature

* In Tallahassee, Republican leaders announced that a special session of the part-time Legislature will convene Friday to ensure the appointment of the original slate of electors pledged to Bush.

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The candidates

* In Austin, Texas, Bush continued to work on his presidential transition, appearing for cameras with Stanford University scholar Condoleezza Rice, who is expected to become his national security advisor.

* In Washington, Gore spent several hours working at the White House and the rest of the day at his home.