Uncounted Votes Stymie Justices

Suppose there were 9,000 uncounted votes and the final margin separating the two candidates was 103 votes. Must those votes be counted?

That was the question lawyers for Vice President Al Gore presented squarely to the Florida Supreme Court on Thursday.

And even at this late date, the state justices sounded as if they were not quite ready to answer with a flat “no” and thereby leave it to history to learn who really won the disputed Florida race.

“No one has looked at the 9,000 votes [in Miami-Dade County] that you’re talking about,” Justice Harry Lee Anstead said near the end of the oral argument, voicing the main claim put forth by Gore’s lawyer David Boies.

Yet, as Anstead and several of his colleagues noted, Florida law says that the certified vote can be contested if the “number of legal votes [that were rejected] is sufficient to place in doubt the result of an election.”

By that liberal standard, Gore and his lawyers appeared to have made a strong case that the Florida race may not be over after all.

Thursday’s oral argument in Tallahassee made for another surprising day in the monthlong legal battle.

Going into the second state Supreme Court hearing in the presidential election dispute, most legal experts predicted that the vice president had reached the end of the line.

Deadline Date Is Days Away

The count, the recount and the partial manual recounts all had given Texas Gov. George W. Bush a narrow margin of victory, as Republican leaders have pointed out repeatedly.

Leon County Circuit Judge N. Sanders Sauls had heard the trial evidence and rejected Gore’s challenge to the result. The Tuesday deadline for choosing Florida’s electors is fast approaching. And Florida’s Republican-controlled Legislature today begins meeting in a special session convened to confirm Bush’s victory.

Nonetheless, Thursday’s argument went surprisingly well for Gore’s side. By its end, the justices seemed to be turning their attention to the daunting practical questions of counting thousands of disputed ballots in just a few days.

The high court met into the evening Thursday without issuing a ruling. The justices are expected to decide quickly, possibly as early as this morning.

Speaking for Gore, Boies methodically laid out his case that Florida’s liberal election laws are designed to make sure that all the ballots are counted in a close race. In his brief, he urged the justices to credit Gore with 215 votes from Palm Beach County’s recount, another 168 from the partial recount in Miami-Dade and 51 votes that Gore picked up in the machine recount in Nassau County. With these additions suggested by the Democrats, the outcome is indeed very close. Bush would maintain a lead of 103 votes of the nearly 6 million cast in Florida.

Meanwhile, Barry Richard, Bush’s lead lawyer, struggled to persuade the justices that the vice president had no remaining claim of unfairness.

“We had an absolute failure on the part of the plaintiffs here,” Richard said of Gore’s case. It does not matter what legal standard is used, Richard insisted, since there “is virtually no evidence in the record” that would justify a ruling for Gore.

Justice Barbara Pariente interrupted to object. The high court has no power to “review votes that were properly cast but never counted?” she asked. She was referring to Gore’s claim that the machine tabulators in Miami-Dade County failed to register a presidential vote on more than 9,000 ballots.

Justice R. Fred Lewis weighed in too, pointing out that challengers must only show that the uncounted ballots create “a doubt as to the result.”

Not true, Bush’s lawyer replied. The challengers must “prove there’s something wrong with some machine somewhere,” Richard said. Since Gore’s lawyers did not show the tabulating machines had failed, they have no case, he insisted.

Still another justice interrupted to object. What if a “mistake was made through no fault of the voter?” asked Justice Peggy Quince. Florida law seems to say that challengers need only show “the rejection of votes which may put in doubt the result,” she said.

If the case (Al Gore vs. Secretary of State Katherine Harris) were an ordinary election dispute, the tenor of Thursday’s argument would indicate a likelihood that the state justices would side with the plaintiff and demand a tally of the uncounted votes.

But the case is anything but ordinary and for that reason many election law experts who listened to the argument still believe that the high court will reject Gore’s final appeal.

“I felt Gore gained ground during the argument,” said UCLA law professor Daniel Hays Lowenstein, “but I’m skeptical that he gained enough to prevail.”

While the law may favor Gore’s side, the practical and political side of the case weighs against him, Lowenstein said. “There are so many practical problems that go against Gore. And it would be very awkward for these justices. They have already stuck out their necks once for the Democrats. They would be sticking them out much further this time,” he said.

Loyola law professor Richard L. Hasen, another election law expert in Los Angeles, predicted that the state justices will go against the vice president this time. “There are just so many hurdles for Gore,” he said. For example, the justices may prefer a hand recount of the disputed ballots in Miami-Dade but, if so, fairness may dictate a full state recount. And it is too late for that.

University of Florida Law School Dean Jon Mills said it is always dangerous to speculate based on oral arguments. But, he said, the justices sounded as though they may be divided. “The law may be on Gore’s side, but there also may be no remedy,” he said.