Fla. High Court Backs Gore

Just when the end seemed near, a sharply divided Florida Supreme Court threw the presidential election into turmoil again Friday by ordering a statewide recount of selected ballots and slashing George W. Bush’s lead to 154 votes.

Bush immediately moved to block the decision, asking the U.S. Supreme Court for a temporary delay in the recount until an appeal can be filed. A separate petition was lodged with the U.S. 11th Circuit Court of Appeals in Atlanta.

In its 4-3 decision, the Florida justices scolded Leon County Circuit Judge N. Sanders Sauls for ruling that Al Gore had no right to count about 9,000 disputed Miami-Dade County ballots and for presuming that they would make no difference in Florida’s eyelash-thin outcome.

The justices said that examining undervotes--ballots on which no presidential vote was registered by counting machines--is essential to ensuring that every voter has a say.

“This election should be determined by a careful examination of the votes of Florida’s citizens and not by strategies extraneous to the voting process,” the majority opinion said.

Election officials estimate there were more than 42,000 undervotes among the 6 million ballots cast statewide. Barring intervention, the recount will start at 8 a.m. EST today and will end Sunday.

In a biting dissent, Chief Justice Charles T. Wells said the ruling “propels this country and this state into an unprecedented and unnecessary constitutional crisis.”

The ruling, which surprised even some Gore insiders, was perhaps the most stunning development yet in an election saga that has resolutely defied all predictions.

The Florida high court trimmed Republican Bush’s official 537-vote lead to 154 votes by ordering results from Palm Beach County, which completed a manual recount, and Miami-Dade County, which quit partway through, added to the totals of each candidate. Secretary of State Katherine Harris rejected those hand-counted ballots when she certified Bush’s victory on Nov. 26.

On other fronts:

* Two lower court judges rejected longshot Democratic lawsuits aimed at disqualifying absentee ballots in Republican-leaning Seminole and Martin counties. The ruling came just a few hours before the high court decision.

* Lawmakers in Tallahassee convened a special legislative session aimed at awarding the state’s 25 electoral votes to Republican Bush, regardless of what the courts decide or the popular vote shows.

“It is more obvious now than ever that finality--which means conclusion of all lawsuits without further challenge--cannot be reached by Dec. 12,” Florida Senate President John McKay said in a prepared statement. He referred to Tuesday’s constitutional deadline for Florida to seat its members of the electoral college, who will cast the votes that elect the next president.

Vice President Gore’s hopes seemed to crumple with Friday morning’s verdict in the absentee ballot cases. But his fortunes were instantly reversed when the high court ruled.

“Let the count begin,” said Bill Daley, Gore’s campaign chairman, who called the decision “an important victory for what has been Al Gore and Joe Lieberman’s basic principle since election day, and that is a full and a fair count of all the votes.”

In Austin, Texas, the ruling was met with official silence at Bush headquarters. But through their glass offices, angry aides could be seen pounding their desks as the state Supreme Court’s decision was announced.

Even before the ruling, Bush told reporters he would appeal any adverse decision. Speaking on Bush’s behalf, James A. Baker III quoted approvingly from Wells’ dissent and called Democrat Gore’s persistent legal challenges “sad for Florida . . . sad for the nation and . . . sad for democracy.”

Baker said that he chatted with the Texas governor several times throughout the day and that Bush was “in fine spirits and quite prepared to see this through to its ultimate conclusion.”

On Capitol Hill, the decision shocked lawmakers from both parties, just as the prospect of a Bush administration seemed to be settling in. After they caught their breath, Democrats exulted and Republicans erupted.

“We secured the ballots,” said Sen. Barbara Boxer (D-Calif.). “We protected them. We guarded them. We locked them up. Now, finally, thanks to the highest court in Florida, we are going to count them.”

Voicing the anger of many Republicans, House Majority Whip Tom DeLay of Texas denounced the ruling as “an attempt to manipulate the results of a fair and free election.”

Other Republicans warned that Congress might step in if Gore wins Florida. “You’re going to have a contested slate of electors possible, and if that be the case, you’re likely going to have Congress involved,” said Sen. Tim Hutchinson (R-Ark.).

In their 4-3 opinion, the Florida justices deemed it “absolutely essential . . . that a manual recount be conducted for all legal votes in this state.” At the same time, the majority sided with Gore in determining the 9,000 undervotes in Miami-Dade County alone raised doubts over who really won Florida.

In ordering those and other ballots hand counted, the justices said that “a legal vote is one in which there is a clear indication of the intent of the voter”--a vague statement that once more left open the question of which imperfectly punched ballots will be construed as votes and which will be ignored.

The justices also sharply criticized Judge Sauls for never looking at any of the ballots trucked to Tallahassee from South Florida. “The trial court has presented [Gore] the ultimate Catch-22: acceptance of the only evidence that will resolve the issue but a refusal to examine such evidence,” the justices wrote.

The majority opinion was signed by Justices Harry Lee Anstead, Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince.

The dissenters were Wells, Major B. Harding and Leander J. Shaw Jr.

Wells, who wrote his own dissenting opinion, was particularly angry over his colleagues’ decision to keep Gore’s hopes alive.

“I could not more strongly disagree with their decision to reverse the trial court and prolong this judicial process,” he said. “I also believe that the majority’s decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.”

He said that prolonging the judicial process “propels this country and this state into an unprecedented and unnecessary constitutional crisis.

“I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state and to this court as an institution.”

Across Florida, election officials expressed varying degrees of confidence in their ability to comply with the court’s recount order.

In Putnam County, south of Jacksonville, election supervisor Don Hersey said that “it’ll be easy” to recount about 90 undervotes out of 26,416 ballots cast. But in Santa Rosa County, in Florida’s Panhandle, officials said they did not segregate the undercounted votes, meaning they will have to manually process 50,629 ballots to comply with the court’s decision.

“I don’t see how we could do it,” said senior election clerk Patsy Dyess. “I don’t know what we will do.”

The Gore campaign began dispatching lawyers and observers across the state even before they knew how the recounts would proceed.

Chris Sautter, an election law specialist, said the richest veins for Gore to mine are Miami-Dade and Duval counties, both with large numbers of undervotes from Democratic pockets.

Sautter acknowledged that even top Gore officials were stunned by the court’s decision. “We’re talking about a scenario nobody had envisioned in recent weeks.”

Four hours after the ruling, Leon County Circuit Judge Terry P. Lewis held an emergency hearing to sort out how to implement the recount. Lewis took over the matter after Sauls stepped aside.

W. Dexter Douglass, a Gore lawyer, wanted the recounting to begin “as soon as possible” and asked for a written order from Lewis to begin the procedure.

“We understand a lot of the counties are not going to do anything until they get an order,” Douglass said.

But Phil Beck, a Bush attorney, asked Lewis to hold off and give the two sides more time to make recommendations on adopting standards for which ambiguous ballots should be counted.

“The truth is there is not a legal standard in Florida,” Beck said, reprising earlier arguments. “Creating one itself is going to raise very serious legal questions. . . . Every vote needs to be examined in the same way.”

After hearing more than two hours of arguments, Lewis laid out his directions Friday night for how the recount will be carried out, with the hope that it can be completed by 2 p.m. EST Sunday.

He said the recounting will begin at 8 a.m. EST today for the 9,000 ballots from Miami-Dade County; they will be examined in Tallahassee at the county public library. He said each side can have one observer but that the observer is only to monitor the situation and not make specific objections.

He did not set standards for looking at the ballots, instead referring to the Supreme Court’s opinion that each county canvassing board make its own determinations. If there are real objections, or if the counting team and supervising judges cannot agree on a ballot, Lewis said he will decide.

The dramatic Florida Supreme Court decision came in deceptively low-key fashion. At 4 p.m. EST, court spokesman Craig Waters stepped out on the front steps of the high court building and, under a gray sky, announced that Gore had won his appeal. A shout went up from Democratic supporters gathered nearby.

Within moments, confusion enveloped the Leon County Courthouse two blocks away. In the clerk’s office, officials huddled, wondering when and how to proceed.

Earlier in the week, anticipating the possibility of such a ruling, the clerk’s office had made preparations for a recount.

The court clerk had at the ready 25 counting teams, complete with Republican and Democratic observers. Officials also arranged a facility in the Leon County Library with public rooms that could be secured by sheriff’s officials.

“We have some contingencies in place,” spokesman Doug Smith said.

Across the street from the high court, Florida lawmakers launched their special legislative session at noon EST and met for an hour, laying ground rules. They adjourned before the Supreme Court ruled, but afterward GOP leaders said the ruling vindicated their decision to proceed.

Republican House Speaker Tom Feeney said he was “terribly saddened” by the Supreme Court’s decision and said it underscored that the Legislature has “an absolute obligation . . . to act to preserve the election law.”

GOP lawmakers assert that if the Dec. 12 deadline passes and the outcome remains uncertain, they will be justified in acting to ensure that Florida is represented in the electoral college, which meets Dec. 18.

But if Friday’s brief proceedings offered any portent, things are certain to get heated when lawmakers reconvene Monday.

The session was dominated by an argument between Democrats and Republicans over which measure would be the appropriate action to appoint electors: a bill or a concurrent resolution.

Democrats argued that a concurrent resolution, which the Republicans favor, would not carry the force of law and runs counter to legislative procedure. “It’s unfair, particularly for new members, that we begin this adventure by violating our own rules,” Democratic Rep. Suzanne M. Kosmas said.

Two factors that were never overtly discussed but clearly animated both sides were timing and the role of Florida Gov. Jeb Bush, the younger brother of the GOP presidential candidate.

Republicans want to pass a concurrent resolution in the House and the Senate because it would take only two days, as opposed to three days for a bill. Also, a resolution does not require the signature of the governor, who would prefer to minimize his public role in the dispute.

House Republicans decided to press ahead with the measure as a concurrent resolution. In the Senate, the matter was referred to the Rules Committee for further study.

Whatever route lawmakers choose, bill or resolution, the measure to appoint Bush delegates is expected to pass easily, most likely on Wednesday, since Republicans outnumber Democrats 77 to 43 in the House and 25 to 15 in the Senate.

*

Times staff writers Steve Braun, James Gerstenzang, Jeffrey Gettleman, Scott Gold and Megan Garvey, and researcher Lianne Hart contributed to this story.