Ruling Still Far From the Final Word

It’s over when we say it’s over.

On Friday, that is what a majority on the Florida Supreme Court defiantly told Leon County Circuit Judge N. Sanders Sauls, the Florida Legislature and even the U.S. Supreme Court.

In the process, the Florida high court resurrected Al Gore’s hopes of winning the presidency--and ignited an incendiary political struggle that is likely to burn in federal court, the state Legislature and the U.S. Congress, perhaps for weeks.

“I think we move from political crisis to constitutional crisis now,” said Tom Cole, chief of staff at the Republican National Committee.

Like the first burst from a string of firecrackers, the divided--but emphatic--decision from the state high court seems certain to set off a succession of high-caliber explosions.

Two hours after the decision was announced, attorneys for Texas Gov. George W. Bush, the Republican candidate, indicated that they would ask the U.S. Supreme Court to overturn it. They did so Friday evening.

In the meantime, the ruling enormously increased the prospects of a showdown between the state court--all of whose members were appointed by Democratic governors--and the Republican-dominated state Legislature. On Friday, the Legislature formally convened a special session for the unprecedented purpose of directly allocating Florida’s electors to Bush--even, potentially, if the recounts now authorized by the state Supreme Court give Vice President Gore the lead in Florida.

That promises a new round of litigation, as Democrats move to block the Legislature. If the Legislature moves ahead and the courts refuse to stop them, the confrontation could move to Congress. By early next month, it could be compelled to choose between a slate of Gore electors authorized by the state courts and Bush electors chosen by the state Legislature. The U.S. Supreme Court then could be forced to referee the dispute yet again.

Bush Lead Cut to 154 Votes

Just as Democrats were privately discussing the best way for Gore to concede and Bush speech writers were preparing a gracious victory statement, it looks like war again--on every possible front.

Perhaps for the first time since election night Nov. 7, it’s a war in which Democrat Gore may have the upper hand. Unless Bush can convince federal courts to preemptively block the recount, Gore could take the lead in Florida in the next few days.

Already, the court’s decision has reduced Bush’s lead over Gore from the 537-vote advantage certified Nov. 26 by Florida Secretary of State Katherine Harris to just 154 votes. The court ordered that Gore be awarded the 168 votes included in the uncompleted hand recount in Miami-Dade County and the 215 votes he gained during the Palm Beach County recount completed just after the deadline for inclusion in Harris’ certification.

The court put Gore within range of Bush by ordering the recount of about 9,000 more Miami-Dade County ballots on which automatic tabulating machines failed to record a presidential preference--the so-called undervotes.

Through the early stages of the recount that was abandoned there just after Thanksgiving, the canvassing board found evidence of “voter intent” to support Gore or Bush on about one-fourth of the ballots unread by the machines, according to Gore campaign filings. If that ratio holds up for the remaining 9,000 ballots unread by the machines, the courts would find about 2,160 additional valid votes.

In a detailed computer analysis recently, the Orlando Sentinel found that these undervotes came disproportionately from heavily Democratic precincts. If the undervotes divided between the candidates the same way as the vote did in those precincts on election day, Gore would win about 57% of the new votes, the newspaper calculated.

If that ratio held up over the 2,160 supposed new votes, Gore would gain a net advantage over Bush of about 302 votes--potentially enough to erase the Texan’s lead just from Miami-Dade County.

Those projections are necessarily imprecise. Both sides have been consistently wrong in their estimates of how many votes the hand counts would produce, whether in Broward, Miami-Dade or Palm Beach County.

“When it’s so close, it is very difficult to predict what might happen in any of these counties,” said Chris Sautter, a Gore election law specialist. “A small number of undervotes in any one of these counties could tip it one way or the other.”

Judging Voter Intent Becomes Key

Much will depend on the standards used to judge which ballots contain evidence of voter intent. If the recount occurs under the stringent standards used in Palm Beach County, it will produce far fewer new votes for either Bush or Gore than if the more lenient approach used in Broward and Miami-Dade counties is adopted. The state court’s decision did not provide precise guidance.

But, whatever standards are used, Republicans fear that the provision in the court’s ruling requiring a statewide recount of all undervotes is a time bomb that could explode on Bush. The percentage of Florida ballots on which machines failed to record a presidential preference was about four times higher in the 27 counties that used punch-card equipment than in those that used more advanced optical scanning systems.

Though the pattern is not uniform, the counties that use the punch cards tend to be lower-income areas that lean Democratic. Even in counties that lean overall toward the GOP, Republican analysts fear that, as in Miami-Dade County, the undercount will be heaviest in predominantly Democratic precincts. Adding to the concern among Republicans is a second factor: Democrats hold a majority on about 70% of the state’s local canvassing boards--the institutions that the state court ordered Friday to immediately begin counting the undervotes, which number about 43,000 statewide.

“You have a combination of two things: You have more undervotes in Democratic areas but, worse than that, you’ve got many more canvassing boards that will adopt the most lenient possible interpretations and standards,” one senior GOP operative said. “You are going to have Democrats guessing how Democratic voters would have voted.”

One top Gore aide, though, said that widening the undervote recount to include the entire state is a “wild card,” and neither side could confidently predict its effect. “The vast majority of these counties are counties Bush won. But, if there’s anything we’ve learned, it is that it’s difficult to project with any certainty what these hand counts will find.”

Another big question is whether those hand counts ever take place--or determine the result.

The answer to the first question--whether the hand counts occur--will be in the hands of federal courts. Bush attorneys immediately asked a federal appeals court to block the new hand counts while the GOP appeals the state Supreme Court decision to the U.S. Supreme Court.

At the heart of that appeal is likely to be the argument raised by the Bush camp against the Florida Supreme Court’s ruling last month that extended the deadline for hand counts. In that case, the Bush camp argued that the state high court essentially rewrote the state’s election law after election day--which is impermissible under federal law. On Friday night, former Secretary of State James A. Baker III, Bush’s senior advisor in the state, quickly signaled that the same arguments will be raised in the new GOP challenge.

The U.S. Supreme Court did not rule on those arguments in its decision Monday, which sent the Florida Supreme Court’s earlier ruling back to the state court for clarification. But Democrats believe that it could be tougher to raise the claim against this decision because the contest procedures on which the state court based its ruling Friday clearly were established in Florida law long before election day. Indeed, in its decision, the Florida court majority emphasized that point itself.

Moreover, some legal analysts believe that the U.S. Supreme Court’s ruling suggested that it would be likely to defer to the Florida court on matters where the state justices said they were simply interpreting state law. And that was the way the state court structured its opinion Friday.

“The [U.S.] Supreme Court was pretty clear [that] they didn’t find a problem with that,” Florida State University law professor Rob Atkinson said. “In a funny way, they would have to go back and change their own position a bit. And that becomes a really radical proposition.”

In their filing to block the recount Friday night, Bush attorneys also argued that the recount violates the equal protection provisions of the U.S. Constitution by subjecting ballots in each of Florida’s 67 counties to different standards of voter intent. In fact, state Supreme Court Chief Justice Charles T. Wells, in his forceful dissent from the majority opinion, warned that the order for a statewide recount “is fraught with equal protection concerns” that could cause federal courts to overturn the ruling.

For the second question--whether the results of the hand counts will decide the election--the answer may come as much from the state Legislature and Congress as from the courts. After the state high court’s decision, it seems almost certain that the conservative-dominated Florida House of Representatives will pass legislation early next week directly awarding the state’s 25 electoral votes to Bush.

House leaders have justified such a move by arguing that, if the legal wrangling is not resolved by Tuesday--and a resolution now seems virtually impossible--the state could lose its representation in the electoral college. GOP leaders in both chambers of the Legislature on Friday night immediately declared that the court decision justifies legislative intervention.

But Florida Gov. Jeb Bush, the GOP candidate’s brother, and some state senators have been more cautious about whether the Florida Legislature should try to overturn the result if court-authorized recounts give Gore the lead by Tuesday, the deadline for the state to select its electors. Whatever state Republicans say now, Democrats believe that would prove politically excruciating--which is one reason they are eager to begin the recounts as quickly as possible.

In any case, if the Legislature responds to the state Supreme Court decision by trying to name its own electors, that inevitably will spawn another round of legal challenges.

“We will have another court case if the Florida Legislature goes ahead with what they are trying to do,” insists state House Minority Leader Lois Frankel, a Democrat from West Palm Beach.

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Florida Tally

George W. Bush’s original 1,725-vote lead has dropped several times since election day.

Nov. 18: After deadline for overseas absentee ballots.

BUSH LEAD: 930

Nov. 26: Florida Secretary of State Katherine Harris certifies vote count.

BUSH LEAD: 537

Friday’s ruling by the Florida Supreme Court gives Al Gore net gains of 215 votes in Palm Beach County and 168 votes in Miami-Dade County.

BUSH LEAD: 154

Source: Associated Press