A Bush Flip-Flop Is Alleged in Absentee Arguments

Democratic lawyers launched a new legal assault on Texas Gov. George W. Bush on Monday, charging that the Republican presidential candidate supports state’s rights only when it’s convenient.

In papers filed in court here, Democratic activists appealed to the Florida Supreme Court to reinstate lawsuits that accused Republicans of improperly fixing flawed ballot applications in Seminole and Martin counties. Two lower courts dismissed the cases Friday.

Vice President Al Gore did not join the lawsuits or the appeal. But a Florida Supreme Court order to toss out up to 25,000 absentee ballots--as the plaintiffs have asked--could allow Gore to take a clear lead in the race for the White House.

Republicans argue that discarding ballots would be like “seeking the death penalty for a parking ticket,” Jonathan E. Sjorstrom, a Republican lawyer, said Monday.

Sjorstrom said the Democrats are trying desperately to stave off defeat, even if it means throwing out legitimate votes.

“They have just never presented any evidence at all that any mistake committed by elections workers had any effect on voter intent,” he said. “I just don’t see any basis for a reversal.”

In Washington, Bush and Gore lawyers argued Monday before the U.S. Supreme Court over whether a manual recount of votes should resume in Florida. A ruling by the nation’s highest court to terminate recounts would effectively sink Gore’s chances. However, a vote by Florida’s highest court to toss out the absentee ballots might keep him afloat pending further court challenges.

Hence the maneuvering over the Seminole and Martin county cases.

The Democrats say Bush lawyers took a federalist stance last week when they argued in court that broad constitutional interests in enfranchising voters are paramount over technical violations of state law.

But Bush lawyers took a state’s rights stance, Democrats charge, in another case earlier this month before the U.S. Supreme Court. They argued then that state laws need to be strictly enforced and that Florida’s secretary of state should be allowed to certify vote tallies under a state-imposed deadline.

Bush is “certainly speaking out of both sides of his mouth,” said Harry Jacobs, an Orlando-area personal injury lawyer and a Democratic activist who brought the Seminole County case. “It’s a very inconsistent position.”

Edward Stafman, a Tallahassee lawyer who argued the Martin County lawsuit, agreed. “Whether [Republicans] can navigate their way through by taking both positions, we’ll have to see. But there seems to be some major-league hypocrisy here.”

Republicans scoffed at the argument, and legal experts said the Democrats are unlikely to succeed. The Florida Supreme Court has not set a date for oral arguments in the absentee ballot case and may reject the appeal without further review.

Republicans accuse Gore, in turn, of coming down on all sides of the issue.

The vice president has insisted time and again that Florida must “count every vote,” arguing that manual recounts are required to determine the winner in a razor-thin election. That clashes directly with the Seminole and Martin cases, which could invalidate thousands of ballots.

Lawyers behind the lawsuits pledged to forge ahead with their appeal even if the vice president loses in front of the U.S. Supreme Court and, possibly, even if he concedes the election.

The cases focus on a $500,000 Republican get-out-the-vote program in Florida. The GOP mailed thousands of postcards that offered likely Republican voters a simple method of voting absentee.

The postcards amounted to preprinted absentee ballot applications, but a contractor hired by the Republican Party mistakenly omitted or scrambled voter identification numbers on about 70% of them. Those ID numbers are required under Florida law before county election supervisors can issue absentee ballots.

Republicans realized their mistake and persuaded the Seminole and Martin county election supervisors--both elected Republicans--to let them correct the forms, which had already been declared invalid.

In Seminole County, local Republican officials were given a back room at the election office for at least two weeks to correct about 2,000 documents. In Martin County, party officials went a step further, removing hundreds of public records from election offices for days at a time.

Democrats did not ask for the same opportunity and did not receive it. They argue now that Bush received as many as 2,200 absentee votes--far more than the Texas governor’s lead in Florida--solely because of the arrangements.

Two Leon County Circuit Court judges, Nikki Ann Clark and Terry P. Lewis, rejected the lawsuits. The judges found that state laws were violated, but they agreed that invalidating the absentee ballots was too harsh a punishment.