Vote Fight Hits the Courts

Vice President Al Gore is considering a proposal to end the stalemate over Florida’s disputed vote count, aides say: If Republicans agree to a manual recount of the vote across the entire state, Gore would renounce any further lawsuits over the result.

Under the approach being discussed in the Democratic campaign, Gore would agree not to join litigation challenging the “butterfly ballot” in Palm Beach County and would support efforts to recount the ballots by hand in all of Florida’s 67 counties, rather than just the four Democratic-leaning counties that his campaign had selected. In return, Texas Gov. George W. Bush’s Republican campaign would drop its legal efforts to block the manual recount.

The Bush campaign appeared divided over the idea. One senior aide said that some people in the campaign have been discussing such a deal themselves and that it could be “a real option.” But another aide said the GOP campaign was unlikely to accept a statewide hand count, because it would conflict with Bush’s current position that manual counts are unreliable.

Still, senior Bush aides carefully left the door open, presumably in case their attempts to stop the manual recounts should fail.

Gore has not yet made such an offer to the Bush campaign, but a senior Gore advisor said the idea might become attractive to both sides if they reach a legal stalemate in the next few days.

“In the end, it may be the only way that everyone can decide on to get a conclusion,” said one senior Gore advisor. “It’s clearly something that, from a political point of view, it would be hard for us to say no, no, we don’t want that.”

Officials in the two campaigns agreed to discuss the idea for a compromise on the condition that they not be identified.

On Monday, Bush asked a federal judge to block the manual recounts that Gore had requested. The judge refused.

Florida Secretary of State Katherine Harris, a Republican, has announced she will refuse to certify any results received after 5 p.m. EST today, a deadline too early for most of the manual recounts to meet. Democrats have sued to prevent her from establishing that cutoff.

If that litigation is successful, both sides may need another alternative to resolve the dispute, the Gore official predicted.

“Assuming that the secretary of state is blocked in court and assuming the federal injunction sought by Bush continues to be rejected by the courts, I think that is where the Bush people have to go,” the Gore aide said.

It would require a change in position that would be hard for the campaign to swallow, a senior Bush aide said. “We can’t go to federal court saying this [manual recount] is a flawed system and then turn around and say it’s not so bad after all,” the aide said. “We’ve nailed our flag to the mast.”

But circumstances could change. A Republican close to the Bush camp said one factor that could attract them to such a deal is fear that the secretary of state’s cutoff will be struck down by the Florida State Supreme Court, which is dominated by Democratic appointees.

Bush Aide Calls It a ‘Real Option’

If the GOP fails in its legal efforts to block manual recounts, a statewide reexamination would undoubtedly look like a more attractive alternative for Bush than limiting the recounts to Democratic-leaning counties, most Republicans agree. “Whatever solution there is should be statewide: You either stick with the statewide mechanical count, or you go to a statewide [manual] recount,” says Bill Kristol, publisher of the conservative magazine The Weekly Standard.

One of the governor’s senior advisors said Monday: “Honestly, I think it is a real option.” If further recounting is inevitable, a statewide manual recount that bars further litigation “seems like the second-best option for us.”

Bush spokeswoman Karen Hughes appeared to leave the door open to such a shift in position, even as she denounced the idea of a manual recount. Asked by a reporter in Austin whether the campaign might still seek manual recounts in other counties, she replied: “Obviously we have to make those decisions at the time things happen.”

Democrats like the idea because they are increasingly confident that even a statewide manual recount would leapfrog Gore past Bush. “We won the exit polls and we’re ahead in our own polling in Florida, so we’re reasonably confident a statewide recount would go our way,” said a lawyer advising the Gore team.

Any deal for a statewide recount would face formidable hurdles, officials on both sides said.

One would be legal. The deadline for requesting a manual recount has already passed in most Florida counties, leaving open the question of how a court, the campaigns or even the Legislature could order such an option.

Orlando attorney David E. Cardwell, a former director of the Florida Division of Elections, said he believed a state judge could order a recount if the two campaigns jointly requested such an order.

“If the two parties agreed to it, I think you would be hard pressed to find [a judge] who wouldn’t agree to it,” Cardwell said. “I don’t know that any county supervisor or canvassing board would challenge” such an order.

He said he did not believe all 67 Florida counties would undertake a recount voluntarily. “Most of the counties think they are done,” he said. “They don’t want it done again.”

The other hurdle is both legal and political: To be attractive to Bush, any such deal would have to foreclose the possibility of any further litigation over the Florida result. But Gore officials say they have no capacity to shut down private lawsuits challenging the results.

For example, several Palm Beach residents, represented by Harvard attorney Alan Dershowitz, are already challenging in state court the ballot used in last Tuesday’s voting, arguing that it caused them to erroneously support Reform Party nominee Pat Buchanan or to double-punch and thus invalidate their ballots. That case will be heard by a state court today.

And civil rights groups, which are investigating allegations of voter intimidation, say flatly that Gore’s decisions will not affect whether they file litigation in the state.

Other Suits About ‘Legal Rights’

“It will have absolutely no impact,” says Barbara Arnwine, executive director of the Lawyers Committee for Civil Rights Under Law. “This is about African American voters and their legal rights.”

Arnwine, whose groups held public hearings in Florida last weekend, said it will reach a decision soon about whether to file a federal civil rights claim against the state.

Since both the civil rights groups and the Palm Beach plaintiffs have the resources to pursue their cases, Gore aides acknowledge that those cases can proceed without any involvement from the vice president’s camp. And that could leave the Bush team in the worst of both worlds: agreeing to a broader recount without receiving any real protection from further litigation.

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Times staff writers Doyle McManus and Henry Weinstein contributed to this story.