Advantage Gore, but It’s Still Anybody’s Game

The Florida Supreme Court decision Friday to block final certification of the state’s presidential election results advances one of Al Gore’s top goals, giving him an opportunity to shape public opinion and the legal environment by allowing manual recounts to continue.

Gore’s camp believes its political and legal situation will be strengthened if further court decisions do not come until the recounts in three Florida counties reduce or eliminate George W. Bush’s narrow official lead in the state.

And by blocking Secretary of State Katherine Harris from certifying a final result today--and not scheduling its own hearing until Monday--the Florida Supreme Court has provided more time for those vote counts to continue, possibly long enough to place Gore unofficially ahead of Bush. Gore received a second legal boost Friday when a federal appellate court rejected Bush’s request for an injunction to halt the manual tallies.

Both of those decisions were huge boosts for Gore. At the core of the Gore strategy is the conviction that if the vice president takes the lead in Florida, even unofficially, the courts and the country will be extremely reluctant to overturn that result.

In effect, the Gore campaign is hoping the recounts create what diplomats call “facts on the ground”: circumstances so compelling that they become effectively impossible to reverse.

“Our case becomes much more powerful when people see the votes for Gore,” said Mark D. Fabiani, the Gore campaign’s communications director. “It becomes very hard then, either legally or morally, not to have those votes counted.”

Even some Republicans fear Fabiani is right. If the manual recounts now underway put Gore ahead, and then the state court upholds Harris’ decision earlier this week not to recognize those votes, “there will be the largest outcry you ever heard in your life,” predicted Tom Slade, a former chairman of the Florida Republican Party.

“If Gore moves into the lead, you will have white heat,” agreed UCLA law professor Daniel H. Lowenstein, the former director of California’s Fair Political Practices Commission under Gov. Jerry Brown.

This scenario, though, isn’t without risk for Gore. If the recounts produce little progress for him over the weekend, some observers believe the Florida Supreme Court might be more likely to consider his challenge moot and rule against him. And privately, the Gore campaign isn’t certain that the recount will give him enough new votes to overcome the increase in Bush’s lead provided by the overseas absentee ballots.

The Florida high court’s decision surprised both camps and legal observers.

What was particularly surprising to some observers was that the court stepped in to “preserve the status quo” on its own, an unusual move.

For now, the state Supreme Court decision Friday stunned the Bush camp. The campaign had been planning for the Texas governor and running mate Dick Cheney to make some kind of victory statement today if, as expected, the overseas absentee ballots now being counted give Bush a lead that Harris can certify as final.

One aide said Bush officials were still optimistic that the state Supreme Court would uphold Harris’ discretion to reject the results from the manual recounts. But he acknowledged that Friday’s decision had sent spirits plummeting only hours after Leon County Circuit Judge Terry P. Lewis had cheered Bush partisans by upholding Harris’ authority earlier Friday morning.

And there is no telling how long it will go on. The Florida Supreme Court set a hearing for Monday, but it is not clear when the justices will rule.

Bush advisors had hoped that if Harris certified Bush’s victory this weekend, a demand for closure would dissolve public patience to wait for the results of recounts underway in heavily Democratic Palm Beach and Broward counties. On Friday, Miami-Dade County reversed an earlier decision and authorized its own countywide manual recount.

Now those counties have been guaranteed at least three more days to count votes. And that could yield Gore enough gains to overcome the lead Bush has enjoyed in every official and unofficial tally here since the election, analysts in both campaigns believe.

Bush led by 300 votes in the results Harris certified earlier this week. Bush appears to be netting the 400 to 500 new votes his campaign projected he would accumulate from the overseas absentee ballots.

But senior Bush advisors worry that even a lead of 800 votes could be eclipsed by the hand recounts now underway. Neither side expects the Miami-Dade recount to produce a significant advantage for either man. But Bush aides say that the Broward recount could produce a net gain of at least 100 votes for Gore, and that Palm Beach could produce as many as 1,000 more for Gore.

Gore aides intriguingly believe that, compared with the Bush estimate, they may gain more votes from Broward but fewer in Palm Beach. Though still cautiously optimistic that Gore will net enough to pass Bush, the size of Bush’s absentee advantage has left the vice president’s aides feeling that the final result will be very close, even if the manual tallies are included.

Republican pollster Bill McInturff said he would not guess how public opinion might change if Gore takes the lead. But he acknowledged that Bush’s advantage in Florida so far “has been material” in giving Bush the lead in his surveys when Americans were asked which man has the better claim to the presidency.

“He has been ahead,” McInturff said, “so when you ask people who . . . has the legitimate claim, they say, ‘Well, he’s the guy ahead.’ ” If that changes, he acknowledges, public opinion may shift as well.

In theory, even a shift in public opinion will not affect the final state Supreme Court ruling on whether Harris exceeded her authority by refusing to accept the results of the manual recounts.

But Slade, like other observers, believes the judges must be aware that it will be far more difficult politically for them to let Harris exclude the manual recounts if the country knows those results could change the winner of the state and the presidency.

“That would be almost an impossible position to put yourself in,” Slade said. “And I can’t imagine they would do that to themselves.”

Orlando attorney David E. Cardwell, the former director of the Florida Division of Elections, said that “if the recounted ballots show a swing in another direction,” that could affect the court not only politically but legally.

“The standard for contesting an election is whether the ballots at issue could change the outcome,” said Cardwell, who has represented both Democrats and Republicans, including Sen. Connie Mack (R-Fla.), in election disputes. “In every election contest I have been involved in, the court had to get the final count before it could really make a decision on making a change. Otherwise, you are dealing in hypotheticals.”

University of Utah law professor Michael McConnell said, “The Florida Supreme Court is vested with jurisdiction to make the final decision, barring the extreme” possibility that Congress refuses to accept the slate of electors of the winning candidate.

“That’s not good news for the Republicans,” said McConnell, a conservative constitutional scholar, referring to a court almost all of whose members were appointed by Democratic governors.

As they await the state Supreme Court’s next move, both sides are considering what options they may still have if the court rules against them. If the state court upholds Harris, Gore still might have two cards to play, though both are longshots.

One option would be to join the private litigation in Palm Beach County charging that the “butterfly ballot” used there violated state law; in theory, at least, a court could order a new vote or take other steps to give Gore more ballots from the county. But senior Gore aides say the campaign is currently inclined against that option.

Gore also could appeal an adverse Florida Supreme Court decision to federal court. But aides say that would be possible only if the lower court rules against the manual recounts on grounds that they violate federal law--for instance, accepting the Republican argument that it violates the U.S. Constitution to manually recount some ballots but not others.

If the court relies instead on Florida law to uphold Harris, there is no obvious source of federal appeal, one senior Gore legal advisor said. And Gore’s attorneys have said consistently that the matter should be resolved by the state, not federal, judiciary.

Bush’s options would be limited too, especially since a federal appeals court in Atlanta said Friday that it would not intervene in the dispute because state courts were handling the matter.

But one senior Bush aide hinted at another line of legal attack this week, when he said the campaign’s research had found that 1,100 Florida voters were simultaneously registered in New York state. The Bush campaign presumes most of those voters are Democrats, and if their votes were disallowed, even a Gore lead from the manual recount might be reversed.

Asked whether the discovery of the dual registrants might prompt further litigation to disallow some of those votes, the advisor said, “We’ll see.”

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Times staff writer Henry Weinstein contributed to this story.