Democrats Pin Hopes on ‘Voter Intent’ Ruling

Democrats are increasingly concerned that the manual recounts now underway in three South Florida counties will not produce enough new votes to give Al Gore the lead unless the state Supreme Court orders the counties to use a broader standard in judging which ballots should be added to the existing totals, sources say.

With the manual recounts so far not producing as many votes as Gore’s campaign expected, key Democrats say the final result will be a “crapshoot” unless the Florida Supreme Court compels local officials to use a common standard in assessing which ballots were meant to be cast for either Vice President Gore, the Democratic nominee, or Texas Gov. George W. Bush, his Republican rival.

This concern has pushed Democrats to open a new front in the legal dispute between the two sides. While asking the state Supreme Court to order the inclusion of the manually recounted ballots in the final state tally, Democrats on Sunday also requested the court to require that all counties employ the more permissive “voter intent” standard that Gore lawyers insist is mandated in Florida law.

Imposing that standard may now be as critical to Gore’s hopes of winning the presidency as the underlying question of whether the results of the manual recounts are included in the final tallies, key Democrats say.

“They are both very significant decisions,” said one senior Democratic strategist in the state. “I will not say we cannot make it [past Bush] under the current standard, but it’s very close to a crapshoot.”

Bush aides denounce the Democrats’ attempts to apply the voter intent standard as an effort to change the rules in the middle of the game--because the existing process does not appear to be producing the result they want. “It sounds like Al Gore and his attorneys are trying to come up with ways to continue counting until they get the result they want,” Bush spokesman Scott McClellan said.

On Sunday, officials in Broward County gave Gore a big victory by voting unanimously to adopt the more liberal voter intent standard for judging which ballots to add to each man’s total.

The voter intent standard would allow the counting of ballots where “chads” are only indented or loosely perforated, as opposed to only those where at least two corners of the chad were dislodged, the standard Broward County has so far used.

But Democrats are increasingly concerned that Palm Beach County officials are in practice employing the more restrictive two-corner standard, despite a court ruling last week urging them to also use the voter intent measure. And that, officials say, is raising anxiety that the recount may not produce enough votes for Gore to overcome Bush’s official 930-vote lead.

The opening of this new legal battle over the standards for manually counting ballots crystallizes the dynamic that is extending and proliferating the conflict here. Because the two sides are separated by so few votes, each is being driven to file new litigation meant to add or subtract even small numbers of votes that could spell victory for their man.

As a result, one ranking Democratic attorney predicted, even after the state Supreme Court rules on the paramount issue of whether the results of the manual recounts may be included in the official results, “there is still plenty of litigation left in this process.”

Already, Republican lawyers are examining legal or administrative challenges to county canvassing board decisions that invalidated hundreds of overseas absentee ballots on technical grounds; that could help Bush maintain a lead even if the state Supreme Court allows the manually recounted ballots to be included in the official final result.

“We are sure looking closely at it, as a matter of principle if not politics,” one senior Bush legal advisor said.

Perhaps paving a path for such a challenge, U.S. Rep. Stephen E. Buyer (R-Ind.), chairman of the military personnel subcommittee, said Sunday that he would launch an inquiry into how Florida counties handled the overseas absentee ballots, especially ballots submitted by members of the military.

Conversely, a Democratic activist has filed suit seeking to invalidate thousands of absentee ballots in Seminole County, where a local election official helped Republican operatives correct errors in ballot application forms; that could potentially cost Bush 4,800 votes and allow Gore to take the lead even if the results of the manually recounted ballots are not included in the final total.

In its intense struggle over every vote, the battle in Florida is fast becoming a microcosm of the election itself. In October, Bush and Gore were forced to battle over groups of voters ordinarily too small to contest--such as Oregon supporters of Green Party candidate Ralph Nader--because the extraordinary tightness of the race meant that even tiny shifts in voter sentiment could tip the balance in the unusually large number of close states.

Now, in November, the two sides are replicating that pattern in Florida--battling to shift small numbers of votes that would be too tiny to notice in a race that was not this breathtakingly close.

Consider the case of Precinct 162E in Palm Beach County--a dispute that may become Exhibit A in the Democrats’ charge that local officials are applying an overly restrictive standard in judging which ballots to count.

According to highly placed Democratic sources, this heavily Democratic precinct in Delray Beach was included in the sample precincts that county officials manually recounted nine days ago when assessing whether to order the countywide hand recount now underway. In that original manual recount, sources said, Gore gained 11 votes in the precinct and Bush picked up three--enough to help convince the county to order the countywide count.

But when Precinct 162E was recounted Saturday, the vote counters gave Gore 11 fewer votes than during the first recount--or exactly as many as the machine tabulation initially gave him, Democratic sources said.

To Democrats, the fact that the number of votes for both sides shrank between the first and second manual recounts is evidence that the county is applying an overly stringent standard in assessing ballots, despite a ruling last week by Palm Beach County Circuit Judge Jorge LaBarga that the county should not automatically reject ballots that were not fully perforated if the voters’ intents were still apparent.

“In public they are saying they are using the intent of the voter standard,” charged one Democratic legal advisor. “But in practice they are applying a two-corner standard.”

In its legal filing Sunday to the state Supreme Court, Gore’s campaign argued that Florida law requires the counties to include any ballot where the voter’s intent is apparent.

“For more than 80 years it has been settled Florida law that a ballot must be counted if the voter’s intent is apparent from an examination of the ballot,” the Democrats wrote in their brief.

That standard, they argued, also is used in other states, including Texas, where state law concerning manual recounts requires the inclusion of ballots where “a clearly ascertainable intent of the voter to vote” is evident.

Bush advisors dismissed that argument. The senior Bush legal advisor said that, while Florida law did require local officials to assess voter intent, that did not mean they had to include ballots that had only “dimples” or other minimal evidence of the voter’s preference.

Palm Beach County canvassing board Chairman Charles Burton took a similar position in an interview. “If we’re going to count it, there has to be clear and convincing evidence that the voter intended to vote,” he said. “What other way is there to figure out a voter’s intent?”

Meanwhile, the unanimous decision Sunday by the Broward County canvassing board to apply the voter intent standard in its manual recount means that as many as 1,000 ballots may be reassessed--which local officials say could produce significantly more votes for Gore than the original recount.

The Broward County board’s decision increased the conviction in the Bush camp that Democrats here are committed to using any means to produce a majority for Gore. With Democrats just as convinced that Republicans are committed to blocking legitimate votes, there’s no sign of the struggle nearing a conclusion.

Indeed, as long as the legal maneuvering and vote counting fail to give either man an insurmountable lead, neither side has any incentive to lay down its arms.

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Times staff writers Jeffrey Gettleman and Scott Gold contributed to this story.

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Florida Tally

The popular vote reported by the Florida secretary of state, including absentee ballots:

Bush: 2,911,872

Gore: 2,910,942

Results of ongoing uncertified hand recounts:

NET GAIN

PALM BEACH: BUSH +12

BROWARD: GORE +105

MIAMI-DADE: GORE +6 *

Gore Net Gain +99

If these votes were included, Bush’s lead narrows to: 831

*

Results as of 10 p.m. PST

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Los Angeles Times