Gore Must Now Slip Through Narrow Window

With its unambiguous insistence that the results of manual recounts must be included in Florida’s final election result, the state Supreme Court on Tuesday night shifted the focus of the presidential election to a simple question: Can Al Gore gain enough votes from the process to overcome George W. Bush’s official, uncertified 930-vote lead in the relatively narrow window the court established for the recounts to proceed?

The decision gave Gore a new breath of life by overruling Secretary of State Katherine Harris and stating that she cannot certify a winner in Florida until manual recounts are completed in Broward, Palm Beach and Miami-Dade counties. But Gore’s hopes could flicker if the recounts continue to produce fewer new votes than his campaign expected.

Still, the decision dispirited Republicans, who fear that vote-counters in these three heavily Democratic counties will find some way to produce enough votes to make Gore the next president--even if they must complete work by the 5 p.m. EST Sunday deadline established by the court. (The deadline will be extended to 9 a.m. Monday if the secretary of state’s offices are closed over the holiday weekend.)

And while Bush attorneys--who largely expected an adverse decision--already have laid the groundwork for a federal court appeal, some campaign insiders privately remain dubious that the federal judiciary will overrule Florida’s top court on a matter of state law.

The decision Tuesday is bound to outrage conservative activists and Republican partisans, who are sure to note that all of the members of the Florida court were appointed by Democratic governors. If Gore wins under these circumstances, he likely will face fervent opposition from conservatives who desperately wanted to see the country repudiate President Clinton by rejecting his vice president. That may have been signaled by the extremely sharp denunciation of the court that Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) delivered on CNN immediately after the decision.

In a more immediate sense, this ruling is likely to prompt Republicans to try to increase Bush’s vote total by going to court to seek the inclusion of overseas military ballots disqualified on various grounds last week. And Bush advisor James A. Baker III, the former secretary of State, suggested late Tuesday that the Republican-controlled Florida state Legislature may seek to somehow overturn the decision--a prospect that could greatly escalate the conflict.

But the real battle is likely to come over the standards these three counties will use in judging which ballots contain evidence of “voter intent” to support Gore or Bush. Both camps are likely to return to court on that question, which may be the obscure lever on which the choice of the next president will turn.

Both sides have been exploring other options for pressing their claim if the court ruled against them on this central issue--from appeals of the decision itself to new actions meant to include or exclude small numbers of votes that could tip the result again.

But for the time being, the effect of the decision will be to focus attention directly on the manual recounts themselves--and whether they allow Gore to overtake Bush.

It may have been a sign of Gore’s confidence that, in a statement after the decision, he renounced a longshot option for overcoming a Bush win in Florida: convincing individual members of the electoral college to shift their votes from Bush to him. Gore said he wouldn’t accept any such support, although he would need only three electors to switch even if Bush wins Florida.

Through the first stage of the recount, Gore hasn’t received as many new votes as his advisors had expected, particularly in Palm Beach County. Unofficial results through Tuesday night showed Gore gaining 266 votes in the three counties, not nearly as many as he needs.

But he has the potential to gain much more depending on how the counties rule on disputed ballots where the evidence of “voter intent” isn’t clear.

If the counties use a relatively restrictive standard, neither side can be confident about the outcome, one senior Gore advisor said last weekend. If the counties are more permissive in counting ballots with more minimal evidence of voter intent--such as an indentation, or dimple, on the chad--Gore’s chances are much better, analysts in both parties agree.

Gore attorneys had asked the court to establish a permissive statewide standard for judging those disputed ballots; although it sympathetically cited an Illinois court decision urging a broad standard in judging ballots, the Florida court refused to set one itself.

But one senior Bush advisor said it was not clear which candidate would actually benefit more from that aspect of the decision. By not mandating a statewide standard, the Bush advisor noted, the court allowed Broward and Miami-Dade to continue using the relatively permissive standards they have already applied in judging ballots.

Under that approach, Miami-Dade is producing far more votes for Gore than either side expected--more than one per precinct counted. (In all, the county has 614 precincts.) And Broward could yield a significant number of new votes for Gore when it considers about 1,800 disputed ballots; officials there have already said they will look for any evidence of “voter intent” and not count just the ballots where two corners of the chad have been dislodged, as Republicans prefer.

On the other hand, the court’s refusal to set a statewide standard leaves Democrats concerned about the proceedings in Palm Beach County. Originally, both sides expected Palm Beach--where the automatic counting machines failed to register a presidential preference on about 10,000 ballots--to produce the largest gains for Gore.

But with about one-fifth of the precincts measured, Gore has had a net gain of only three votes. Democrats say that is because the county is using an overly restrictive standard in assessing the ballots--in effect requiring that two corners of the chad be punched out--even though election officials say they are not.

Despite its reluctance to establish a statewide standard, the Supreme Court may need to rule specifically on the Palm Beach standard. Democrats on Tuesday went to court to compel the county to use a more permissive standard, and that case is likely to make its way quickly through the judicial hierarchy toward the state high court again.

“They certainly get another bite at the apple,” says Heather Gerken, an assistant professor at Harvard law school who specializes in election law. “The justices may feel better deciding this thing when they have a record.”

If the court doesn’t compel Palm Beach to loosen its standard, the critical question will be whether Broward and Miami-Dade produce enough votes for Gore.

Complicating the equation is the prospect that Republicans now will try to force inclusion of more of the overseas military ballots. One senior Bush advisor said Tuesday that the campaign had not filed legal or administrative action on that question, because its formal position before the Supreme Court was that the election was already over; now that the court has ruled otherwise, look for the campaign to sue, the aide said.

The Bush camp may face a more difficult task convincing federal courts to become involved in the dispute. In his oral argument Monday, Bush attorney Michael Carvin suggested that the campaign would argue that if the state court allows the manual recounts to be included, they were violating federal law by trying to “change the rules of the election after the election has taken place.”

In their brief to the state Supreme Court last weekend, Bush’s attorneys also argued that the manual recounts violated the U.S. Constitution by effectively diluting the votes of voters in counties not undertaking recounts and by lacking meaningful standards.

But most legal analysts doubt that the federal courts--which so far have refused Bush’s entreaties to block the recount--will try to overrule the state Supreme Court.

“At this point, it is very unlikely the federal court will act,” Gerken said. “The Constitution is very clear that the states are vested with the power about how to conduct their elections and select electors to the electoral college. So without an egregious constitutional or federal statutory violation, it’s quite unlikely the federal courts will act. So far I haven’t seen anything that rises to that level.”

An equally important question may be whether the Republican-controlled Florida Legislature tries to act. In an interview this week, new House Speaker Tom Feeney, a Republican who represents a district outside of Orlando, said the Legislature might intervene to appoint the state’s electoral college slate if the dispute isn’t resolved by Dec. 12--the date on which the state would risk losing its 25 electoral college votes if it has not made appointments.

“You have the real-life possibility, as it has happened before in American history, for a state not to participate in selecting a president,” Feeney said.

Three separate sources say the Bush camp is seriously discussing whether to support such an initiative: Baker, without offering specifics, repeatedly invited the Legislature to intervene in the controversy. One possibility is that if the dispute is still entangled in federal court or other proceedings by Dec. 12, the Legislature could act to appoint a slate of electors--and presumably, since Republicans control a majority, they would pick one that favors Bush.

“In terms of the state Legislature, the problem is this: Will the American people see the Supreme Court as law and the state Legislature as politics? Or will the public remember that it’s the Legislature that writes the laws?” one senior Bush advisor said.

But other Republicans believe the party would invite a firestorm of criticism if the recount gives Gore the lead and the Florida Legislature nonetheless tries to give Bush the state.

And Gerken noted that any such effort by the Legislature to in effect override the state courts could escalate the conflict to an entirely new level. “If they do do that, we really are in a constitutional crisis,” she said.

A more plausible option for Bush if the recounts give Gore the lead may be to use Florida law to contest the results of the election after it is certified. Under Florida law, Bush could cite examples such as the disqualification of overseas military ballots, or evidence that some voters cast ballots both in Florida and New York, to argue that “the person other than the successful candidate was the person . . . elected to the office in question,” as the Florida statute provides.

Under that statute, contests to an election move directly to state court, without being heard by the secretary of state. And that means before long, this bitter dispute may be back before the seven Florida judges who Tuesday night turned the American presidential election on its head.

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Times Washington Bureau chief Doyle McManus contributed to this story.