Unanimous Ruling Sets New Deadlines for Tallies

Handing an important victory to Al Gore, the Florida Supreme Court ruled Tuesday night that manual recounting of presidential ballots could continue for several more days and the results must be included in the state’s final tally.

But the justices set a Sunday deadline for all work to be completed, which may cut short the canvassing in Florida’s biggest county.

Gore welcomed the decision, but an angry James A. Baker III, representing George W. Bush’s campaign, called the ruling “unacceptable” and suggested the GOP-run Legislature may intervene. Based on the hand counts completed so far, Bush clings to a 664-vote lead in Florida.

In its unanimous decision, the justices stated “an accurate vote count is one of the essential foundations of our democracy.”

“The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases,” the court said.

With that, the justices extended an order blocking Florida Secretary of State Katherine Harris from certifying the state’s election results pending returns from three counties that are hand tallying more than 1.7 million paper ballots.

“To summarily disenfranchise innocent electors in an effort to punish dilatory [election] board members, as she proposes in the present case, misses the constitutional mark,” the justices stated in their 42-page opinion, issued about 30 hours after Monday’s arguments.

Harris had intended to certify the results last Saturday, effectively handing Bush the presidency. The returns at that time showed the Texas governor ahead by 930 votes out of about 6 million cast.

Instead, the high court ruled that Harris must accept amended vote totals up to 5 p.m EST Sunday or, if her office is closed, as late as 9 a.m EST Monday.

Gore hailed the decision and again invited Bush to a meeting “to demonstrate the essential unity that keeps America strong and free.”

Speaking in the foyer of the vice president’s official residence, with running mate Joseph I. Lieberman standing one step behind, Gore urged that partisans on both sides tone down their rhetoric.

And even through Gore leads Bush in the popular vote, he renounced any attempt to win the White House by wooing electoral college voters away. “I completely disavow any effort to persuade electors to switch their support from the candidate to whom they are pledged,” he said. “I will not accept the support of any elector pledged to Gov. Bush.”

Bush, who was in Austin, Texas, made no public comments.

But a bristling Baker, his chief counsel in Florida, sharply condemned the high court ruling, calling it “unfair and unacceptable.”

“The Supreme Court rewrote the Legislature’s statutory system, assumed the responsibility of the executive branch, sidestepped the . . . trial court as the finder of fact . . . ,” he told reporters in Tallahassee. “It is simply not fair . . . to change the rules either during the game or after the game has been played.”

Baker said “no one should be surprised” if the state Legislature steps into the controversy. He did not specify what action the lawmakers might take. But earlier Tuesday, even before the high court ruled, some statehouse Republicans discussed the possibility of a special session to seat the state’s 25 electors--who hold the key to the White House, since both candidates are just short of the 270 electoral votes needed to win the Nov. 7 election.

Given GOP dominance of the Legislature, such a move would presumably benefit Bush.

In order to call a special session, both chambers would either have to approve it by two-thirds or get a proclamation from the governor--Bush’s brother, Jeb Bush.

The high court decision left unresolved one of the critical questions still surrounding the disputed Florida vote, declining to establish standards for county officials to use in determining which ballots should be counted.

The court said counties should do everything they can to determine the will of the voters and cited as “particularly apt” a 1990 Illinois Supreme Court ruling in which that court said that “to invalidate a ballot which clearly reflects the voter’s intent, simply because a machine cannot read it, would subordinate substance to form and promote the means at the expense of the end.”

At issue in Florida is whether election workers should tally “dimpled” ballots--those with the hole next to a candidate’s name indented rather than punched through. Attorneys for Gore assert the “dimples” should be read as a voter’s intent to back a particular candidate; practically speaking, Gore hopes a more lenient standard for tallying disputed ballots will boost his chances of overtaking Bush in the recount.

Even as the justices spent the day in deliberations, the hand counting of ballots continued across South Florida. Gore picked up 157 votes in Miami-Dade County and 106 in Broward. There was no change in Palm Beach County, where officials withheld updated numbers pending more careful scrutiny of disputed ballots.

Gore entered the day netting three votes in Palm Beach County; overall, the hand counting trimmed Bush’s statewide lead to 664 votes.

Soon after the high court ruled, officials in Broward County said they would work to meet Sunday’s deadline even if it meant counting ballots on Thanksgiving. In Palm Beach County, officials said they also would strive to meet the new deadline.

But in Miami-Dade County, the last to get started, officials questioned whether it would be possible to push forward their original target date of Dec. 1--five days after the new cutoff. “Certainly the question that we must answer is what additional resources we need to consider if we’re to meet the deadline imposed by the state Supreme Court,” said David Leahy, supervisor of elections.

In issuing its ruling, the high court seemed mindful of a Dec. 12 federal deadline for states to choose their official electors. The electoral college will meet six days later in state capitals around the country to pick the next president. The justices said they attempted to fashion a remedy that was both “fair and expeditious.”

The court was asked to answer two critical issues: When may a local canvassing board authorize a countywide manual recount, and must the secretary of state and the election commission accept those recounts when it certifies the election returns?

The court ruled that recounts were indeed authorized, rejecting Harris’ assertion they were only permissible in very unusual situations, such as a hurricane or if voting machines break down.

“Florida courts,” the justices said, “generally will defer to an agency’s interpretation of statutes and rules the agency is charged with implementing and enforcing. Florida courts, however, will not defer to an agency’s opinion that is contrary to law.”

The justices came down clearly on the side of Gore on the matter of hand counts versus reliance on tabulating machines. “. . . [O]ur society has not yet gone so far as to place blind faith in machines,” they said. “In almost all endeavors, including elections, humans routinely correct the errors of machines.

“For this very reason Florida law provides a human check on both the malfunction of tabulation equipment and error in failing to accurately count the ballots.”

Lacking clarification from the high court on which ballots should be counted, the next key test could come today in Palm Beach County, where Democrats will go to court seeking a more liberal standard.

The case could prove critical because Gore expected to net 1,000 or more votes in the recount of Palm Beach County, a solidly Democratic enclave. But he has picked up just three votes--though 557 “dimpled” Gore ballots have been set aside along with 260 “dimpled” Bush ballots, pending a court decision on whether they should be counted.

“We believe that they are not applying the correct standard,” said Dennis Newman, an attorney for the Florida Democratic Party and an election observer in West Palm Beach.

But Republicans asserted that Democrats were trying to change the standards because Gore was failing to reap as many votes as expected.

Palm Beach County’s three-member canvassing board has been setting aside dimpled ballots despite a judge’s ruling last week that members should not dismiss the ballots out of hand.

The county has abided by that order, said Charles Burton, a Democratic Palm Beach County judge who is the chairman of the canvassing board. But in most cases, the board has been unable to find “clear and convincing” evidence of the voter’s intent, Burton said.

Palm Beach County Circuit Court Judge Jorge Labarga is set to hear the Democrat’s case this morning. But his decision would only apply in Palm Beach County.

Compounding the confusion, each of the three counties conducting manual recounts has chosen to apply different standards on what constitutes a ballot deserving to be counted.

In Broward County, all ballots with dimpled chads or just one corner of the chad detached are being set aside to be reviewed by the three-member county canvassing board once all the other ballots are counted. Norm Ostrau, attorney for the canvassing board, said a stack of about 1,800 ballots will be examined one by one when the precinct and absentee votes are finished, perhaps Friday.

On Sunday, the Broward County Canvassing Board decided to liberalize its standard to consider any mark, pinprick, dimple or other indicator that could show the voter’s intent. That decision was a victory for the Democrats because Broward’s earlier position was that only chads detached from two sides could be considered votes.

In Miami-Dade County, the state’s most populous, counting teams are instructed to consider only ballots that have clearly punched holes or chads with at least two corners poked out.

A judge Tuesday rejected a Republican request to set more stringent standards for the election board to follow, saying, “It’s not my job to manage it.”

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Times staff writers Eric Bailey, Mike Clary, James Gerstenzang, Jeffrey Gettleman and Scott Gold contributed to this story.