Bush Holds Slim Lead; Gore Prepares for Further Court Action

In a last-ditch effort to overcome George W. Bush’s lead, Vice President Al Gore is preparing to ask the Florida courts to reopen the manual recounts in two key counties, a senior Gore legal advisor says.

If Gore still trails when the final results are certified at 5 p.m. EST today, the vice president on Monday will ask the state courts to appoint special officials to both resume the manual recount in Miami-Dade County and to review thousands of disputed ballots in Palm Beach County, should the canvassing board there continue to disqualify most suspect ballots, the advisor says.

Though the hand recount in Broward County has produced an unexpectedly large gain for the vice president, Gore’s camp is bracing for Bush to remain ahead when all Florida counties report final results to Florida Secretary of State Katherine Harris this afternoon, as mandated in last week’s state Supreme Court decision; that would allow Harris to certify Bush as the official winner.

But Gore advisors say that, under the provisions of state law that allow the loser to formally contest an election, they are prepared to argue in court Monday morning that a variety of irregularities resulted in Bush improperly being awarded the state--whose 25 electoral college votes would give him the presidency.

David Cardwell, the former Florida elections commissioner, says that, while Gore would face an uphill challenge in persuading a court to overturn a certified election, his position is not hopeless because there is precedent for courts taking control of recounts in the state.

“They are still going to have a very hard time to get a judge to overturn the results that are certified,” Cardwell says. “But it’s possible.”

Meanwhile, senior Bush advisors say they have not ruled out formally contesting the election if the recounts put Gore ahead. If Bush files such an action, aides say, he will likely argue that the standards used in the manual recounts were “unreliable and subjective,” says a senior Bush legal advisor.

“I think the Broward results and the Palm results aren’t worth anything in terms of reliability as we lay out the case of the inconsistencies that have gone on there,” says the advisor. “This is all so thoroughly unreliable and subjective.”

Either way, it now appears virtually certain that the legal and political battles in Florida will continue through the week as both sides brace for the U.S. Supreme Court’s Friday hearing on Bush’s challenge to the recounts.

Under Florida law, a losing candidate can file a formal contest to the result if he can present evidence that “would show that a person other than the successful candidate was the person . . . elected to the office in question.” Election contests are heard in the state courts, with the Democratic-dominated state Supreme Court holding the final word; Harris, a Republican who was active in Bush’s election campaign, has no role in the process.

At the moment, Gore officials are the ones who most expect to be trailing this evening, when Harris could certify the results. Though Gore has gained more than either camp expected through the manual recount in Broward County, both sides still generally expect that Palm Beach County’s recount will not produce enough votes for him to overcome Bush’s lead--though Republican anxieties increased during the day Saturday, in step with Gore’s rising totals in Broward.

Earlier in the week, it appeared that Gore could face significant pressure to concede if he still trailed at the deadline tonight. But the escalating Republican attacks on the recount process--which have ranged from angry demonstrations in Miami to a U.S. Supreme Court filing in Washington--appear to have had the inadvertent effect of closing ranks among Democrats.

If Gore files a contest to the election, it appears likely to have at least four components, according to the senior Gore legal advisor.

First, Gore will ask the courts to appoint a special master to complete the manual recount that the Miami-Dade canvassing board abruptly terminated last week. Under that request, the court appointee would seize control of the recount process from the canvassing board, the advisor says. To shorten the time needed for the task--and perhaps to increase his chance of gaining votes--Gore may ask the court only to recount the roughly 10,000 ballots in the county on which the automatic tabulating machines failed to record a presidential preference. Gore aides believe Democrats may be disproportionately represented among these “undervotes.”

Second, the advisor and other sources say, the campaign will ask the courts to award Gore the 157 net new votes that he had garnered in Miami-Dade County before the county abandoned the recount.

The county’s canvassing board halted the recount Wednesday, saying there was not enough time to finish by today’s deadline set by the state high court.

Cardwell, the former state election official, says there is no precedent for courts awarding a candidate votes from a partial recount. But he believes Gore is on stronger ground in requesting that the court appoint a master to conclude the Miami-Dade recount.

In a Polk County commissioner’s race that he worked on a few years ago, Cardwell says, a court appointed just such a master to finish a recount after the county canceled it. “When they contest Miami-Dade they may be able to get the court to order the recount to continue.”

Third, the sources say, Gore will ask the courts to reverse Nassau County’s recent decision to throw out the results of its machine recount and instead submit results from election night. County officials say they reverted to the initial count because the recount produced 218 fewer total votes than the election night tally; but the effect of switching back to the first result was to increase Bush’s lead in the county by 52 votes.

Fourth, unless the final stages of the manual recount in Palm Beach County produce a sharp increase in votes for Gore, the campaign is virtually certain to target that process in its challenge as well, the senior legal advisor says.

On that front, the advisor says, the campaign would argue that the Palm Beach County canvassing board applied too stringent a standard in assessing which ballots contained evidence of voter intent to support a presidential candidate. The campaign would likely ask the court to appoint a special master in Palm Beach County as well to review probably between 1,000 and 2,000 ballots that the canvassing board rejected but which Democrats believe contain evidence of voter intent to choose Gore.

Cardwell says Gore may have a tougher sell convincing a court to substitute its judgment in assessing ballots for the canvassing board’s--a view echoed by the senior Bush attorney. “It is conceivable that a court would defer to the discretion of a canvassing board,” says the Bush advisor. “That is one possibility. There is a strain of that in your normal everyday garden-variety election law cases.”

To build their case against the results of the Palm Beach recount, Democratic attorneys have collected as many as 13,000 affidavits, sworn complaints and other communication from voters. Significantly, these complaints argue that not only was the fabled “butterfly ballot” confusing but also that election equipment failed to function properly, preventing many voters from accurately casting a ballot for the vice president.

This testimony, contained in dozens of affidavits reviewed by The Times, represents an important shift in emphasis for Gore. It suggests his camp is downplaying the hope that courts might order a revote in Palm Beach County because of the butterfly ballot, which listed presidential candidates in a side-by-side pattern that many voters complain was confusing.

Instead, Gore is now preparing to argue that given the prevalence of mechanical errors and confusion, the Palm Beach County canvassing board applied an overly restrictive standard to measuring which ballots contained evidence of voter intent to support Gore or Bush.

In the affidavits, dozens of voters complain they were unable to properly align their ballots on the punch card machines used in the county or encountered difficulty trying to push through the “chad” with their stylus.

For instance, Liz Campbell says that when she placed her voting card in the machine, “none of the holes lined up with any of the arrows” on her ballot. When she asked an election worker what to do, she was told “just punch the hole closest to my arrow,” says Campbell, a 19-year-old registered Republican. As a result, she says, she believes she voted for Pat Buchanan rather than Gore as she had intended.

In another affidavit, poll worker Doris Roth says her precinct experienced severe problems with voting machines. “The elderly were having a problem punching through because the holes were not lined up properly,” she testified.

Likewise, Stephen D. Uman of Boca Raton says in an affidavit that “the arrow for the Gore/Lieberman ticket fell between two holes. I tried to adjust the ballet booklet and card, but nothing moved, nothing changed. I wound up punching the hole closest to the arrow. . . .”

In addition to this evidence, the Gore camp is likely to hold up Broward County as a counter-example, arguing that it produced more votes for both Bush and Gore than in Palm Beach County because it applied the “voter intent” standard more accurately.

The senior Bush advisor says that if the Gore campaign persuades Florida courts to reconsider the Palm Beach County canvassing board’s decisions on disputed ballots, it would likely become part of the Republican claim before the U.S. Supreme Court that Florida officials are changing the rules of the election after election day. “To me that smacks of the issues that caused the Supreme Court to take our Florida Supreme Court case,” says the advisor.

Finally, Gore aides say they haven’t ruled out adding to the contest a challenge to the handling of absentee ballot applications in Seminole County.

In that county, a local election official allowed GOP workers to correct incomplete absentee ballot applications from Republicans but apparently did not notify other county residents whose ballot applications were flawed. Those actions have already drawn a lawsuit from a Democratic activist; that case will be heard Wednesday in Seminole County court.

If those absentee ballots were disqualified, Bush would lose about 4,800 net votes, enough to throw the state to Gore under almost any scenario.

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Florida Tally

Net gaains of ongoing uncertified hand counts:

PALM BEACH: BUSH +10

BROWARD: GORE +567

REVISIONS (8 counties): BUSH +91 *

When these votes are approved Bush’s official lead od 930 narrows to: 464

Results as of 10 p.m. PST