Gore Confronts Tough Odds in Legal War and in Beating the Clock

Vice President Al Gore’s attorneys face an uphill battle in their efforts to overturn the outcome of the Florida presidential election in the next front of the legal war they are about to launch.

In the abstract, the Florida law governing election challenges looks good for Gore. The statute gives judges broad power both to overturn an election and to order corrective measures, such as a revote.

However, practical realities--particularly a lack of time to complete complicated litigation and any remedial action--are working against the vice president, and the difficulties increase daily, legal observers say.

“The hard thing is getting everything done” by Dec. 12, the date that Florida must certify its presidential electors under federal law, said Stanford University law professor Pamela Karlan. “The logistics are very onerous, and the clock is running.”

Gore’s attorneys plan to ask a Florida judge Monday to appoint a special master to oversee any recount or other remedy--an attempt to speed up the process.

Overturned Votes Were Local Races

Like virtually everything else in this battle for the U.S. presidency, the case will be unprecedented. “We have never had a challenge to the certification of a statewide election result,” said Orlando attorney David Cardwell, former director of the Florida Division of Elections.

Florida judges have overturned a number of elections, but all of them involved local races. The key standard is whether the ballots in dispute could affect the outcome of the election. Gore’s attorneys are likely to argue that actions in Miami-Dade, Palm Beach, Nassau and perhaps Seminole counties all could have made a difference.

“I am very optimistic,” said Gore campaign attorney Ron Klain. “It is a basic principle of Florida law that an election certificate is invalid if the candidate said to be the winner actually got fewer votes. We think we can prove that Al Gore got more votes than Texas Gov. George W. Bush and should be declared the winner in Florida.”

But USC law professor Erwin Chemerinsky, a Gore supporter, said an example of the hurdles facing the vice president was apparent on Thanksgiving Day when the Florida Supreme Court rejected the Gore team’s request to order the Miami-Dade election canvassing board to resume the recount it halted the previous day.

The three-member board said it could not complete a full recount by 5 p.m. EST today--the deadline set by the Supreme Court--and it rejected the option of hand counting 10,750 ballots that registered no vote for president when run through a counting machine.

Gore had picked up 157 votes when the board halted the hand count and certified its previous results based on a machine recount. So Gore got none of those additional votes. Democratic attorney Kendall Coffey said the canvassing board violated the spirit of Tuesday night’s Florida Supreme Court ruling that permitted hand recounts to continue.

“They had an important duty in a time of crisis, and they walked off the job,” Coffey said.

Gore’s attorneys will again challenge the board’s action Monday when they file their lawsuit in Tallahassee, Fla., contesting the results.

‘Contest’ Occurs After Certification

Up to now, the challenges have been raised under the “protest” provision of Florida election law. The new lawsuit will be brought under the “contest” provision, which comes into effect after results are formally certified by the secretary of state, which is expected to occur today.

Columbia University law professor Samuel Issacharoff said he doubted that Florida courts would require a recount. “The Florida Supreme Court has not wanted to get involved in the mechanics of counting the votes. They have not ordered the counties to do anything.”

Gore’s lawyers are expected to argue that the Miami-Dade board had no choice but to complete the recount. They point to a provision in state law that says counties “shall manually recount all ballots” if officials find “an error in the vote tabulation which could affect the outcome of the election.”

Some legal experts said Gore’s lawyers must clear at least two hurdles to obtain any further recount in Miami-Dade.

“They have to argue the recount is mandatory, not discretionary, and there’s nothing in the Florida Supreme Court opinion to say that,” Chemerinsky said.

Florida law gives the county election boards the power to count, and if necessary, recount votes.

Even if Gore’s attorneys convince a judge that a recount is required under the law, they must also persuade the courts to extend the deadlines for tallying the votes. Chemerinsky says he sees nothing in the Florida Supreme Court ruling to encourage Gore’s lawyers.

The state justices “were obviously troubled by the upcoming Dec. 12 deadline [for choosing electors],” Chemerinsky said. “Would they be willing to extend that deadline? Nothing in the opinion suggests a positive answer” for the Gore side.

Gore Team Cites ‘Will of the People’

Gore’s attorneys disagree. They note that the state Supreme Court stressed that “we consistently have adhered to the principle that the will of the people is the paramount consideration” and that the only way to determine that will is to make sure all legitimate votes are counted.

“The basic principle . . . is you are going to have an election, the votes should be fully counted. They have not been fully counted. . . . That is what we are fighting for here,” Klain said.

The Gore team also plans to challenge the Palm Beach County tally, contending that the election board should have counted ballots that were indented but not punched through cleanly.

But in this instance as well, a judge may be reluctant to rule that “dimpled ballots” must be counted. “Gore’s lawyers will say a dimple is a reflection of a vote, but Bush’s lawyers can argue a dimple is ambiguous,” Chemerinsky said.

Cardwell noted that the state Supreme Court left it to the discretion of each canvassing board to determine what constitutes a valid ballot. Both Cardwell and University of Miami law professor Terence Anderson said a trial court and the Florida Supreme Court may well defer to the judgment of local canvassing boards. “As long as the board was looking at each ballot and making a judgment, it may be difficult” for Gore to prevail, Anderson said.

The Democrats also said they plan to contest the outcome in Nassau County, a Republican stronghold in northeast Florida. On Friday, Nassau’s canvassing board decided to void a machine recount and return to its original election night tabulation--costing Gore 52 votes. Gore attorney David Boies said that decision violated Florida election law.

It is also possible that the Democrats will challenge the outcome in Seminole County, where a challenge is already pending--a suit filed by a Gore supporter. Gore’s attorneys may contest the result there because Republican officials helped thousands of Republican absentee voters fill out their ballot applications correctly.

But even if this is judged as unfair, it could be difficult for a judge to come up with a solution. “If the remedy is to throw out” thousands of absentee ballots, Chemerinsky said, “that would disenfranchise all those who voted legitimately.”

On the other hand, there have been instances where Florida courts have voided all absentee ballots--including the 1997 Miami mayor’s election, where there were allegations of widespread fraud.

A trial judge ordered that the election be held again, but a state appellate court overruled him, holding that all absentee ballots should be thrown out. That changed the outcome of the mayor’s race.

In addition to the Democratic lawsuit, political and legal observers say there also is the possibility the Republicans may file what some view as an “insurance policy” challenge to the certification. Such a “contest” might be based on alleged irregularities in the manual recount in Broward County, where Gore has picked up more than 500 votes, and because of decisions made by several county canvassing boards to exclude some absentee ballots from overseas military personnel.

Such a suit would be an attempt by Bush’s attorneys to preserve his options while awaiting the outcome of the case in the U.S. Supreme Court and the new Gore litigation in Florida state court. On the other hand, some legal observers said that it might be difficult for Bush to have legal standing to “contest” the outcome if he is the winner when the results are certified later today.