Study Points to Miscalculation by Gore Forces

Could Al Gore have won?

That question lingers in the aftermath of an unprecedented inspection and analysis of 175,010 presidential ballots that were rejected by tabulating machines or county canvassing boards during last year’s 36-day presidential election recount struggle in Florida.

Gore partisans have charged ever since that the Democratic candidate was unfairly denied the White House because the U.S. Supreme Court interceded to suspend the counting of disputed Florida ballots.

But an exhaustive review of the ballots, commissioned by The Times and other media organizations, suggests that Gore’s advisors made a fundamental miscalculation during the heat of the battle by focusing their initial attention--and their ultimate legal strategy--on demands to recount only “undervotes,” the ballots that showed no evident choice for president.

The study, which was reported Monday, shows that President Bush would have won almost any hypothetical recount involving the state’s 61,190 undervotes, albeit generally by margins even smaller than his final 537-vote victory.

Gore’s only likely chance for success instead was in a manual recount of the state’s nearly 114,000 “overvotes”--ballots that showed more than one choice for president. Most were clearly spoiled, but Gore had hundreds of potentially valid votes among the optically scanned paper ballots used in small counties that mostly were carried by Bush.

Gore’s lawyers never asked for that review, although the candidate proposed at one point that he and Bush agree to abide by the results of a statewide recount of all uncertified ballots. The Republican camp declined.

“The Bush campaign rejected a statewide recount when Al Gore proposed it a week after the election, then used the court system to impede the limited recounts that Gore requested under Florida law,” said senior Gore aide Mark Steinberg, a lawyer in the Los Angeles firm of O’Melveny & Myers.

Although Florida law seemed to lay out no basis for seeking a statewide recount, some Gore strategists proposed that Gore go to court in as many of Florida’s 67 counties as possible during the three days after the election--the deadline under Florida law.

“My belief was that, once we started the process, most if not all the counties would have instituted a manual recount just to avoid subsequent criticism,” said John Hardin Young, a Washington lawyer who was on the Gore team.

And Young said that when you’re behind, your best chance of getting enough votes to turn the result around is to seek as broad a recount as possible.

But Warren Christopher, the leader of the Gore team during the 36-day recount, turned thumbs down. He said Gore had a legal basis to order a recount only in counties where reported voting irregularities suggested one.

Instead, in the hours after election night, Gore’s lawyers briefly considered challenging the two-page “butterfly ballot” that produced more than 19,000 overvotes in heavily Democratic Palm Beach County. But they concluded that no judge was likely to throw out those results and order a new election, because local Democrats had approved the ballot design.

So the Gore team ultimately pressed in court only for a manual recount of the vote in four heavily Democratic counties: Broward, Miami-Dade, Palm Beach and Volusia. The study commissioned by the consortium found that approach was doomed to failure because the four counties’ ballots would merely have whittled Bush’s lead down to about 200 votes.

The Gore camp almost got a statewide recount in spite of itself. The Florida Supreme Court ordered one--but the media-commissioned study found that it too probably would have left Bush with a small lead.

It all became academic when the U.S. Supreme Court ordered the recount stopped, and Florida finally provided Bush with the electoral votes he needed to win the presidency.

To be sure, the study gives further grist to Democrats who insist that more Florida voters went to the polls to vote for Gore than for Bush but spoiled their ballots in greater numbers.

The review showed nearly three times as many spoiled ballots contained a mark or punch for Gore than for Bush. The overwhelming majority could not be counted, however, because they also contained marks for other candidates. Thus it’s impossible to know the voters’ preferences.

With the nation now focused on terrorism, the expanding war in Afghanistan and Monday’s crash of a passenger jet in a residential neighborhood of New York, the study sparked little of the partisan passions that gripped the nation a year ago. “It seems like a world away--a generation away--after Sept. 11,” Gore’s running mate, Sen. Joseph I. Lieberman of Connecticut, told the Orlando Sentinel during a visit Sunday to Florida. “These studies are fascinating. But nothing will change.”

By the same token, the study’s findings are unlikely to settle partisan disputes from last year. For one thing, the study wound up on the same murky ground as the election. Marc Racicot, a former Montana governor who became a fierce Bush advocate in Florida, said the election was “subject to human frailties.”

Most hypothetical recount scenarios produced results so close that they might have been the result of the state’s sloppy bookkeeping, vague rules and arbitrary decisions. Although the review found as many as 23,799 additional potentially valid ballots for Gore or Bush, the two nominees remained within a few hundred votes under almost every possible set of rules for recounting the ballots. Officials in both parties said it was time to look ahead, especially given the events of Sept. 11.

“I have consistently said, ‘George Bush has been sworn in,’ ” said Terry McAuliffe, chairman of the Democratic National Committee. “We all support him. We support him now more than ever.”