- The Washington Times - Wednesday, November 29, 2000

Vice President Al Gore's presidential chances are plunging with the force of gravity. George Bush's certification as the winner in Florida in accord with state law, (even with the exotic interpretation of the Florida Supreme Court in the Palm Beach County case under challenge in the U.S. Supreme Court), entitles him to its 25 electoral votes. The certification apparently means Mr. Bush will be the 43rd president of the United States. Mr. Gore's only hope is that his post-certification litigation-styled "contests" succeed with the decisiveness of Napoleon at Austerlitz.

And even that may not be enough. When electoral votes are counted by Congress on Jan. 6, the Electoral Count Act of 1887 seems to prohibit disturbing the certification of Bush electors except by simple majorities in both the House and Senate. But Republicans control the former with room for a few defections. Further, Florida's Republican legislature could fortify Mr. Bush's certification victory with a statute directly appointing Bush electors.

Mr. Gore, in any event, seems doomed to lose his three-ring circus contests before Leon County Circuit Judge N. Sanders Sauls. Regarding Nassau County, says the relentless candidate, the local canvassing board should have accepted a mechanical recount that reduced the original count by more than more than 200 votes, a statistical oddity because every other county sported corresponding increases. The board reverted to its facially more reliable Election Night total, costing Mr. Gore 52 votes relative to Mr. Bush. Mr. Gore must convince the circuit judge that the canvassing board by law was required to prefer the second tabulation despite strong reason to question its accuracy.

Recounts, however, aim to increase, not diminish reliability. That statutory objective is subverted if recount figures are automatically endorsed when the results are patently incredible. Mr. Gore's argument not only turns the recount purpose on its head, but collides with his polemical refrain that every vote should be counted. His Nassau County argument would void the votes of hundreds.

Palm Beach County raises an equally formidable legal hurdle. Mr. Gore insists that Secretary of State Katherine Harris' refusal to accept a partial manual recount by the canvassing board violated state statutes and the Florida Supreme Court's Palm Beach County decree. But Florida law stipulates that manual recounts must include "all ballots." Partial recounts are taboo because easily skewed to favor a particular candidate. Moreover, the Palm Beach County opinion uniformly speaks of full manual recounts without even a sotto voce hint that a partial count would be legal. For instance, it explains: "[A] candidate can request a manual recount at any point prior to certification by the board, and such action can lead to a full recount of all votes in the county. Although the Code sets no specific deadline by which a manual recount must be completed, logic dictates that the period of time required to complete a full manual recount may be substantial."

Mr. Gore also complains about the alleged stinginess of the Palm Beach County canvassing board in refusing to count more than 8,000 ballots without a completely punched rectangle for a presidential candidate. But the board applied a "voter intent" standard that the Florida Supreme Court itself haloed in Palm Beach, which was later reiterated by a state circuit judge. And its application smacked more of indulgence than strictness. Reminiscent of U.S. Supreme Court Justice Potter Stewart's immortalized definition of obscenity "I know it when it see it," canvassing board Judge Charles W. Burton preached that to detect voter intent, "You have to feel it in your heart." Mr. Gore's demand for even more leeway is outlandish.

His third arrow aims at Miami-Dade County. Its canvassing board reversed an initial decision for a full manual recount because of a clear inability to satisfy the Palm Beach County Nov. 26 deadline. Mr. Gore argues both that the U-turn and its rejection of votes that had been duly counted at that time were beyond its authority. But the Palm Beach County opinion declared that, "The decision whether to conduct a manual recount is vested in the sound discretion of the [canvassing] Board." Neither the opinion nor statutory language indicates that such discretion excludes erasing an earlier decision. Further, after approximately 20 percent of its precincts had been manually recounted, Miami-Dade sensibly halted because of the futility of expecting a timely completion. Did the law require that the board blindly pursue a dead end?

Additionally, the Florida Supreme Court on Thanksgiving rebuffed Mr. Gore's demand that Miami-Dade be ordered to continue its recount.

As in Palm Beach County, Mr. Gore claims that Miami-Dade should have counted 10,750 ballots that registered no vote for president when counted by machine. He is asking Judge Sauls (or special masters) to undertake that Rosetta Stone-like task of discerning voter intent from ambiguous chads. But no final reliable deciphering (including appeals up to the Florida Supreme Court) seems possible before the Dec. 12 date for appointing Florida's electors. And deciphering by an impartial judge (in contrast to partisan county canvassing boards) may not benefit Mr. Gore in any event.

One Democrat suit that is a companion to Mr. Gore's seeks to invalidate thousands of impeccable absentee ballots in Seminole County because the Republican Party provided voter ID numbers on ballot applications. Another before the Florida Supreme Court demands a new election in Palm Beach County because of the confusing "butterfly ballot." These are like long-shot desperation passes in a Super Bowl fourth quarter.

Surprise O'Henry endings, however, can never be ruled out when politics and the judiciary intersect.

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