- The Washington Times - Wednesday, December 6, 2000

Even an abrupt concession by Vice President Al Gore won't automatically end a Democrat's lawsuit that goes to trial today as a final attempt to erase George W. Bush's certified 537-vote victory and reverse the entire presidential election.

The case was filed by a Florida voter who already committed $100,000 to back Mr. Gore's campaign and portrays himself as a noble paladin acting alone to preserve democracy.

The trial will be in Tallahassee on Harry N. Jacobs' crusade to throw out 10,006 absentee ballots for Mr. Bush and 5,209 votes for Mr. Gore because more than 2,100 ballot applications were changed to comply with state law. No vote tampering is involved.

Florida court precedents appear to bar invalidating so many votes for acts that do not involve the eligibility of a voter or the validity of his ballot, but that has not stopped the attack on Seminole County, and a similar case in another court involving Martin County.

Still, should Mr. Jacobs win his lawsuit a prospect that spurs wide skepticism Mr. Gore would score a net gain of 4,797 votes and clear victory in an election now separated by 537 votes.

"Many extraordinary factors have to collide so that one voter in one state is able to bring a lawsuit that would change the occupant of the White House," said Charles Connor, a partner in a Washington firm involved in several key Florida recount cases.

The all-or-nothing verdict overturn the election or dismiss the case will occur in the court of Circuit Judge Nikki Clark, a former aide to Democratic governors whose "impartiality might reasonably be questioned," Bush lawyers said in a failed effort to disqualify her.

Earlier this year, Judge Clark heard a case involving the National Association for the Advancement of Colored People of which she is a member. She also is said to resent being passed over three weeks ago by Florida Gov. Jeb Bush, a Republican, for promotion to the appeals court.

A key issue that Bush attorneys plan to explore in a trial scheduled for one day is the extent to which the Democratic Party and the Gore campaign have advised the Longwood lawyer on his so-called private lawsuit.

Mr. Gore yesterday repeated his assertion that he is not involved in the effort to throw out more than 15,000 votes, and complained about a double standard for Democrats that was reported in the press but is not part of the lawsuit.

"I'm not a party to it, but I've read about it, and apparently the Democratic Party chair was denied the opportunity to even look at the list of applications," Mr. Gore told reporters in the White House driveway.

"Now that doesn't seem fair to me," Mr. Gore said.

Despite public denials, Mr. Jacobs admitted in a sworn pretrial deposition Saturday that before filing the lawsuit, he sought advice from Mitchell W. Berger, a Fort Lauderdale lawyer and Gore fund-raiser who is deeply involved in the failed recount case now before the Florida Supreme Court. Mr. Jacobs also testified he consulted other Democrat strategists.

But after thinking about the question, he said "No" when a CBS reporter asked yesterday if the Gore campaign is involved in his lawsuit.

Mr. Jacobs for 12 years has been an acquaintance of Bob Poe, a Seminole County neighbor who is chairman of the Florida Democratic Party. Mr. Poe said Mr. Jacobs put $50,000 into Democratic coffers during the Gore campaigns and another $50,000 into issue ads.

A Miami Herald profile portrayed Mr. Jacobs as an unlikely warrior who worked in his family's New Jersey fish market, and delivered milk while attending night classes at the University of Miami law school.

Mr. Jacobs charges that two Republican operatives overreached what the law allows in helping 2,130 persons complete requests for blank absentee ballots, calling the actions fraud, although those involved were all registered voters.

A contractor omitted voter identification numbers from information pre-printed on cards that registered Republicans could use to request absentee ballots, simply by signing the card and adding the last four digits of their Social Security numbers.

The lawsuit said Florida Republican Party employee Michael Leach and Republican volunteer Ryan Mitchell were allowed to add voter identification numbers to repair applications rejected by Seminole County supervisor of elections Sandra Goard.

"Such conduct, besides constituting a third-degree felony under Florida law, changed the outcome of the presidential election," Mr. Jacobs' lawsuit said.

He charged that Miss Goard allowed the men unsupervised access to her office for about 10 days during which they "fraudulently altered thousands of absentee request forms by adding missing voter identification numbers to each form, forms that had already been signed by the designated elector appearing on each form."

"The only person who can ask for a ballot is the voter," said Mr. Jacobs' volunteer attorney, Alan G. Greer, who said in an interview that he and his Miami law firm Richman Greer Weil Brumbaugh Mirabito & Christensen have been active with the Democrats over the years.

Republican lawyers in Florida were too busy to discuss the case, but Mr. Connor predicted it will be tough for Mr. Jacobs to win.

"It seems too draconian that any judge would throw out all the absentee ballots because some were infected," Mr. Connor said.

As precedent, Mr. Jacobs cites a 1998 Miami case in which Florida courts ruled that widespread fraud so tainted a batch of absentee ballots that all absentees were dumped, reversing Miami's mayoralty election.

A state law amended after that debacle requires that only the voter, a family member or guardian may ask for an absentee ballot. The portion of Florida Statute 101.62 cited by Mr. Jacobs does not specify the changes are so essential that violators' ballots must be invalidated.

Florida court precedents bar invalidating ballots of qualified voters for technical reasons unless a law specifies a particular act is so essential to election integrity that a tainted ballot must be discarded. Otherwise, it is "not mandatory" to invalidate questioned absentee ballots, courts have said.

Since 1975, the key decision on that point has been Boardman vs. Esteva a lawsuit filed when Edward F. Boardman rode a wide margin among absentee voters to defeat Henry Esteva by 249 votes for a judgeship.

Florida courts up to the state Supreme Court refused to throw out some 1,450 absentee ballots challenged by Mr. Esteva, despite proven irregularities and violations of the law. The U.S. Supreme Court let that decision stand.

"That seems to me to be a very stout argument," Mr. Connor said.

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