- The Washington Times - Wednesday, November 22, 2000

TALLAHASSEE, Fla. The Florida Supreme Court ruled unanimously last night that hand recounts in Broward, West Palm Beach and Miami-Dade counties must be added to the state's total if completed this weekend.

"An accurate vote count is one of the essential foundations of our democracy. Twenty-five years ago, this court commented that the will of the people, not the hyper-technical reliance upon statutory provisions, should be our guiding principle in elections," the justices wrote.

The decision by a court of six Democrats and one "independent," was not unexpected, but it was nevertheless a victory for Vice President Al Gore. However, unless the so-called "dimpled" ballots are counted, which still is not certain, Gov. George W. Bush's 930-vote lead might withstand the recount.

Mr. Gore has gained fewer than 300 votes so far in manual recounts in the three Florida counties.

The court's 42-page decision was remarkable mostly for its unusually harsh partisan denunciation of Secretary of State Katherine Harris, who had wanted to certify the Bush margin in accordance with her reading of Florida law. The justices accused her of having attempted to "disenfranchise" those whose votes were picked up in the recount.

"To allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory Board members, as she proposes in the present case, misses the constitutional mark," the court wrote.

The justices said Mrs. Harris, a Republican, had abused her discretion in using the deadline of Nov. 14 as set out in state law but then set a deadline of their own, at 5 p.m. Sunday. All ballots must be recounted by that deadline.

The court indicated it established its timetable to give either Mr. Gore or Mr. Bush time to protest the certification of electors, yet still leave time for that issue to be resolved so Florida's votes count when the Electoral College meets on Dec. 18.

"The Florida Supreme Court has now spoken and we will move forward now with a full, fair and accurate count of the ballots in question," Mr. Gore said last night.

"I don't know what those ballots will show. I don't know whether Governor Bush or I will prevail, but we do know that our democracy is the winner tonight."

Mr. Gore also declared it is now appropriate to begin work on a presidential transition. And he disavowed efforts by Democrats to "flip" members of the Electoral College who had been pledged to Mr. Bush.

The Bush campaign attacked the ruling in sharp language, with former Secretary of State James A. Baker III saying the justices had "changed the rules" of the election and "invented a new system for counting the election results."

Mr. Baker made clear he was not ruling out any legal challenges. In addition, he hinted broadly that the Florida Legislature with both houses under GOP control might attempt to pass legislation to "affirm the original rules."

"It is not fair to change the rules and standards governing the counting or recounting the votes after it appears one side has concluded that is the only way to get the votes it needs," he said.

"All of this is unfair and unacceptable. It is not fair to change the election laws of Florida by judicial fiat after the election has been held."

Mr. Baker said there was no decision on whether to appeal the ruling to the U.S. Supreme Court, but said: "We intend to examine and to consider whatever remedies we may have to correct this unjust result."

Issuing their ruling exactly two weeks after polls closed in the presidential election, the seven Democratic justices overturned a lower court ruling that would have allowed Florida's Republican secretary of state to bring closure to the contest by declaring Mr. Bush the winner on Saturday.

Mrs. Harris, invoking the discretion vested in her by Florida law, last week decided not to accept hand recounts after the statutory deadline of 5 p.m. Nov. 14. Her decision was upheld by Leon County Circuit Judge Terry Lewis, who concluded she had exercised "reasoned judgment" in rejecting the tardy tallies.

Florida law allows a protest to be lodged before certification and a contest afterward. But Bush lawyers argued in papers filed yesterday with the Florida Supreme Court that the election should have been certified on Monday in order to allow for enough time for the loser to contest the results.

During oral arguments from both sides on Monday, the justices seemed deeply concerned about whether there would be enough time for Florida's 25 electors to be chosen by the legal deadline of Dec. 12, or six days before the Electoral College meets.

"Florida statutory law at the very minimum provides for a 22 to 27 day period for contesting an election," Bush lawyer Barry Richard wrote yesterday. "Counting backward from Dec. 12, 2000, this would require that the certification of election be completed by Nov. 20, 2000, at the very latest."

Last night's ruling came just as Mr. Gore appeared to be gaining hundreds of votes in unofficial hand recounts in Broward and Miami-Dade counties. With thousands of additional ballots still to be counted, Gore supporters are confident they can overcome the Texas governor's slender lead.

The decision also magnifies the importance of ballots on which there is a "dimple," or tiny bulge, in the "chad," or tiny square of paper denoting a particular candidate. The Gore team maintains that hundreds or even thousands of voters tried to vote for the vice president, but failed to fully dislodge the chad when pushing down on the ballot with a metal stylus.

In an ominous sign for the Bush camp, the justices last night cited an Illinois court ruling that essentially concluded that the chads need not be fully dislodged. That ruling, which was offered by Gore lawyers in their written arguments before the Florida high court, called for making every effort to divine the intentions of voters.

"The purpose of our election laws is to obtain a correct expression of the intent of the voters," the Illinois court held.

"Our courts have repeatedly held that, where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law."

By relying on "the Illinois standard" the Florida Supreme Court confirmed that "it is the intent of the voter, not how the voter manifests his or her intent," that matters, said David Boies, a lawyer for Mr. Gore.

While ballots with dimples are the most promising for Mr. Gore, they are also the most hotly contested. Many of them have been disputed by Republican and in some cases Democratic observers as the hand counts have proceeded. Each disputed ballot is set aside for final adjudication by each county's three-member canvassing board, all of whom are dominated by Democrats.

While last night's ruling was a major victory for Mr. Gore, it also sets up some stringent deadlines that might complicate his bid for the White House. For example, officials in Miami-Dade have said they will not complete their recount until Dec. 1, or at least five days after the deadline imposed by the Florida Supreme Court.

With the canvassing boards setting aside the contested ballots until the rest of the votes are tallied, there might not be enough time for all the dimples to be adjudicated. While more teams of counters can always be added to expedite the counting of undisputed ballots, all disputed ballots must be individually examined by the sole three-member canvassing board in each county.

The Texas governor is expected to now pursue an appeal with the 11th Circuit Court of Appeals in Atlanta. The federal appeals court earlier declined to get involved in the case as long as it was still under consideration by the Florida Supreme Court, but invited the Bush team to resubmit their arguments later.

In fact, the appeals court early yesterday set a briefing schedule for Monday in this case. The Bush team argues that it is unconstitutional to ferret out previously undetected votes in a handful of Democratic counties because it dilutes the votes of citizens in the counties where no hand counts occurred.

Mr. Gore was clearly buoyed by last night's ruling.

"Now that we know the process will continue, I once again urge that Governor Bush and I meet to demonstrate the essential unity that keeps America strong and free," he said. "Together, let us testify to the truth that our country is more important than victory."

Previously, Mr. Bush had declined an offer from the vice president to meet, saying there would be time to get together after the election.

Mr. Gore also repeated his call that "both Governor Bush and I should also continue to urge our supporters to tone down their rhetoric." Members of the Gore team have referred to Mrs. Harris as a "hack," a "crook" and a "Soviet commissar."

Finally, Mr. Gore tried to distance himself from a behind-the-scenes campaign by Democratic activist Bob Beckel to "flip" Bush electors.

"Some of our own supporters have emphasized the fact that we won the national popular vote, but our Constitution requires victory in the electoral college," the vice president said. "I completely disavow any effort to persuade electors to switch their support. I will not accept the support of any elector pledged to Governor Bush."

The Florida Supreme Court ruling came just hours after Bush lawyers implored the high court not to wade into the debate over "dimpled" ballots and warned that it may already be too late to assure the selection of Florida's electors.

Bush lawyer Barry Richard complained that Mr. Gore's legal team overstepped the parameters of the case by asking for standards that would govern whether to count ballots on which there are dimples in the "chads," or tiny squares of paper denoting candidates.

"The court is without power to decide this question of ballot standards because there is no case before them raising the question," Mr. Richard wrote in papers filed with the Supreme Court yesterday. "At a minimum, if the court does proceed, we request an opportunity to be heard on this question."

Another Bush lawyer explained to The Washington Times that the Gore team introduced the question of dimpled ballots late Sunday, leaving the Bush team insufficient time to draft a written response before oral arguments on Monday. So the response was submitted yesterday with the hope that the Supreme Court would read it before making any decision.

Mr. Bush's brother, Florida Gov. Jeb Bush, yesterday called for fairness in any ballot-counting standard that might be established.

"The process should be fair," he told reporters. "If they create a criteria, I hope they adhere to it. I hope it's not to determine how many votes you need, and then change the rules to be able to get to the number you need.

"That would put an asterisk on the election to the point where I think it would be a great disappointment to a lot of people," he added.

Yesterday's court filing also raised the larger question of whether there would be enough time for Florida's 25 electors to be chosen by the legal deadline of Dec. 12. The court's seven justices seemed deeply concerned about meeting that deadline when they questioned lawyers from both sides on Monday.

Specifically, the justices wanted to ensure that Florida's statewide vote tally is certified in time to allow sufficient time for the losing party to contest the outcome. Florida law allows a protest to be lodged before certification and a contest afterward.

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