Court lets count go on

Gore sees win for 'democracy'; Baker rips 'unjust decision'

By Susan Milligan, Globe Staff, 11/22/2000

ALLAHASSEE - The Florida Supreme Court last night allowed the recount of presidential ballots to continue, breathing life into Vice President Al Gore's struggle for the White House and delaying the drawn-out election of the nation's 43rd president at least until Sunday.

While Vice President Al Gore called the decision a victory for democracy and appealed for ''unity,'' the Bush camp harshly vowed to fight the ''unjust'' decision, perhaps even by bringing in the Republican-controlled Florida Legislature.

The court should not ''change the rules after it appears that one side has concluded that it's the only way to get the votes it needs,'' said former secretary of state James A. Baker III, who is representing Bush. He also said the campaign would examine ''whatever course we can'' to ''correct'' the decision.

In the court's unanimous, 42-page opinion, the seven justices said the manual vote recounts were permissible under Florida law. It was a substantial setback for George W. Bush, who currently holds the lead in votes and has called the hand recounts flawed and unconstitutional.

The court also rejected Secretary of State Katherine Harris's insistence that only those votes that were counted by a Nov. 14 deadline be counted, and instead gave counties until 5 p.m. Sunday or 9 a.m. Monday to finish their recounts.

''We consistently have adhered to the principle that the will of the people is the paramount consideration,'' the court said.

''Our goal remains the same as it was a quarter century ago ... to reach the result that reflects the will of the voters, whatever that might be,'' the decision said.

The ruling gave Gore the two critical things his lawyers asked for: to reject Harris's Nov. 14 deadline and to require her to take into account the hand recounts currently being conducted in three southern Florida counties.

The decision did not specifically say, however, that the counties' elections boards had to count ballots that are ''dimpled,'' meaning an indentation was made next to a candidate's name, or ballots which include an incompletely punched chad.

The Gore campaign has acknowledged that it cannot capture Florida's 25 electoral votes - and with it, the presidency - if these votes are not counted.

As of last night, Bush led by 930 votes in a tally certified by the Florida secretary of state, including overseas and absentee ballots. According to a survey by the Associated Press, Gore has picked up 266 votes in the ongoing recounts, which would trim the Texas governor's lead to 664, if they are permitted.

In yesterday's decision, the justices combined lofty statements about the fundamental American right to vote with practical directions on resolving the situation. The canva ssing boards must deliver their final vote tallies to Harris by Sunday afternoon. If the secretary of state's office is not open for work during that day, the counties may deliver their results by 9 a.m. the following day, the court said.

Quoting a 1975 decision, the justices said, '' The right to vote is the right to participate; it is also the right to speak, but more importantly, the right to be heard.''

In a statement in Washington late last night, Gore did not claim the ruling as a win for himself, but as a reinforcement of American democracy.

''I don't know what those ballots will show. I don't know whether Governor Bush or I will prevail,'' Gore said, with his running mate, Senator Joseph I. Lieberman of Connecticut, behind him. ''But we do know that our democracy is the winner tonight.''

Renewing a request for a meeting with Bush, Gore added, ''Together, let us testify to the truth that our country is more important than victory.'' When Gore first suggested a meeting last week, the Bush camp did not accept.

The vice president also denounced any effort to sway the votes of members of the Electoral College, and said he would not accept the vote of any elector pledged to Bush.

Baker, meanwhile, directly challenged the validity of the court's ruling, saying it paid merely ''great lip service to the principle that they are just interpreting the laws.''

''I think they've done more than interpret the law,'' he said. ''No one can deny that they changed the statutory scheme for the conduct of Florida's elections,'' usurping the power of the Florida Legislature, Baker said.

Privately, Bush aides took hope from the relatively tight deadline for reporting the hand-counted votes, but also noted that if dimpled ballots are counted, it could swing the outcome to Gore.

The late-breaking decision capped an anxiety-filled day, during which harried elections officials continued to recount votes, not knowing if the ballots would ultimately be considered legal.

A smattering of pro-Bush demonstrators picketed the front of the Supreme Court building, while a dozen or so curious locals huddled in the chill, awaiting the decision. The court's Web site attracted so much traffic from Internet users looking for updates that many could not gain access to it.

As late as yesterday afternoon - just hours before the justices handed down their opinion - both campaigns were still arguing their cases. The Bush camp, perhaps fearing the worst for its side, sent over a surprise brief contending that the Florida court did not have the right to determine the validity of ballots.

For two wrenching weeks, the Gore and Bush campaigns have been fighting over whether disputed ballots should be recounted and added to the candidates' totals.

As they awaited the court decision earlier in the day, county officials continued to hand-count votes. In Miami-Dade, canvassing officials followed the request of the Gore campaign and are counting the indented ballots. In Broward County, dimpled ballots and those with just one corner of the chad dislodged are being set aside in a separate pile, and may be counted later.

In Palm Beach County, officials are not considering ballots that are merely dimpled or attached at three of four corners. The vice president has picked up only a handful of votes in this heavily Democratic county.

Last night's decision did not direct any of the counties to amend their criteria for counting questionable ballots. It referred to an Illinois decision that backed the idea of counting ballots that have not been completely punched. But the Florida court - giving a glimmer of hope for the Bush campaign - made no specific order of its own to the election officials.

Gore attorney David Boies said he hoped Palm Beach County would ''adopt the standard'' of other jurisdictions and decide to count the dimpled ballots.

The Florida jurists did uphold the integrity of hand-counting ballots that already have been tabulated by machine.

The Bush camp has complained that the manual counting is less reliable, and gives individuals the opportunity to manipulate ballots in a manner that could corrupt the results.

But the court dismissed that suspicion. ''Although error cannot be completely eliminated in the tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines,'' the decision said.

''In almost all endeavors, including elections, humans routinely correct the errors of machines.''

The counties also need reasonable time to conduct the recounts, the court said. ''Logic dictates that the period of time required to complete a full manual recount may be substantial, particularly in a populous county, and may require several days,'' the decision said.

''The Florida Supreme Court is well aware of the real-world deadlines,'' said Mark Miller, a government professor at Clark University. ''Justices must not only determine the law, but they must also have a practical side. These real-world deadlines are part of the practical problem the justices must make legal sense of.''

Anne E. Kornblut of the Globe Staff contributed to this report from Austin, Texas.