Drama plays out in court an count

By David Abel and Raja Mishra, Globe Staff, 11/15/2000

EST PALM BEACH, Fla. - With the 5 p.m. election certification deadline looming like an offshore hurricane, teams of lawyers jabbering instructions on cell phones and huddling over the latest motions, a bemused Judge Jorge Labarga took the bench to hear a case that could decide who becomes the next president.

Five judges had already recused themselves from the case, which involves the validity of the so-called butterfly ballots as well as a decision about whether Palm Beach County could proceed with a hand count of its 460,000 ballots.

Only a few minutes before stepping into courtroom 4D, Labarga had returned from lunch to find a bailiff waiting in front of his office. The chief judge of the Palm Beach County Courthouse had sent the bailiff to inform Labarga of his new case.

''I'm very surprised to be here,'' said Labarga, as he asked dozens of lawyers and scores of reporters and residents to be seated.

With Florida's 25 electoral votes up for grabs and the two presidential candidates separated by a slim margin, a manual recount of all the ballots in Palm Beach County could possibly uncover enough votes to shift the statewide balance from Texas Governor George W. Bush to Vice President Al Gore.

The five other judges had stepped aside because of possible conflicts or accusations of bias. But Labarga was prepared to act. He issued a prompt ruling: County election officials could resume their hand count.

Labarga, a former public defender, also dissolved a temporary injunction blocking Palm Beach County's elections-canvassing board from sending preliminary results of the presidential contest to the secretary of state.

''This is definitely a victory,'' said Gary Farmer, Jr., an attorney representing two of the residents who believe the county's now-notorious butterfly ballot infringed on their voting rights. ''This is the first court order in the state that officially sanctions a recount by hand.''

Less than an hour after Labarga's decision, the three elected officials of Palm Beach County's election board met in front of a raucous crowd of hundreds of residents and reporters, and unanimously voted to continue the hand count this morning. They did so in a defiant mood, with one board member, County Commissioner Carol Roberts, declaring ''I'm willing to go to jail'' to have all the ballots counted.

The post-election purgatory of the on-and-off ballot count has wrought chaos in the courts and on the streets in this normally serene seaside city. Democrats and Republicans continued to exchange insults in front of television cameras and lawyers filed even more lawsuits.

One suit filed here Monday called for county officials to include ''dimpled chads'' in the hand count. Chads, the little pieces of paper that are punched out from the holes on a ballot, are considered ''dimpled'' when a voter indents, but does not detach, the chad. Another suit filed in Broward County yesterday called on a judge to reverse a decision by that county's canvassing board to forgo a full hand count even though a sample count showed Gore could pick up as many as 400 votes.

At the Palm Beach County Courthouse, five teams of lawyers represented Gore, Bush, Palm Beach County, local residents, and the secretary of state. Several voters interrupted the proceedings to request that the judge hear their complaints. And the judge at one point admitted to being bewildered by the details.

''I don't know if you're prepared for this,'' he told a lawyer for the Bush campaign listening over a speaker phone while waiting for another lawsuit to start in Tallahassee. ''But neither am I.''

Despite the surreal atmosphere and the inflamed passions, some enjoyed their roles in a once-in-a-lifetime show. Donald Russell has been a sheriff's deputy for 22 years and has served as a bailiff for the past several years in the sprawling post-modern courthouse. In all his time on the force, this is the most exciting.

''How often do you get to witness the presidency of the United States being decided in court?'' he asked. ''This is something very big.''

Meanwhile, in Miami, the hand counting of ballots continued. Earlier in the day, the two men and 14 women who earn minimum wage for counting votes here had no idea what they were up against.

As the counters gathered in a downtown Miami government office tower yesterday afternoon, lawyers and political operatives from the Bush and Gore campaigns openly plotted to influence their work.

''When a vote's in doubt, contest it for Gore,'' said an out-of-town Gore operative to his team of vote-counting monitors as they huddled outside the vote-counting room. ''But when you see one that's contestable but looks like it could be for Bush, keep your lips sealed.''

On the other side of the lobby a Bush lawyer told his troops: ''Try to convince them that anything that [is improperly punched] is a voter error and shouldn't be counted.''

And so it went.

Indeed, the hand count in Miami-Dade County - one of four Florida counties in which Gore has requested a manual recount - appeared to be a nakedly political process from start to finish.

The scene: Four vote counters sitting at four tables each surrounded by two partisan monitors, one Republican and one Democrat. Before them were four thick stacks of white punch-card ballots. One vote counter would hold a card up and the other would determine which candidate got that vote. Then they showed each card to the partisan monitors.

Within the first minute of vote counting, half the ballots were contested by these partisan monitors. This continued throughout the laborious process, which dragged into yesterday evening. Contested ballots were sent up to the three-member Miami-Dade County canvassing board, whose members would haggle over them, their voices amplified throughout the small room.

''For voter number 103BB ... there is some indentation for candidate six but not enough, so it is not a vote,'' said the director of elections, David C. Leahy, in a typical exchange.

''I concur,'' added Judge Myriam Lehr, another canvassing board member.

''I disagree. It is a vote for candidate 6,'' replied the third member, Judge Laurence D. King, who lost the exchange because the majority ruled on disputed votes. (On these ballots, the candidate assigned to chad number 6 is Gore).

The vote counters have been on stand-by all week, their lives disrupted as never before by this close presidential race. And their work yesterday could be for nought. They were only counting three Miami-Dade precincts to see whether there were any differences from the machine vote counts, which gave almost 90 percent of the votes from these precincts to Gore.

Late last night, the board voted 2-1 against having a full hand count, declaring the results submitted to the secretary of state final.

Able reported from West Palm Beach, Mishra from Miami.