Florida recount is ordered

Gore bid gets new life, Bush files an appeal

By Michael Kranish, Globe Staff, 12/9/2000

ALLAHASSEE - A divided Florida Supreme Court yesterday gave a last-minute reprieve to Al Gore's presidential hopes, shrinking George W. Bush's state margin to just 154 votes and ordering a statewide manual recount of disputed ballots that could decide the election.

Bush, who had hoped for a verdict sealing his victory, instead rushed to file an appeal to the US Supreme Court. The Texas governor also made an emergency request to Justice Anthony Kennedy, whose jurisdiction includes Florida, to temporarily set aside the ruling, using a legal maneuver normally reserved for death penalty cases.

A stay, Bush's lawyers told Kennedy, ''is the only means of protecting the integrity of the federal electoral process while ensuring proper and orderly access to the judicial system.'' Gore lawyers are expected to file a response today.

Bush also made a similar request to halt the recounts to the federal appeals court in Atlanta, which may hear the matter today.

In a split that mirrored the closeness of the presidential election, the Florida court voted 4-3 to overturn a circuit judge's refusal to order a recount. ''This election should be determined by a careful examination of the votes of Florida's citizens and not by strategies extraneous to the voting process,'' the majority opinion said.

But in an unusually tough dissenting opinion, Chief Justice Charles T. Wells gave Bush ammunition to take the case to the US Supreme Court, calling the decision unfounded in law and one that could lead to a ''constitutional crisis'' that ''will do substantial damage to our country, our state, and to this Court as an institution.''

The Republican-dominated Legislature, meanwhile, prepared to select presidential electors committed to Bush, potentially setting the stage for two competing slates to be sent to Congress and possibly dragging out the election decision to next month.

The court's decision set off celebrations in the Gore camp and left a stunned Bush campaign scrambling for legal options.

''This decision is not just a victory for Al Gore and his millions of supporters, it is a victory for fairness and accountability and our democracy itself,'' Gore's campaign chairman, William Daley, said outside the courthouse. ''Let the count begin. ... Then Florida and America will know with certainty who has really won the presidency.''

But Bush's chief advocate, James A. Baker III, announcing Bush's appeal to the US Supreme Court, called the Florida decision ''very sad. It is sad for Florida, it is sad for the nation, and it is sad for democracy.''

Baker called the unprecedented legal snarl the natural end result of Gore's original decision to mount a court challenge to the Florida result.

The state Supreme Court, in its majority decision, took two key actions, adding votes to Gore's total and ordering a limited statewide recount.

The court added 383 votes that had already been recounted but were not part of the certified state total, including 215 in Palm Beach County and 168 in Miami-Dade County. The court rejected Gore's effort to add another 51 votes from Nassau County. That left Gore 155 votes short of winning the state - and the presidency.

But the court, citing the paramount need to allow legal votes to count, gave Gore plenty of opportunity to find the necessary votes from ballots where machines detected no presidential vote. Those ballots, called ''undervotes,'' have been found in some counties to contain votes for president that were not detected by machines because the ''chads'' were not fully punched away. The Gore campaign, for example, has estimated that one-fourth of the 9,000 undervotes in Miami-Dade would show a vote for the vice president if counted by hand.

The court ordered the trial judge, Leon County Circuit Judge N. Sanders Sauls, to oversee the recount of disputed ballots from Miami-Dade and Palm Beach counties. In a surprise development, Sauls last night recused himself from the case and it was reassigned to another judge, Terry Lewis. Sauls did not explain his recusal, but he has a history of conflict with the high court, which in 1998 stripped him of his title as chief judge amid charges that he was autocratic.

The court, in ordering the recount, focused only on the undervotes. But it went further than Gore had requested, saying every county that has not already counted the undervotes must do so. While no definitive number of undervotes was immediately available, it appeared that meant 40,000 or more ''undervote'' ballots could be examined across the state. The court ordered the count to begin immediately, with a goal of finishing by the Dec. 12 deadline by which Florida must select presidential electors. Officials in some counties were quick to suggest it would be very hard to finish on time.

Many legal analysts had expected the court to side with Bush and were shocked by the announcement. ''Totally shocked, never expected it,'' said Robert Jarvis of Nova Southeastern Law Center in Fort Lauderdale. Jarvis was particularly surprised that the court, which usually likes unanimous opinions in such high-profile cases, was so deeply divided.

''The dissent by Chief Justice Wells is just unprecedented in the way he attacks the majority,'' Jarvis said, adding that there is ''plenty of room'' for Bush to appeal to the US Supreme Court.

The court was vague about how recounts would be conducted and, once again, left it unclear what constituted a valid vote. The court said that canvassing boards should discern the ''intent'' of the voter but did not say whether a hanging or dimpled or pregnant chad indicated an intent. The result means that each county might apply its own standard.

Some counties that did not use punchcard ballots may be unaffected by the ruling - counties with optical scanning voting machines had comparatively few undervotes. In addition, ballots that registered two votes for presidential candidates - known as ''overvotes'' - would not be counted. With no advance indication of a statewide recount of undervotes, some counties were prepared to begin immediately, as the court ordered. Across the state, local elections officials scrambled to assemble ballots, with some counties hoping to begin a count today.

The court's decision to limit the recount to undervotes statewide was significant because it is possible that many counties will be able to accomplish that by Dec. 12. By comparison, it would have been difficult, if not impossible, for a full manual statewide recount to be concluded so quickly.

In arguments before the Supreme Court on Thursday, Bush attorney Barry Richard had argued that no recount was warranted. Gore attorney David Boies said that there was no requirement that a full recount be conducted, suggesting that only undervotes be retabulated.

The announcement at the Florida Supreme Court came several hours after Bush scored two victories in separate trials conducted this week at the Leon County Circuit Court. In those cases, Democratic voters in Seminole and Martin counties had alleged that Republican workers improperly added voter identification numbers to absentee ballot applications. The plaintiffs asked the judges in the two cases to throw out more than 25,000 absentee ballots, which would have taken away more than enough votes to give Gore a victory in the state. But Judge Lewis, who oversaw the Martin County case, and Judge Nikki Ann Clark, who oversaw the Seminole matter, ruled against the Democrats. That left Gore's fate in the hands of the Supreme Court.

At 4 p.m., with dozens of reporters and hundreds of spectators anxiously awaiting an announcement, court spokesman Craig Waters emerged from the silver doors of the Supreme Court and announced the decision. Gore supporters cheered, and Bush backers stood in stunned silence as the summary was read.

The Florida Supreme Court is composed of six Democrats and one Independent. All of the justices were appointed by Democratic governors, although one of them, Peggy Quince, was jointly appointed by Bush's brother, Governor Jeb Bush.

Yesterday, Quince sided with the majority, effectively denying George W. Bush the presidency - at least for now.

In the decision, the four justices said that Sauls had erred when he ruled Monday that there was no probability that a recount would change the election outcome. The four justices are Barbara Pariente, Fred Lewis, Harry Lee Anstead, and Quince.

But three justices dissented: Wells, Leander J. Shaw Jr., and Major B. Harding.

The court's decision hinged partly on Boies's argument that Sauls, the trial court judge, had failed to examine the ballots. Sauls had said it was unnecessary to look at the ballots because there was no credible evidence that such an examination would change the outcome of the election.

But the court said that when an election contest is filed, the trial court must ensure that ''each allegation in the complaint is investigated, examined or checked, to prevent any alleged wrong, and to provide any relief appropriate under such circumstances.''

The court said that its guiding principle was that the ''will of the voters'' determine the outcome. As a result, the majority of the court said every citizen's vote must ''be counted whenever possible, whether in an election for a local commissioner or an election for President of the United States.''

Further, the court criticized Sauls's refusal to order a recount even though he found that ''the record shows voter error and/or less than total accuracy.'' Sauls said that despite those problems, there was no ''reasonable probability that the statewide election result would be different.''

The court said Sauls's statement ''is incorrect as a matter of law.'' The court said that there is a ''mandatory obligation to recount all of the ballots in the county.''

The dissenters, however, castigated the majority for going too far in interpreting the legislative statute regarding recounts.

Wells, the lead dissenter, was clearly mindful of a statement on Monday from the US Supreme Court that expressed concern that the Florida Supreme Court may have exceeded its authority in extending the Legislature's recount deadline from Nov. 14 to Nov. 26. The US Supreme Court asked the Florida court to explain whether it was interpreting the Legislature's statute or rewriting it.

''I could not more strongly disagree with'' the majority's decision ''to reverse the trial court and prolong this judicial process,'' Wells wrote. Then, clearly referring to a probable appeal to the US Supreme Court, Wells continued: ''I also believe that the majority's decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.''

Wells noted the majority is returning the recount to the circuit court without setting any standards for ascertaining the voter's intent. Moreover, Wells said, the court is unjustly usurping power that is given to the Legislature.

Meanwhile, the Legislature, dominated by Republicans, prepared to pick its own electors committed to Bush. Republican leaders, fearing precisely such a decision from the state Supreme Court, set in motion a process that would conclude Wednesday with the selection of 25 electors committed to Bush.

The Republican leaders have said they are not trying to throw political support to Bush, but instead are trying to ensure that the state does not wind up with electors whose legitimacy would be in doubt. But the Republican legislators made clear they believe Bush should remain the certified winner. If Florida's electors are not recognized by Congress as legitimate, it is possible that Gore would be declared the winner, although constitutional scholars differ about the issue. With court challenges already filed, it is possible the matter may remain unclear after Dec. 12, which legislators said would add to the rationale for picking electors.

As the Legislature opened its session yesterday, it adopted a proclamation expressing its concern that the state will fail to finalize its slate of electors. Democrats charged that the move was overtly political but did not have the votes to stop it.