Lawmakers in Florida move to pick elector slate

By Michael Kranish, Globe Staff, 12/7/2000

ALLAHASSEE - Florida's Republican legislative leaders, saying that they are trying to ensure that Florida voters are not disenfranchised, yesterday announced they will convene a special session to begin picking a slate of electors who would back George W. Bush.

The action came as the state's Supreme Court is set to hear Al Gore's appeal today of a local judge's refusal to order a manual recount that the vice president believes would give him the presidency.

''We're protecting Florida's 25 electoral votes and its 6 million voters,'' said state Senate president John McKay, who had been reluctant to take this historic step for fear it would be viewed as partisan.

But McKay said he had become concerned that, without legislative action, Florida might wind up with a tainted or disputed slate of electoral votes that would not be counted. That could give the presidency to Gore, whose challenge to the Florida election will be heard by the state Supreme Court this morning.

Lawyers for Bush and Gore will have 30 minutes each to make their case to the court, whose justices are mostly Democrats and whose next ruling in the matter could well decide the presidency.

Within minutes of McKay's announcement, House Democratic leader Lois Frankel, while conceding that Republicans had the votes to do whatever they pleased, blasted the GOP leadership for taking an ''unlawful'' step. The session would begin tomorrow and last at least through Wednesday, the day after the statutory deadline for certifying electors.

''This is a very sad day for the state of Florida,'' Frankel said. ''We just witnessed the ultimate partisan act.'' Noting that the state's governor, Jeb Bush, is the brother of Texas governor George W. Bush, she said the act had a ''postmark from Austin, Texas.''

Gore spokeswoman Jenny Backus called the Legislature's move ''questionable and very disappointing.''

Bush's campaign defended the special session.

''The Florida Legislature made this decision on its own. It's a separately elected body. We have not participated in their making their decision,'' said spokesman Dan Bartlett.

The dramatic announcement of the special session came on a day when two trials were underway in Leon County Circuit Court that could help Gore. In the cases, Democratic voters in Seminole and Martin counties alleged that election workers allowed Republicans to provide information on absentee ballot applications, which Democrats say should now be thrown out.

In the Seminole County case, brought by Democratic activist Harry Jacobs, lawyers for the plaintiff said that Republican officials improperly were allowed to write identification numbers on 2,130 absentee ballot applications. As a result, Democrats want all of the county's 15,000 absentee ballots, which favored Bush by a 2 -to-1ratio, to be thrown out. If that happened, Bush would lose enough votes to give Florida to Gore.

Meanwhile, the US Court of Appeals in Atlanta dealt a glancing blow to Bush, upholding a lower court's refusal to block manual recounts. The appeals court said, in effect, that the Bush arguments were academic - the recounts not having denied Bush a victory in Florida.

With so many legal battles brewing, and only five days before a crucial Dec. 12 deadline, the focus today is on the Florida Supreme Court, whose next ruling in on the election controversy could determine the presidency.

In a televised hearing slated to begin at 10 a.m. today, the Florida Supreme Court will hear Gore's appeal of the Monday decision by Leon County Circuit Judge N. Sanders Sauls, who rejected Gore's plea to manually recount more than 13,000 ballots, which could produce more than enough votes to overcome Bush's 537-vote margin.

Florida's Republican legislative leaders have been angry at the Florida Supreme Court for years, viewing the high court as a usurper of legislative prerogatives. That anger was heightened last month, when the court ruled that the L egislature's Nov. 14 deadline for completing recounts was unfair and extended it to Nov. 26. Today, the Supreme Court is once again being asked by Gore for more time to recount ballots. Given the court's past ruling, Republican leaders here became concerned that the court would allow a recount while not allowing enough time for the L egislature to call a special session to pick electors.

Looming is the Dec. 12 deadline by which the state must choose representatives to the Electoral College. Under the Republican plan, legislators would be called to Tallahassee tomorrow for the special session, beginning a process of picking electors that would be finalized early next week. The Republican leaders said they would not go through with their plan if Gore conceded or it was clear from the courts that the certification of Bush as the winner in Florida by a 537-vote margin would stand.

While the Bush camp won a decisive victory in Sauls's courtroom on Monday, the Republicans are concerned about an array of decisions that could turn against them at the last moment.

In the Seminole case, which began yesterday at the Leon County Circuit Courthouse, Democrats argued that all of the absentee ballots be thrown out because of the alleged tampering with the applications.

Gore says he is not a party to the Seminole and Martin cases because they run counter to his argument that every ballot should be counted. Still, the vice president is a most interested observer. Asked about the matter on Tuesday, Gore told reporters: ''The Democrats were denied an opportunity to come in, denied a chance to even look at the applications and those applications were thrown out.''

Bush lawyer Daryl Bristow yesterday rejected the claim, saying workers were merely fixing a computer error. ''This case is being brought for one reason, to change the outcome of the election, to change the will of the people in Seminole County,'' Bristow said.

Bush's lawyers were also concerned that the judge in the Seminole County case, Leon County Circuit Judge Nikki Clark, would be biased against them. Clark was passed over last month by Bush's brother, Governor Jeb Bush, for a promotion to a higher court. Clark earlier rejected a motion from lawyers for the Republican presidential nominee to remove herself from the case, and yesterday she turned down a request for a jury trial.

During yesterday's testimony, Seminole County supervisor of elections Sandra Goard acknowledged that she allowed a Republican Party worker to come into her office and fill in missing voter identification numbers, something she had never allowed before the 2000 election. Previously, she said in a deposition that was read aloud by an attorney, ''I had never received a request for that to be done.''

In the same courthouse, meanwhile, some of the same lawyers argued the Martin County case, in which Republican workers were allowed to remove ballots to insert voter identification numbers. The Martin case was heard by Leon County Circuit Judge Terry Lewis. The extraordinary time constraints of the cases forced the Bush lawyers to run from one courtroom to another, carting evidence with them, even as they prepared for today's arguments before the Florida Supreme Court.

Yesterday, both the Bush and Gore legal teams filed briefs before the state's high court outlining the argument to be presented orally today. In his Monday ruling, Sauls concluded that there was no credible evidence that a manual recount would alter the outcome of the election. Although Sauls said that the machines may not have been accurate, he said that Miami-Dade and Palm Beach counties knew about the problems for years and chose not to fix them.

Gore's lawyers, contending that Sauls improperly applied the law, said that ''the undisputed evidence shows that experts from both sides concluded that a manual review of contested ballots was necessary to ascertain the voters' intent.''

''If this state's contest provision is to have any meaning, the meaning must be this: it is a mechanism for determining if state authorities certified the wrong candidate as the winner of the election,'' Gore's lawyers wrote in their 50-page brief.

Gore wants a manual count of about 13,000 ballots from Miami-Dade and Palm Beach counties, not the more time-consuming count of roughly 1 million votes from those areas that Bush would prefer.

Bush's lawyers asked the high court to uphold Sauls' ''well-reasoned'' ruling, saying that ''any further review of the Circuit Court's opinion would ultimately lead to massive uncertainty and discord. The statutory time for certifying county returns passed over three weeks ago, when all 67 Florida counties certified their results. The time provided by this Court for certifying statewide election results passed one and a half weeks ago, on Nov. 26. And now, the time when Florida's electors would lose conclusive status in Congress is a mere six days away.''

The Bush brief said a fair recount at this point is ''all but entirely unfeasible.'' Then, the Bush brief said, ''no doubt the litigation would continue, key federal questions would be unresolved and subject to appeal, and the public's distrust in the ultimate outcome would grow.''

In yet another separate court matter, Gore won a legal skirmish in Atlanta, where the 11th Circuit Court of Appeals rejected Bush's motion to disallow hand recounts. The case was initially filed in an effort to prevent a hand recount. A lower federal court rejected the request, clearing the way for the recount to go forward, and the appeals court yesterday affirmed that decision.

The appeals court noted that Bush did not suffer any irreparable harm from the recounts. ''Even if manual recounts were to resume pursuant to a state court order, it is wholly speculative as to whether the results of those recounts may eventually place Vice President Gore ahead.''

But four dissenting judges on the 12-member panel disagreed and criticized the Florida Supreme Court for extending the deadline to certify the votes.