Miami-Dade gives up recount

Jolt to Gore; Bush fights ruling by Fla. court

By Michael Kranish and Susan Milligan, Globe Staff, 11/23/2000

ALLAHASSEE - A day after the state Supreme Court gave Al Gore's hopes a boost, allowing counties five more days to recount ballots, Florida's largest county, Miami-Dade, stunned the vice president's campaign by abandoning its manual count because it may not be finished in time.

A state appeals court turned down a bid by Democrats to force the board and vote counters to continue with the hand recount in Miami-Dade, but Democrats said they would appeal to the state Supreme Court.

George W. Bush, meanwhile, appealed to the US Supreme Court to stop any recounts.

Bush, who failed in two efforts last week before federal courts to stop the recounts, filed an emergency request to the US Supreme Court yesterday, on grounds that the counting is being conducted in violation of the equal protection clause of the Constitution. He said that all votes are not being treated equally.

''Make no mistake, the [Florida] court rewrote the laws,'' Bush said at a press conference in Austin, shortly before his appeal to the US Supreme Court was announced. ''It changed the rules and it did so after the election was over.''

The Gore campaign disagreed, of course, and used a variety of legal tactics to keep the pressure on for the recount.

It was a whirlwind day of unexpected developments, beginning with the news that the Republican vice presidential nominee, Dick Cheney, had been hospitalized with chest pains that led to a ''very slight heart attack.'' Cheney's doctors, who performed a surgical procedure to clear a constricted artery, predicted a swift recovery.

In Florida, the initial focus was on the Miami-Dade County canvassing board, which was beginning its recount. In the course of several hours, the board went from starting a full recount to deciding to count only 10,000 ''undervotes'' where no ''chad'' was punched out for president, to abandoning its count altogether. The three members of the board agreed that they could not complete the tally before the deadline of 5 p.m. Sunday set by the Florida Supreme Court.

The Gore campaign, fearing that the loss of the Miami-Dade recount would greatly diminish the vice president's chances of winning the election, filed an emergency motion before a local circuit court to require the county to conduct the recount. That motion was denied late last night. Jenny Backus, a spokeswoman for the Democratic National Committee, said Democrats planned an appeal to the Florida Supreme Court.

The Bush legal camp, meanwhile, in asking the US Supreme Court late yesterday to enter the dispute, asked that oral arguments begin on Dec. 5. ''This is a case of the utmost national importance,'' the Bush filing said. ''The outcome of the election for the presidency of the United States may hang in the balance.''

Bush's lawyers asked the high court to determine ''whether the use of selective, arbitrary and standardless recounts that threaten to overturn the results of the election for president of the United States violates the equal protection clause, the due process clause and the First Amendment'' of the Constitution.

At the same time, the Bush campaign began laying the groundwork to try to overturn the election result in the state Legislature, or in the US Congress.

Under one scenario, Bush's brother, Jeb Bush, the Florida governor, could use his power to call a special session of the Republican-controlled Legislature, which some believe has the authority to appoint its own representatives to the Electoral College, which in turn picks a president.

Alternatively, the House speaker and the Senate majority leader, both Republicans, could jointly call a session.

George W. Bush, asked whether he wants the Legislature to take action, referred reporters to a statement by his chief representative in Florida, James A. Baker III, who has said that the Legislature may decide to act.

Separately, Bush called on Gore to agree publicly to include all military absentee ballots. His lawyers went to court in Florida to try to force the inclusion of the disputed votes in 13 counties that are home to many military personnel.

Republicans have accused Democrats of working to exclude the military ballots, which tend to favor Bush, if they are not postmarked or properly signed. Bush said it would be unfair to disenfranchise those in the armed services, who sometimes must rely on others to mail their ballots. Some Republicans say Bush might add another couple of hundred votes to his 930-vote lead over Gore if all military ballots are included.

Gore did not respond to Bush's challenge on the military ballots, but his running mate, Joseph Lieberman, had previously agreed that they should be counted.

Gore had counted on picking up several thousand votes in three heavily Democratic counties. But as of yesterday, Gore was well short of his goal. With Miami-Dade shutting down its count, the focus was on Broward and Palm Beach.

In Palm Beach County, where the Gore team hoped to force the inclusion of the ''dimpled'' ballots, those whose ''chads'' had been dented but not perforated.

Circuit Judge Jorge Labarga ruled late yesterday that county election officials must review all those ballots with the dimpled chads. That decision did not deviate much from a ruling Labarga made last week, and it did not require the county to include the dimpled ballots. Labarga only reiterated his view that the county could not categorically reject such ballots.

''The canvassing board cannot have in place a policy which provides for a per se exclusion of any ballot,'' he wrote. ''Each ballot must be considered in light of the totality of the circumstances.''

While Gore aides hailed Labarga's decision as a victory, asserting that it could add hundreds of votes to Gore's totals in Palm Beach County, the ruling still leaves the decision to the board's discretion.

The impact of the decision will be known only when the canvassing board, which has two Democratic members, considers as many as 2,000 ballots that had been set aside while Labarga considered the case brought by Gore supporters. Democrats say the board has denied Gore more than 300 votes so far from dimpled ballots.

In the morning, the three-member Dade County canvassing board decided on a manual recount of only 10,750 ''undervotes,'' ballots for which machines could not detect a preference. As the board moved workers and ballots to a smaller tabulation room, a group of Republican protesters pushed through tight security and shouted, ''Let us see the ballots.''

Later, a leading state Democratic official was accused by a Republican observer of stealing a ballot, which turned out to be a blank sample.

After consulting with a county lawyer in the afternoon, the board announced its decision to stop the hand count, arguing that it would be unable to process all the ballots before the Sunday deadline that the state Supreme Court imposed on Tuesday.

''Once we got upstairs and looked at all the dynamics involved, we decided to reevaluate,'' Lawrence King, one of the board members, said at a press conference. Without more time, King said, ''I do not believe we have the ability to conduct a full, accurate recount.''

A Gore spokesman, Doug Hattaway, called the day's series of events ''unbelievable,'' and said there should be enough additional votes for the vice president in Broward and Palm Beach to swing the election to Gore.

''I believe so,'' Hattaway said, when asked in an interview whether Gore could win without a recount in Miami-Dade County.

So far, however, the hand counts have not yielded many new votes for Gore. An Associated Press tally last night showed a net gain of 129 votes for Gore from the three counties.

With only four days to count crucial ballots, the two campaigns face a series of deadlines. The first is on Sunday at 5 p.m., when the secretary of state, Katherine Harris, must receive all the recounted votes. She is expected to certify the tally that night.

After the certification, the candidates have 10 days to contest the result. The state then has until Dec. 12 to select its representatives to the Electoral College, which meets on Dec. 18 to pick a president.

In Tallahassee, Republican legislators, who control both houses of the Florida State House, mulled the idea of a special session to take the matter of the Florida electors into its own hands.

House Speaker Tom Feeney, a Republican, laid out the statutory and legal argument, saying that federal law provides that if an election does not produce a slate of electors, ''the electors may be appointed on a subsequent day in such a manner as the Legislature of such state may direct.''

Florida has a ''moral duty'' to its voters ''to ensure that they are represented in the Electoral College,'' the Feeney memo said, and the Legislature has an obligation to provide for a ''contingency,'' should the general election process not produce electors on its own.

Feeney also raised the possibility of enacting a new law to appoint electors based on the certification or ''best estimate of votes'' by the secretary of state.

The Legislature could pass this law in a special session, and the electors chosen would be there as a backup in case other electors are not chosen in time, Feeney said. Such reasoning could favor the Republicans if the appeals process drags out past Dec. 12, when the representatives to the Electoral College are supposed to be named.

Democrats said they would fight any attempt to ram through a Republican electoral slate. ''Absolutely,'' said state Representative Irving L. Slosberg, a Democrat from Palm Beach County.

Partisan tempers were running high yesterday. Each side accused the other of using the courts and selective laws to get its way.

If the Legislature picks Bush electors, ''a Bush presidency would be even less legitimate than ever,'' said Doug Head, head of the Orange County Democratic party.

Republicans counter that if Gore ends up eking out a victory, he will viewed by many as having stolen the election. Worse, some Republicans said, Gore will have done it on the backs of some military personnel whose votes had been disqualified.

Milligan reported from Tallahassee; Kranish from Washington. Also contributing were Richard Chacon in Miami and David Abel in West Palm Beach, both of the Globe Staff. Wire service material was also included.