Under sunshine law, victor will emerge

By Lynda Gorov, Globe Staff, 12/5/2000

ALLAHASSEE - Maybe Al Gore will never get the chance to recount the ballots he insists would hand him the election, but someone, somewhere, will.

Under Florida's liberal open government laws, anyone with the wherewithal to make the request can examine the ballots - just the ones from the disputed counties or all 6 million of those cast in the Nov. 7 election. It would be time-consuming and expensive, but it could be done.

That means George W. Bush could be running the White House and learn he actually lost the election, or that Gore could be sitting in the Oval Office and discover he was wrong about being the victor. But who won Florida's popular vote won't matter by then. The state's 25 electoral votes will have already been cast, and those can't be taken back.

''There's a real possibility that someone will ask to look at all 6 million ballots given the nature of Florida election law, the animosity this presidential election has generated, the level of partisanship and the public's real desire to know,'' said Barbara Petersen, executive director of the First Amendment Foundation, a Tallahassee-based watchdog group.

''It's not going to change this presidency,'' she added, ''but I hope it will change the way elections are conducted in the future. On this one, it's important for people to learn for themselves what happened.''

That's easier to do in Florida than in almost any other state. Access to Governor Jeb Bush's e-mails, for instance, is also guaranteed. So is a log of any Florida mayor's incoming and outgoing telephone calls. More than two members of the same public board or commission can't even get together to talk about government business without first inviting the media or public to attend. The Florida Supreme Court doesn't just televise hearings of international interest, it televises lots of them.

The public approved the openness in 1992, when it voted overwhelmingly to amend the state Constitution to make all meetings and documents public. Although the Legislature can grant specific exemptions, the Florida Government-in-the-Sunshine Law provides penalties when access is otherwise refused. The public can even attend the governor's Cabinet meetings.

To get a peek at the ballots, all someone would have to do is put his or her request in writing, submit it to the appropriate state agency and agree to pay the costs of hiring the necessary staff and security. Permission is supposed to be granted promptly, although ballot access could get backed up if too many applications come in.

''If some public interest group doesn't do it, some professor is going to do it or some news outlet,'' said Jim Rossi, a law professor at Florida State University in Tallahassee who is a visiting professor at the University of Texas in Austin. ''It's an interesting question, to apply a consistent counting standard and learn what the results would be.''

No one - not the state, not Bush, not Gore - could prevent the ballots from being examined, said Joseph Little, a law professor at the University of Florida in Gainesville. A conservative group called Judicial Watch has already looked at some in Palm Beach County, an examination that was halted when a Tallahassee judge ordered all of the disputed ballots impounded.

But even a complete count of every ballot cast would not settle the most contentious election in modern times, Little added. ''There's never going to be a resolution acceptable to everyone unless the undercounted ballots show a preponderence of evidence that the election was won by the other person.''

Still, Deanie Lowe, supervisor of elections in Volusia County, which had its own recount issues with its 184,000 ballots, said the public inspection allowed under law is not a formal recount. But someone could get a close enough look to ascertain whether the ballot had a chad attached or light was visible from the other side. Ballots are kept in storage for two years before being discarded.

''Judicial Watch had asked to inspect them during the time we were doing our recount so we couldn't give them access,'' Lowe said. ''Since then, we've contacted them and said, `OK, when do you want to do this?'''

The county needs warning, she said, because under law it has to notify the other candidates on the ballot, work up the cost to the county, possibly hire temporary workers to assist and make sure security is on hand to guarantee the integrity of the ballots. For now, no one has access until Leon County Circuit Judge N. Sanders Sauls, who ruled against a hand recount yesterday, gives the go-ahead.

So even after the election is declared officially over and a president is seated, the counting could go on and on.