The Florida Supreme Court refused Friday to grant Vice President Al Gore’s request to order an immediate recount of contested ballots, and it rejected a suit from Palm Beach County seeking a new election there based on confusion over the so-called butterfly ballot.
But lawyers for the Democratic presidential candidate shrugged off the double-barreled setback as they prepared for a critical trial.
The presidential standoff, which has stretched more than three weeks beyond Election Day, moves into a Tallahassee courtroom Saturday.
Gore’s lawyers will urge Leon County Circuit Court Judge N. Sanders Sauls to start counting about 13,000 disputed ballots from two South Florida counties in the belief that the ballots hold enough votes to overcome the lead held by Texas Gov. George W. Bush.
“The witnesses to our case are, very simply, the ballots from the people of the state of Florida,” E.C. Deeno Kitchen, a lawyer for Gore, told a judge Friday.
More than 1 million ballots that had been trucked across Florida were locked inside fireproof vaults in the Leon County Courthouse, waiting to be opened if the judge so orders.
Arguing that the time for counting votes has long passed, lawyers for Bush will cite legal precedent when it asks Sauls to dismiss the case.
“Never before in the history of the Republic has the losing side contested the results of a presidential election,” the Bush team wrote in a brief.
Bush was certified the winner of Florida by 537 votes last Sunday by Secretary of State Katherine Harris. Gore swiftly filed legal papers challenging her edict, and the case was assigned to Sauls.
As lawyers for Bush and Gore battled Friday in courtrooms from Tallahassee to Atlanta to Washington, the GOP-controlled Florida Legislature remained ready to jump into the fray if the courts don’t rule in Bush’s favor. Lawmakers said they will decide next week whether to hold a special session to assign the state’s pivotal 25 representatives to the Electoral College.
The number of lawsuits over the election grew yet again Friday.
But the state Supreme Court turned down a plea from voters who contested the design of Palm Beach County’s butterfly ballot.
“Courts have generally declined to void an election” unless defects in the ballot “clearly operate to prevent a free, fair and open choice,” the court ruled in an opinion court spokesman Craig Waters summarized from the courthouse steps.
Still, lawyers for Gore and Bush remained focused on the case playing out in Sauls’ courtroom. The folksy jurist took a stronger hold on the case Friday, warning lawyers that he would stand for no dallying.
“Let’s slim it down,” Sauls told the attorneys. “Let’s get all the fluff off.”
Gore’s lawyers, who were so concerned about delays in the judge’s courtroom that they asked the state Supreme Court to intervene, were relieved by the new pace.
Although the Supreme Court dismissed the Gore request for an immediate recount without explanation late Friday, Gore’s team was buoyed by Sauls’ interest in moving matters along.
Lawyers for the Gore campaign said they will call only two witnesses, a Yale University statistician and a vote-machine expert, to try to convince the judge he should personally inspect about 13,000 ballots from Miami-Dade and Palm Beach Counties that did not record a presidential vote.
Sauls said each side can call only one expert witness.
The Gore team contends that many of those people intended to vote for a presidential candidate but that the punch-card ballots couldn’t be read by voting machines.
The Bush campaign will argue the voting machines worked properly, pointing to other counties across the state that had similar “under votes,” where people did not pick a presidential candidate. Bush lawyers also maintain that Florida law does not provide for recounts after an election has been certified.
The judge also ordered the impounding of an additional 1.2 million ballots in Volusia, Broward and Pinellas Counties. The Bush campaign had asked that they be brought to Tallahassee, but it agreed that impounding the ballots would suffice. Bush spokesman Scott McClellan said, “We believe there were a number of illegal votes for Gore in those counties.”
It was unclear whether Republicans had filed a complaint Friday against Broward’s canvassing board. Bush lawyers had said they would contest Broward recount results they believe were favorable to Gore, partly because of mistaken claims that a landmark Illinois case counted dimpled ballots.
With legal action ongoing before the U.S. Supreme Court and in Tallahassee, state lawmakers paused Friday, making no final decision on whether to hold a special session to assign Florida’s electors themselves.
State Senate President John McKay, who has the authority, along with the speaker of the Florida House, on whether to call a session, said he isn’t likely to decide before Monday. McKay, a Republican, said he will spend the weekend reading a report from a legislative committee that on Thursday recommended calling a session.
McKay pointed to the changing legal and political geography as another reason to move slowly.
“I think this is sort of like a Rubik’s cube,” McKay said. “Everything is unfolding.” Developments in the cases in several courthouses in the next few days could offer the Legislature a way to avoid the politically risky move of calling a session.
Still, Republican and Democratic lawmakers alike consider a session likely. Earlier in the week, legal experts handpicked by the GOP-dominated Legislature told lawmakers they have a constitutional responsibility to immediately meet to select the state’s presidential electors themselves to avoid the possibility that Florida’s 25 electoral votes might not be counted.
But Friday, McKay, an ally of Florida Gov. Jeb Bush, the Texas governor’s younger brother, said he didn’t want to move fast. “We will proceed in a methodical, deliberate manner,” he said. “I’m doing this reluctantly.”
If the Legislature were to pick its own set of electors–almost certainly pledged to vote for George W. Bush–it would do so with a resolution, not a law, McKay said. Under legislative rules, Jeb Bush signs some new laws, but he has no role in resolutions. The resolution option, then, might be more politically appealing to the Bush brothers.
McKay said lawyers for the Legislature advised him that a resolution was more appropriate because the decision about electors “falls squarely” with the legislators, not the governor.
Despite possible political fallout from stepping into a process usually left to the voters, McKay said he won’t weigh that as he makes a choice. “I think you do what’s right,” he said.
