TIME EUROPE
December 18, 2000, Vol. 156 No. 25
Running Out of Time
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His last hope rested with the Florida Supreme Court. The seven justices on that bench had all been appointed by Democratic governors, but would they dare to overturn a strong ruling earlier in the week by Circuit Judge N. Sanders Sauls, who had flatly rejected Gore's plea for recounts in Palm Beach and Miami-Dade counties? During oral arguments before the Florida Supreme Court on Thursday, the justices had grilled Gore lead attorney Boies harder than Bush's Richard.
So even the Gore side was stunned late Friday afternoon when Florida Supreme Court spokesman Craig Waters stepped between the tall pillars at the top of the courthouse steps to announce the decision. The court ordered an immediate manual recount of all Florida's "undervotes" — ballots that didn't register a preference for president in the variety of machines the state's counties use to tabulate votes. Gore was convinced that the piles of undervotes — about 9,000 in Miami-Dade County alone — contained thousands of votes that could not be read by machines but would be discernible to the human eye. "Because time is of the essence," Waters read from a court statement, "the recount shall commence immediately." Staring at the court was a Dec. 12 deadline for the appointing of state electors to cast the only votes that count in the U.S. presidential election.
The Gore forces felt as if they had come back from the dead. "This is great," the Vice President reportedly told an aide. But not wanting to appear to be celebrating prematurely, he dispatched campaign manager William Daley to praise the day's surprise ending. "Today's ruling by Florida's Supreme Court is an important victory for what has been Al Gore and [running mate] Joe Lieberman's basic principle: a full and fair count of all the votes," said Daley. "This decision is not just a victory for Al Gore and his millions of supporters. It is a victory of fairness and accountability in our democracy itself." Bush spokesman Baker had a furious reply. "This is what happens," he said, "when for the first time in modern history, a candidate resorts to lawsuits to try to overturn the outcome of an election for president. It is very sad. It is sad for Florida, it is sad for the nation, and it is sad for our democracy."
As welcome as it was to Gore's team, the decision had two major downsides from the Vice President's perspective. First, the ruling called for much more counting than Gore attorneys had requested. Boies, who represented the U.S. Government in its successful antitrust suit against Microsoft, had asked for recounts only in Miami-Dade and Palm Beach counties, Democratic strongholds that could possibly yield thousands of votes for Gore. But the Florida Supreme Court ordered a count of all undervotes in each of the 67 Florida counties that had not already conducted such a tally. There are an estimated 45,000 undervotes statewide, many in heavily Republican counties as well as in Democratic bastions. No one could know which candidate would pick up more votes in a statewide recount.
The more serious problem with the Florida Supreme Court ruling, from the Gore standpoint, was that it came on a bitterly divided 4 to 3 vote. Two of the dissenters agreed that Judge Sauls had made some legal errors, but they argued that the remedy ordered by the majority was also flawed, maintaining that a full, fair recount of all the undervotes would be impossible before the Dec. 12 deadline. A partial recount, they added, would not only fail to pass muster under Florida law but would be "a useless act."
Even more scathing was the dissent offered by Chief Justice Charles Wells, who wrote that Judge Sauls' decision should not have been overturned and that the new recount "has no foundation in the law of Florida." The Chief Justice's opinion contained an unusually blunt warning: "I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state and to this court as an institution."
The crucial question was whether this split decision would withstand the scrutiny of the U.S. Supreme Court. Earlier in the week the U.S. high court had set aside a previous Florida Supreme Court election ruling on the ground that it was not clearly based on laws passed by the Florida legislature. The U.S. Constitution gives state legislatures the ultimate power to determine how elections are conducted. So the Justices in Washington unanimously asked the justices in Tallahassee to at least reframe their opinion for further review. In the new opinion, the Florida Supreme Court majority was very careful to cite passages in Florida statutes that, according to the justices, allow the recount of undervotes. MORE>>
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