As the fight for the White House works its way up the judicial food chain, resolution remains elusive, and Wednesday is set to be another whirlwind day. The Florida Supreme Court could force counties currently considering or conducting hand counts to stop.
And if the state high court doesn't, a federal appeals court could. Late Tuesday, the Bush campaign appealed its Monday loss in federal court to the 11th Circuit Court of Appeals, trying again to halt the hand counts.
At the end of the day, Secretary of State Katherine Harris' announcement that she would consider allowing the hand-count counties to amend their totals raised more questions than it answered. Those counties have until 2 p.m. EST Wednesday to fax a memo listing the "facts and circumstances" that would justify the hand tally to Harris' office here, so she can use her "discretion" to decide whether she'll accept amendments to the already certified results.
Attorneys for Harris had argued that she had no authority to accept amendments except in case of voter machine malfunction or natural disaster. But Leon County Circuit Judge Terry Lewis disagreed. Though he said counties must abide by her decision to set a 5 p.m. Tuesday deadline for submitting their election returns, he quarreled with her notion that only extreme circumstances would allow her to certify amended results.
"I give great deference to the interpretation by the secretary of the election laws," Lewis wrote in his nine-page decision. "And I agree that the canvassing boards must file their returns by 5 p.m. today. I disagree, however, that the secretary is required to ignore any late-filed returns absent an act of God."
So the question that remains unanswered, and continues to loom in state and federal court, is whether the hand counts underway will ever be completed, and whether their results will matter.
Volusia County: Results from Volusia, the only county to complete a hand count before the Tuesday deadline, showed a net gain of 98 votes for Gore. The county was unable to reconcile a difference between the number of machine-counted ballots and the number of hand-counted ballots. "We decided that if we have to choose with something a computer tells us as opposed to the number of ballots we've held in hand, we're going to go with the number we've held in hand," said Volusia County Canvassing Board chairman Michael McDermott. "I wish that the law had allowed us more time to do this at greater length."
McDermott said he would have liked to have "conclusively resolved" the difference in numbers between the machine and hand counts. "But as you know we're under the gun here ... and it was very tense."
The fact that the state certified Volusia's hand-count result would seem to raise questions about whether Harris will be able to refuse to certify results that come in later this week from other counties.
Palm Beach County: On Tuesday the situation got curiouser and curiouser. The county's canvassing board suspended its hand count early Tuesday morning based on Harris' opinion that the recount was not legal. Shortly after officials adjourned, Florida Attorney General Bob Butterworth submitted a conflicting opinion, arguing that the recount underway was indeed legal and proper.
Trusting either side's legal objectivity is made more difficult by the fact that Harris is a Republican and a Bush campaign Florida co-chairwoman; Butterworth, meanwhile, was the state chairman of the Gore campaign. Lewis did not rule directly on which opinion was correct, and Palm Beach immediately asked the Florida Supreme Court to offer advice on which interpretation should prevail. Broward County has joined Palm Beach's request seeking guidance from the state's high court.
But before the Supreme Court could rule, at 4:30 p.m. Tuesday Palm Beach County Canvassing Board members reversed their morning decision, and voted 3-0 to resume their count despite the secretary of state's opinion. That count will resume at 7 a.m Wednesday.
Palm Beach Canvassing Commission chairman Charles Burton, who had made the motion to suspend the recount in the morning, said he had hoped to have guidance from a court on how to proceed in light of the conflicting opinions from two state officials. "But I do think we need to move forward. If we start and the Supreme Court tells us to stop, then that's what we'll have to do," he said.
The commission's attorney warned that there was a binding opinion from the Department of Elections prohibiting the commission from continuing its recount. "What happens, do we go to jail? Because I'm willing to go to jail," said canvassing board member Carol Roberts.
Palm Beach County is where Democrats charge that confusion resulted in the invalidation of 30,000 ballots for president, an outsized vote for Reform Party candidate Pat Buchanan and numerous lawsuits by private citizens alleging an abridgment of their voting rights by a bad ballot design. After recounting 1 percent of the county's precincts by hand earlier in the week, Palm Beach found an additional 19 votes for Gore.
Tuesday also brought the return of ballot minutiae to the forefront in Palm Beach. A suit filed by Democrats in Circuit Court asked that so-called dimpled chads be counted as votes. Under the current county recount guidelines, only ballots whose chads have been partially separated from the ballot -- so-called hanging chads or swinging doors -- are being counted as votes. A dimpled chad, a ballot on which the chad has been indented but not actually pierced, remains uncountable.
Broward: Faced with Harris' opinion that the recount was illegal, Broward County officials elected not to conduct a full hand count Tuesday. Another heavily Democratic county, Broward also conducted a 1 percent test of ballots, picking up four votes for Gore.
Soon after the canvassing board voted against the recount, the county Democratic Party sued Broward County, demanding it conduct the full recount. Then the county joined Palm Beach's request seeking guidance from the Supreme Court on whether it could legally finish its recount -- leaving open the possibility that a full hand count might begin again -- and local Democrats dropped their lawsuit.
Miami-Dade: The Gore campaign suffered a huge blow late Tuesday when election commissioners in Miami-Dade elected not to conduct a full hand recount. Earlier in the day, county employees tallied about 5,800 ballots by hand, roughly 1 percent of the votes cast countywide. But after the tally ended in just a six-vote pickup for Gore, the commissioners elected against counting all 60,000 ballots.
Next to Broward, Dade handed Gore the most votes on Nov. 7 -- 328,802. Republicans claim that the strong pro-Gore tilt -- and not the possibility of error -- is what put Miami-Dade on the Democrats' must-count list. "What's become increasingly clear is that Al Gore is targeting not just which counties, but which precincts, to count again," said Bush spokesman Scott McClellan.
After civil rights organizations like the NAACP spent the weekend airing grievances that ranged from incompetence to fraud, the decision to recount was made on the narrowest of arguments: that the 10,700 countywide "undervotes" -- ballots that did not register a presidential choice -- could tilt the state's vote toward Al Gore. For any scandalmonger, the technicality of the argument was a bit of a letdown.
In the end, the results of the count flew in the face of conventional wisdom: that recounts benefit the victor. With Gore picking up only six votes, it remained unclear whether Democrats would file suit against county officials in Miami-Dade as they did in Broward. But Gore attorney David Boies implied that another lawsuit was imminent.
Alicia Montgomery contributed to this report.