The court comes through for Gore

The recounts count, and dimpled chads might, too, but a menacing James Baker promises the GOP will fight back.


Jake Tapper
November 22, 2000 9:56AM (UTC)

"That's the biggest bunch of crap I ever heard in my life!" yells a shaggy supporter of Gov. George W. Bush, huddled in the cold, summing up the emotions of Republicans everywhere upon hearing Tuesday night's Florida Supreme Court ruling. The highest court in the Sunshine State offered a victory -- at least for now -- for Vice President Al Gore, extending the deadline for counties to recount votes, or tally unread, unrecorded votes that appear to be Gore's last hope.

Instead of the Nov. 12 deadline for the recounts, fanatically adhered to by Secretary of State Katherine Harris, counties now have until Sunday at 5 p.m. EST -- or Monday at 9 a.m. EST if Harris' office isn't open Sunday.

Advertisement:

What's your name? I ask the loud, depressed man.

"Joe Corbin," he says. "But it might as well be mud."

No doubt others in the Bush camp feel the same way, even though the court ruled exactly the way that experts predicted it would.

"Twenty-five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases," Chief Justice Charles Wells wrote in the unanimous opinion. "We consistently have adhered to the principle that the will of the people is the paramount consideration."

The ruling wasn't a total win for the Gore team, however, begging off as it did on opportunities to set a statewide standard on which chads are deemed acceptable to connote voter intent. "We declined to rule more expansively, for to do so would result in this Court substantially rewriting" election code, the court wrote, lobbing the ball into the Legislature's court. But the court did offer a strong push in the direction of permissiveness, citing an Illinois Supreme Court decision that ruled:

"The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect."

In Illinois, pregnant and dimpled chads are both counted.

Advertisement:

And as if that weren't enough, the court went so far as to offer specific deft slams to claims made by many in la famille Bush, ruling against:

  • Harris' interpretation that hand recounts can only be acceptable when there is "error in the vote tabulation," which she deemed meant "error in the vote tabulation" system. She said that such a standard "only means a counting error resulting from incorrect election parameters or an error in the vote tabulating software," the court wrote. "We disagree."

  • Former U.S. Secretary of State James Baker's -- and indeed, the entire Bush camp's -- assertion that machine recounts are preferable to hand recounts, since the latter is subject to "mischief" and "subjectivity." "Although error cannot be completely eliminated in any tabulation of the ballots," the court wrote, "our society has not yet gone so far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors of machines. For this very reason Florida law provides a human check."

  • Harris' choice of the Florida statute that used the word "shall" when it came to her discretion to reject any recounts, instead of a conflicting statute that said that she "may" reject them. For one, the "may" language is in a more recently drafted statute, which gets preference. Additionally, other "mays" in another statute led the court to lean the "may" way. Ironically, the very overseas absentee ballots that have inflated Bush's lead to (as of 10:45 p.m. EST Tuesday) 930 votes helped Gore in this ruling. "In light of the fact that overseas ballots cannot be counted until after the seven-day deadline has expired," the court ruled that "the permissive language" should rule the dispute.

    Most important, however, was the court's adherence to the first line in the state Constitution. "All political power is inherent in the people." Harris could ignore this only under two circumstances: if rejecting the recount would have prevented a candidate, party or voter from contesting an election certification, or if somehow it prevented "Florida voters from participating fully in the federal electoral process."

    "But to allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory" counties who didn't get their returns in on time "misses the constitutional mark," the court concluded.

    Gore, of course, still will have to fend off other litigation from Bush and his lawyers challenging this ruling, as well as challenges to the liberal chad rules he wants, and God knows what else. Plus, of course, he still has the little matter of earning more votes than Bush has. But in a state with a governor named Bush, a secretary of state who might as well be named Bush, a Republican House and Senate, as well as a daunting number of Democratic voters who can't figure out a butterfly ballot, Gore finally caught a break in Tallahassee.

    He can thank the state Supreme Court, all of the members of which were appointed by Democratic governors. And he should be setting up a shrine to the late Lawton Chiles.

    The court's ruling came down before 10 p.m. EST. By the time the clock struck midnight, the world had heard responses from Gore, his attorneys and Bush's man in Tallahassee, Baker.

    Gore's statement, made from Washington, was all about looking presidential and above the fray.

    "I don't know what these ballots will show," Gore said. "I don't know whether Governor Bush or I will prevail. But we do know that our democracy is the winner tonight."

    Yuck.

    Gore said that, despite rumblings from some Democratic operatives, he disavowed "any effort to persuade electors to switch their support from the candidate to whom they are pledged. I will not accept the support of any elector pledged to Governor Bush." He also tossed out, once again, his offer to meet with Bush -- knowing that Bush will never agree to do it, and that every time he makes the offer and Bush rejects it, the Texas governor looks like a spoiled brat.

    "Governor Bush and I should also continue to urge our supporters to tone down their rhetoric and lift up their respect for democracy," Gore said.

    He deemed it now appropriate for both him and Bush to begin planning their respective transitions. Perhaps when he and Bush meet, they can compare color swatches for White House drapes.

    Back in Tallahassee, two of Gore's top attorneys -- folksy Floridian Dexter Douglass and mussed-up giant-killer David Boies -- appeared in the state Senate hearing room that the press corps has commandeered.

    "The Supreme Court has done what we asked it to do," Boies said.

    Beyond just gloating, however, Boies was trying to signal across the state that Broward and Miami-Dade counties were conducting their hand recounts appropriately -- using the broadest definition of what stage of "chad" is acceptable -- while Palm Beach County isn't. Rattling off the page numbers and citing specific footnotes from memory, Boies noted that the court used the Illinois Supreme Court's liberal interpretation of which chad is kosher -- a citation that he had provided to them in his brief.

    "Any indication of the intent of the voter -- that is what counts," he said. "We would hope that is the standard that Palm Beach County would promptly employ. In each of those counties it's terribly important that those votes are counted."

    In an open-necked shirt, Douglass offered an olive branch to Harris, who he characterized, in true Sammy Davis Jr. fashion, as "a personal friend of mine." Calling for an end to Harris-bashing -- "Let's quit it," he said -- Douglass said, "Nothing we have done has been to belittle her as a person."

    Asked if the Gore team would support an effort for a statewide hand recount if Bush wanted one, Boies noted that the Bushies have repeatedly said that they don't want one, and that the court's plan didn't seem to allow enough time for a statewide recount. Eventually he sidestepped the question altogether as a hypothetical before any of us realized what he had done.

    Lastly came Baker, at 11:56 p.m. His blood boiling, venom seeping from the corners of his mouth, Baker began by noting that Monday, Justice Major Harding asked, "Is it right to change the rules in the middle of the game?"

    "The Florida Supreme Court and some Democratic county electoral boards have now decided to do just that," Baker said. "Florida's Supreme Court rewrote the Legislature's statutory system, assumed the responsibilities of the executive branch, and sidestepped the opinion of the trial court as the finder of fact. Two weeks after the election, that court has changed the rules and invented a new system for counting the election results."

    Then, the cue, the foreshadowing of where we go next.

    "One should not now be surprised if the Florida Legislature seeks to affirm the original rules," Baker said.

    (Clap of thunder, flash of lightning.)

    Baker clarified, when asked, that the Bush campaign wasn't going to "seek relief from the Florida Legislature," just that he "would not be surprised" -- (Stage direction: Lift arms in air innocently, giving a "Who, me?" look) -- "to see the legislature take some action to get back to the original statutory provisions." He said that neither he nor Bush had been in touch with anyone from the Republican-controlled Florida Legislature, though he couldn't vouch for anyone else.

    What exactly could do the legislature do? Article II, Section 1 of the U.S. Constitution states that each state may select its presidential electors "in such manner as the Legislature thereof may direct." So it is not unforeseeable that the state legislature would take matters into its own hands and choose the state's 25 electors, especially if the election results remain subject to legal attack up until the deadline for selecting electors in December.

    And while he had the world's attention, having floated this unbelievable proposition, Baker slammed the very concept of "the infamous dimpled chad."

    He noted that on Nov. 2, 1990, Palm Beach elections supervisor Theresa LePore, a Democrat, wrote that "a chad that is fully attached, bearing only an indentation, should not be counted as a vote." Baker said that Boies had been incorrect a few minutes earlier when he said that the Illinois Supreme Court OK'd pregnant or dimpled chads, which are still attached to the ballot though an indentation is visible.

    "The case wasn't talking about dimpled chads at all, it talked about hanging chads," Baker said, though a Chicago Tribune story from Nov. 21 specifically said that the Illinois "justices said a dented, or dimpled, chad is a valid expression of a voter's intentions."

    "All of this is unfair and unacceptable," Baker said. "It is not fair to change the election laws of Florida by judicial fiat after the election has been held. It is not fair to change the rules and standards governing the counting or recounting of votes after it appears that one side has concluded that is the only way to get the votes it needs. It is simply not fair, ladies and gentlemen, to change the rules either in the middle of the game, or after the game has been played.

    "Therefore," Baker concluded after a litany of whining that only a Texan could make sound intimidating, "we intend to examine and consider whatever remedies we may have to correct this unjust result."


  • Jake Tapper

    Jake Tapper is the senior White House correspondent for ABC News.

    MORE FROM Jake Tapper

    Related Topics ------------------------------------------

    2000 Elections Al Gore George W. Bush

    BROWSE SALON.COM
    COMPLETELY AD FREE,
    FOR THE NEXT HOUR

    Read Now, Pay Later - no upfront
    registration for 1-Hour Access

    Click Here
    7-Day Access and Monthly
    Subscriptions also available
    No tracking or personal data collection
    beyond name and email address

    •••






    Fearless journalism
    in your inbox every day

    Sign up for our free newsletter

    • • •