"Sunshine laws" may reveal who really won

Florida's strong open-government statutes mean we'll eventually know for sure who got the most votes in the state's presidential election -- and it might not be the person who gets sworn in.

By Jake Tapper

Published December 1, 2000 10:36PM (EST)

Oddly, perhaps Vice President Al Gore's most compelling argument for continuing the recount came from conservative activist Larry Klayman.

Gore has had a tough spell -- on canvassing boards, in court and in the public relations arena -- in his attempts to have a Florida authority wade through the remaining 10,750 "undervote" ballots from Miami-Dade County that have yet to be hand-counted to discern, if at all possible, any votes in them thar ballots.

One of the most resonant arguments in favor of this move was first made publicly Monday, however, in a Tallahassee press conference. There Senate Minority Leader Tom Daschle, D-S.D., pointed out that it isn't a question of if these votes will be counted -- but when and by whom. Florida's open government, or "sunshine," laws are among the nation's most aggressive in guaranteeing public access to government records.

"There will be an accurate count," Daschle noted, saying it would be "tragic" if we only learn who really won months later and, moreover, because of the work of a college or newspaper. "That's in large part our message today," Daschle said.

But the argument kind of disappeared after that, and Democrats focused their P.R. energies on trotting out voters from Palm Beach, Miami-Dade and Duval counties who feel disenfranchised. Its latest manifestation was in a Gore brief filed on Thursday for Friday morning's U.S. Supreme Court hearing, though the issue went undiscussed in the 90-minute arguments.

"While state courts are still struggling to determine whether all the lawfully cast ballots will be counted," the brief stated, "petitioner [Bush] seeks to secure this Court's blessing for leaving to historians the question of who garnered the most votes for President in the State of Florida on November 7, 2000."

The argument was born Monday morning, when Daschle was being briefed by members of the Gore legal team, one of whom found it intriguing that Klayman, head of Judicial Watch, on Nov. 22 secured the right under Florida's sunshine laws to inspect the Palm Beach County ballots.

Klayman has been using his ballot access to allege malfeasance by Gore-supporting ballot counters. "If Klayman can do that," a Gore lawyer says, "then of course the media will." And sooner or later, the actual winner of Florida will be known.

The New York Times will have its tally, as will the Wall Street Journal, Fox News Channel, NBC, CBS, CNN, ad infinitum.

After all, the national media has been having a lot of fun with the sunshine laws, poring over Gov. Jeb Bush's e-mails and checking out who Miami Mayor Alex Penelas has been phoning up during his oddly mum post-election period. Several media organizations are currently suing Jeb Bush for his phone records, among other things.

The argument does make sense. Someone assuredly will use Florida's laws to get access to the ballots and definitively count Miami-Dade's 10,750 "undervotes" -- the ones the Bush campaign calls "no-votes" with Orwellian assurance, though, as with the Gore campaign, they truly have no idea what those ballots will reveal.

So with this as a given, the question is: Should the ballots be counted by judges now, before America officially has a 43rd president? Or should it be the New York Times and ABC News a few weeks after Gov. George W. Bush is sworn in?

And, assuming that Gore is shown to be the actual winner -- which the Bush team clearly worries about, otherwise it wouldn't do everything it can to stop the recounting -- one has to wonder, as a citizen (or even as a Bush supporter) what kind of mandate will that leave Bush? Under this scenario, he could be revealed to be not only the popular vote loser by more than 300,000 votes, but not even the legitimate winner of Florida except by a host of legal and political maneuvering.

Of course, Gore might not actually have all that many votes amongst the 10,750 "undervotes" of Miami-Dade. And there are more than 60,000 "undervotes" statewide, which might end up indicating an even larger Bush margin of victory than his current 537 vote landslide. But amid all of these unknowns, one thing is pretty clear: Americans will eventually know who actually won Florida. It's just a matter of timing.

Jake Tapper

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

MORE FROM Jake Tapper

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