Did the Gore team make its case?

Most legal experts doubt Judge Sauls will overturn Florida canvassing boards and grant more hand counts.

By Jake Tapper

Published December 4, 2000 8:06PM (EST)

"I think Barry Richard's a fine lawyer," David Boies, Vice President Al Gore's lead attorney, said to reporters during the brief break after both he and Richard, representing Gov. George W. Bush, completed their closing comments. "I think he made the best case he could with the material he had to work with" -- implying, of course, that the Bush team's basic case was flimsy.

But according to interviews with Florida legal experts, it's Boies who had the weaker case as he represented Gore in his contest of Bush's certified electoral victory in Florida. Boies and Co. did their very best with the very little they were given to work with, these experts say -- but it probably wasn't enough.

"They bit off more than they could chew to begin with," said Steve Uhlfelder, former chairman of the American Bar Association's election committee and a Tallahassee attorney.

"Gore's people had a tough burden to meet, and at the end of the day I don't think this judge" -- folksy, conservative Circuit Court Judge N. Sanders Sauls, a Democrat -- "will go with them," Uhlfelder said. "It's too difficult a task to go down their route." Furthermore, Uhlfelder thinks that the Florida Supreme Court will second Sauls' decision.

There were a couple of decent moments of drama on Sunday afternoon, but to contest an election result, a candidate faces a tremendous burden. He must show a clear preponderance of evidence that something seriously wrong went down on Election Day.

After the hearing concluded, Boies grabbed a beer and took the elevator down to the parking garage. Every member of the Bush legal team, conversely, filled the Circuit Courthouse rotunda and took questions from the media, repeating their basic talking points: that their Gore counterparts hadn't met the considerable burden of proof necessary for a contest to be successful.

Boies presented a serious and compelling argument about ballot problems, one that may result in voting reforms all across the land. But, experts say, he didn't present evidence that exactly jumped up, grabbed Judge Sauls by the lapels and shook him silly until he decided to take serious steps to reform whatever wrongs were done to Floridians on Nov. 7.

Joseph Little, a professor of state constitutional and governmental law at the University of Florida College of Law for the past 33 years, observed that Richard "really repudiated most of the Gore argument."

"The question is who really has the decision to call for a manual recount," Little said. "The Bush people argue that that is a decision to be made by the canvassing boards, and the only way a judge can substitute something and require a new vote is to show that the canvassing board abused its discretion. And there's nothing in the evidence to support that."

Richard's effective closing argument, in which the former Democratic legislator passionately called for adherence to the state's law, was summed up when he dismissed the bad fortune of Palm Beach County's ballot hand recounters on missing by just over two hours the Florida Supreme Court's specially assigned 5 p.m. deadline on Nov. 26.

Boies said that the votes should count because, well, they're votes. Florida statute allows an election contest if an election has been decided based on illegal votes that were counted or legal ones that weren't. The "undervotes" in Miami-Dade and Palm Beach counties were legal votes, Boies said, that the canvassing boards didn't try hard enough to count.

Wrong, said Richard. In Miami-Dade, the canvassing board had the discretion not to pursue a manual recount. And in Palm Beach, the recount results didn't come in on time. Richard asked by what authority a circuit court judge could overrule the Supreme Court-set deadline that Palm Beach didn't meet.

Of course the late Palm Beach votes can't count, he argued. "That's the way it is," Richard said, "because we have laws."

Boies mocked this in his rebuttal. "He says, 'Well, maybe there are some votes there, maybe there are some people who intended to vote. But it's too late and that's that.'" He characterized this as a "bad things happen" argument. "With respect, your honor, Florida statute and Florida case law do not permit the court to say, 'Well, we're simply going to ignore the will of the voter.'"

It sounds like a strong argument, but a remedy is tough to attain. Boies' position is that Sauls can overrule the canvassing boards' decisions: not to count 3,300 disputed dimple-chadded ballots in the case of Palm Beach County and not to conduct a hand recount in the case of Miami-Dade County. Experts say that would require a tremendous amount of judicial activism that most observers just don't expect of Sauls.

"He'd have to set standards [on ballot assessments], he'd have to find people to count, he'd have to figure out which ballots to count," Uhlfelder said. Florida "statute never contemplated this situation."

"My crystal ball's as cloudy as anybody's," added Nat Stern, a professor of constitutional law at Florida State University College of Law. "But from where I sit, it seems that -- as a practical matter -- it's not going to be practical to issue the remedy that Gore is seeking."

Even if Sauls rules in Gore's favor, Stern observed, it's unlikely that he could come up with a solution that would have the questionable votes counted -- with time for appeals -- by Dec. 12.

The Gore team was criticized for calling only two witnesses, neither of whom seemed to wow the courtroom with dazzling new evidence that would compel Sauls to essentially overrule the canvassing boards.

"They have an obligation to discern the intent of the voter," Boies said of the canvassing boards in his rebuttal, the last comments of the contest, at 10:30 p.m. Sunday night. "There isn't any doubt that the number of votes at issue could affect the results of this election."

A U.S. Court of Appeals ruling that the Miami-Dade canvassing board shirked its duty by not hand recounting throws the decision to Sauls to follow through, Boies said. "There is simply, I respectfully submit, no way out of counting those 9,000 ballots" from Miami-Dade that have yet to be hand recounted.

But Sauls will have to weigh this argument, which reared its head for the first time late Sunday night, against the last sentence of Richard's closing argument. It was then that Richard asked the judge to contemplate whether "Florida is prepared to tell the American people that it will disqualify its electors and disqualify the president on the testimony of only the two witnesses presented by the plaintiffs."

No one can safely predict how Sauls will rule, of course. But in courtroom 3-D Sunday night in Tallahassee, it sure felt pretty certain that Sauls' answer, due Monday morning, would be a big Southern-fried no.

Jake Tapper

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

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2000 Elections Al Gore George W. Bush