A judge hearing a Seminole County Democratic voter's case threw out a motion by the George W. Bush team to block the lawsuit. Judge Nikki Clark ruled Tuesday evening that the case would go forward.
In the Seminole County case and in a related case in Martin County, local Democrats are asking that approximately 25,000 absentee ballots be tossed out because Republican volunteers were allowed to fill in incomplete ballot requests. If a court rules in the Democrats' favor, all of the absentee votes from those largely GOP counties could be disregarded, resulting in a net gain of thousands of votes for Vice President Al Gore.
That small victory for Gore comes as many pundits are taking bets on when he'll concede the presidential race. Gore was upbeat and smiling at an afternoon press conference. "I don't feel anything but optimistic," Gore told reporters, claiming that his chances were still 50-50. Though transition meetings were conspicuously absent from his Tuesday calendar, the vice president seemed prepared to keep fighting, denying that he'd been dealt major blows by recent court decisions. "I don't want to accept the premise that they've all been negative," Gore said.
The vice president would not discuss conceding, and wouldn't set a firm date as to when his legal fight would end. The two Florida cases involve disputed absentee ballots that could be pivotal in the election's ultimate outcome.
Of the Seminole County case, Gore said that Republicans "were allowed to roam around unsupervised ... and fix all the ballot applications" from their party members, and that Democrats were denied the same opportunity. The vice president said that "more than enough votes were potentially taken away from the Democrats" in the absentee ballot incidents to make the difference in the race. Gore was careful, however, to repeatedly mentioned that he was not a party to either case.
The vice president's tone was a marked contrast to that of many of his surrogates. Major Democrats have been announcing their support for Gore to see his election challenge case to the bitter end, provided that end occurs after the Florida State Supreme Court rules. Even Gore's top lawyer, David Boies, claims that the appeal ruling will be the end of the road.
The Florida Supreme Court will hear oral arguments Thursday about whether it should consider Gore's election challenge appeal. The appeal could be Gore's last chance to win the presidency.
The case moved there after Leon County Circuit Judge N. Sanders Sauls tossed out Gore's election challenge Monday afternoon. Sauls denied every claim raised by Gore's attorneys, citing "no credible statistical evidence" that the vice president would win the Florida election if the ballots in Miami-Dade County were recounted by hand.
Gore didn't even get a consolation prize. Sauls denied the vice president's request to have approximately 215 late manual recount votes from Palm Beach County certified, his request to have 51 votes Gore picked up in a Nassau County machine recount restored and even his request to have the six votes he earned in a manual recount of 1 percent of Miami-Dade County's ballots certified.
The ruling was a serious setback to the Gore campaign, which needs a recount of the ballots to have any hope of overturning Florida's certified election results, which show Bush winning the state by 537 votes.
Elsewhere in court, the 11th Circuit Court of Appeals heard arguments in a case Bush brought challenging the constitutionality of the manual recount process. A judge in that case asked whether the case mattered anymore, considering that Bush had already been certified the winner. Republican lawyer Ted Olson argued that the election battle wasn't over yet.
That's the message Sen. Joe Lieberman wanted to carry onto Capitol Hill, where he met with congressional Democrats on Tuesday morning. He didn't leave before hearing encouraging words from House Minority Leader Dick Gephardt and Sen. Minority Leader Tom Daschle.
Lieberman might have crossed paths with Republican vice presidential candidate Dick Cheney, who was talking transition with congressional Republicans. "We'll continue to work on putting together a Cabinet and to begin exercising our duties to the American people on Jan. 21," he said. Cheney didn't have much to say about when Gore should concede, displaying the new big-hearted spirit that Bush's team has adopted in the past 48 hours.
The only thing standing between Bush and the White House is the Florida Supreme Court. Its seven judges will have their hands full with election questions this week. Not only will the court be handling the election challenge appeal, but on Monday it also reinherited the manual recount case that was argued before the U.S. Supreme Court last week. Monday morning, the U.S. justices vacated the extended deadline that had been set by the Florida Supreme Court to allow for manual recounts. In a preliminary ruling, the nation's highest court remanded the case to the Florida Supreme Court for clarification on how that court made its Nov. 21 decision. The ruling was delivered "per curiam" -- i.e., by the entire court.
Specifically, the Supreme Court wanted to know if the Florida court had reached its decision based on a reading of the Florida Constitution or on a reading of Florida legislation. If the Florida court based its decision on the principle that the state Constitution trumps the Legislature, rather than on an interpretation of the intent of the Legislature, that decision would be more likely to be reversed by the high court. This is because the U.S. Constitution provides that state legislatures, not the courts, have the final say in how states' electors are chosen.
If state legislators are unhappy with how the Florida Supreme Court decides the two cases, they are ready to step into the election mess. Leaders of both houses laid the groundwork for an emergency session to choose the state's 25 electoral delegates. Given that the majority of Florida's lawmakers are Republicans, those delegates would likely be pledged to Bush.