Gore's unexpected Republican aid

The veep's chance for his latest appeal to the Florida Supreme Court comes from a new, GOP-backed state law.

By Eric Boehlert

Published December 8, 2000 12:41AM (EST)

If, by chance, the Florida Supreme Court tosses Vice President Al Gore a legal life raft by overruling Circuit Judge N. Sanders Sauls, allowing hand recounts of disputed ballots, Gore might want to send a quick note of thanks to a most unlikely helper: Bruce "Landslide" Parker.

Parker is a Republican county commissioner in central Florida's Polk County whose excruciatingly close reelection race in 1996 (he lost by 18 votes and then recaptured the office in '98) spurred a sympathetic Legislature in Tallahassee to rewrite the state's election law regarding formal challenges, or contests.

Concerned that the previous state statute was too severe -- it was written when Democrats dominated state politics and stipulated candidates prove fraud when contesting a race -- Florida's Republican-run House and Senate unanimously passed legislation last year that made it simpler to challenge election results.

"Absolutely, it's much easier to contest," says Parker. "Now, all you have to do is say, 'I think I won and I know where there are enough votes for me to win.'"

The county commissioner concedes the irony of Republican lawmakers creating a window of opportunity for Gore to contest this race. ("It's not exactly a bill I want to brag about," the statute's cosponsor recently quipped to the Miami Herald.) But Parker stands by the legislation's intent. "It's a good law. If you're close and within a few votes, then you have right to due process," he says.

Gore lawyers will argue before the Florida Supreme Court that Sauls essentially ignored the new statute and, relying on a 1982 state appeals decision, created a burden of proof for the contest that was too high, and not consistent with the 1999 law.

The brainchild of the Florida Legislature's Committee on Election Reform, the statute, among other things, codified grounds for contesting an election and garnered very little attention. "It was housekeeping," says University of Miami law professor Terence Anderson. "It's the kind of thing you do when you're bored, like rewriting the office manual."

But during the weekend-long hearing in Sauls' court, the new election law language, particularly Section 168, was put under a microscope by lawyers and referenced repeatedly by lead Gore attorney David Boies in his courtroom summation.

In Section 168, which spells out grounds for contests, a crucial new subsection, 3c, was included in the 1999 law: "receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the results of the election."

In a race decided by just 537 votes in Florida, that new legislative language, the Gore side argued, covered the 14,000 disputed, uncounted ballots in Palm Beach and Miami-Dade counties, which represented the "rejection of legal votes sufficient to change or place in doubt the results of the election."

"Under the old statute he would have had to prove misconduct, and it's unclear whether failure to count undercounted votes qualifies," says Anderson. "Now Gore says, 'Look judge, Section 3c."

But Sauls wasn't buying it. Reading from the bench, he ruled, "It is not enough to show a reasonable probability that election results could have been altered by such irregularities or inaccuracies. Rather, a reasonable probability that the results of the election would have been changed must be shown."

Sauls cited a '82 case, Smith vs. Tynes, in which Durwood Smith went to court after losing a race for county school superintendent to Jesse Tynes. Smith claimed some Tynes supporters violated local elections laws, such as placing campaign signs too close to polling locations. The state's appeals court ruled those were technical violations and that Smith had not proven with a "reasonable probability" that without those violations, the election results would have changed.

Gore's lawyers will argue that because of the 1999 contest statute, that '82 decision is irrelevant. Also, in light of the recent U.S. Supreme Court ruling, which urged the Florida Supreme Court to abide by the state Legislature's intent when deciding election matters, Gore's side will argue the legislative contest statute should take priority.

Of course, the problem for Gore is that even if the Florida Supreme Court adopts that argument, it mighty simply send the case back to Sauls and instruct him to use a different standard. And because his ruling was so sweeping against Gore, it's doubtful he would dramatically alter the outcome.

Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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