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Florida Supreme Court orders recount of undervotes

By
P. MITCHELL PROTHERO
A Gore supporter holds a sign as police guard the outside of the United States Supreme Court in Washington, D.C. on December 11, 2000. George W. Bush and Al Gore attorneys made their oral arguments on the Florida vote recount before the United States Supreme Court Bush and Gore supporters rallied outside. Photo by Bill Clark/UPI
A Gore supporter holds a sign as police guard the outside of the United States Supreme Court in Washington, D.C. on December 11, 2000. George W. Bush and Al Gore attorneys made their oral arguments on the Florida vote recount before the United States Supreme Court Bush and Gore supporters rallied outside. Photo by Bill Clark/UPI | License Photo

TALLAHASSEE, Fla., Dec. 8, 2000 (UPI) A sharply divided Florida Supreme Court ruled 4-3 Friday to order a hand recount of presidential undervotes in Miami-Dade county -- and every other Florida county where undervotes have not yet been tabulated -- in a decision that gave life to Democrat Al Gore's presidential aspirations and sent Republican George W. Bush appealing to the U.S. Supreme Court.

"Although in all elections the Legislature and the courts have recognized that the voter's intent is paramount, in close elections the necessity for counting all legal votes becomes critical," Justices Harry Lee Anstead, Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince said in the 40-page majority opinion. It said "consistent with the legislative mandate and our precedent, although the time constraints are limited, we must do everything required by law to ensure that legal votes that have not been counted are included in the final election results."

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Chief Justice Charles T. Wells sharply dissented in a 22-page opinion.

"Importantly to me, I have a deep and abiding concern that the prolonging of the judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis," Wells said, noting the contest must be completed by Tuesday or risk putting in jeopardy Florida's 25 electoral votes when the Electoral College votes for president Dec. 18.

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"I agree with a quote from John Allen Paulos, a professor of mathematics at Temple University, when he wrote that, '(t)he margin of error in this election is far greater than the margin of victory, no matter who wins.' Further judicial process will not change this self-evident fact and will only result in confusion and disorder."

Justices Major B. Harding and Leander J. Shaw Jr. also dissented.

But the court majority ordered undervotes throughout the state to be counted and that a total of 383 votes -- 215 from Palm Beach County and 168 from Miami-Dade -- be added to the total of Gore, keeping his presidential hopes alive. The ruling cut the lead of Republican Texas Gov. George W. Bush from 537 down to 154 votes out of nearly 6 million cast.

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The action capped a day that many thought might bring finality to the presidential election more than a month after voters went to the polls Nov. 7.

The Florida Supreme Court majority voted to overturn Leon County Circuit Judge N. Sanders Sauls' decision on Monday that Gore's legal team had failed to prove a "reasonable probability" that manual recounts in Miami-Dade and Palm Beach Counties would lead to a different outcome. The high court said the proper standard that should have been applied was whether the results of the election were placed in doubt.

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"On this record there can be no question that there are legal votes within the 9,000 uncounted votes (in Miami-Dade County) sufficient to place the results of this election in doubt," the majority opinion said.

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The high court upheld Sauls' ruling that the Nassau County Canvassing Board properly excluded from its final count 51 Gore votes during a recount and instead certified its original count figures; and that the Palm Beach County Canvassing Board properly excluded 3,300 ballots not found to be legal votes.

The Bush campaign immediately appealed the Florida Supreme Court ruling to the U.S. Supreme Court, which on Monday had vacated an earlier Florida high court ruling that ordered manual recounts. The U.S. Supreme Court had asked the Florida high court to explain its reasoning.

George W. Bush's attorney Ted Olson speaks to the media following oral arguments on the Florida vote recount case at the United States Supreme Court in Washington, D.C. on December 11, 2000. Photo by Bill Clark/UPI

The state high court decision was announced at 4 p.m. EST, when court spokesman Craig Waters came to a podium on the steps of the Supreme Court.

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"By a vote of 4-3," he read, "the majority of the court has reversed the decision of the trial court in part," he said, referring to the ruling on Monday by Sauls.

"It has further ordered that the Circuit Court of the 2nd Judicial Circuit here in Tallahassee shall begin a manual recount of the approximately 9,000 Miami-Dade ballots that registered undervotes."

At that moment, cheers went up as Waters continued. The undervotes -- ballots on which machines detected no vote -- in heavily Democratic Miami-Dade had been widely expected to add to Gore's total but the Miami-Dade canvassing board decided not to proceed with a recount after conducting a sample of three precincts that netted 168 more votes for Gore. The board said it could not complete a count and still have met the court-ordered deadline.

"In addition, the circuit court shall enter orders ensuring inclusion of the additional 215 legal votes for Vice President Gore in Palm Beach County, and the 168 additional legal votes from Miami-Dade County.

"In addition, the circuit court shall order a manual recount of all undervotes in any Florida county where such a recount has not yet occurred.

"Because time is of the essence, the recount shall commence immediately. In tabulating what constitutes a legal vote, the standard to be used is the one provided by the legislature. A vote shall be counted where there is a clear indication of the intent of the voter."

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The justices found that Sauls had not considered a new Florida election law that served as the foundation for the Gore appeal presented by attorney David Boies.

Saul's decision "fails to recognize the specific and material changes to the statute which the Legislature made in 1999 that control these proceedings," the majority opinion said.

As for the lower court's contention that the Gore team had failed to show that a recount might lead to a different outcome in the election, the high court also disagreed.

"Here, there has been an undisputed showing of the existence of some 9,000 'undervotes' in an election contest decided by a margin that measures in the hundreds," the opinion said. "Thus, a threshold contest shows that the result of an election has been placed in doubt, warranting a manual count of all undervotes."

The principle conclusion of the court was that the only way to fully examine the election is to examine any vote that did not show a result.

"It is absolutely essential in this proceeding and to any final decision that a manual recount be conducted for all legal votes in the state in all Florida counties where there was an undervote."

"By failing to examine the specific, identified group of uncounted ballots that is claimed to contain the rejected legal votes, the trial court has refused to address the issue presented," the majority ruled.

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If Gore were to prevail in the recount, it also raised the specter of a clash with the Republican-dominated Florida Legislature, which convened Friday with an eye to naming its own slate of electors if necessary by Wednesday. Both the Speaker of the House Tom Feeney and Senate President John McKay are Bush electors. If the Legislature named a slate of Bush electors and the Florida Supreme Court certified a slate of Gore electors, the stage would be set for a clash in the U.S. Congress in a historic battle for the highest office.

Reaction from the Bush camp was swift and blunt. Speaking at a hastily arranged press conference in Tallahassee, former U.S. Secretary of State James Baker, who leads Bush's recount efforts, condemned the decision.

"This is what happens when for the first time in modern history, a candidate resorts to lawsuits to try to overturn the outcome of an election for president," he said. "It is very sad. For Florida, for the nation, and for our democracy. Today's ruling by four justices of the Florida Supreme Court is of course a disappointment. Its reasoning and result place the court once again at odds with sound judgments of Florida's lower courts, the Florida Legislature, local election officials, and, in our view, the U.S. Supreme Court. This action will unfortunately produce ongoing uncertainty and could ultimately disenfranchise Florida's votes in the Electoral College."

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Gore's team, which had suffered through several defeats the past week and was clearly facing its last chance of continuing the fight, hailed it for its merits. It also called upon the state Legislature to stay out of the fray, while the recounts continue.

"This decision is not just a victory for Al Gore and his millions of supporters; it is a victory for fairness and accountability in our democracy itself," the statement by Gore campaign Chairman William Daley said. "Let the count begin not just of the votes yet to be counted in Miami-Dade County -- but as the court wisely ruled -- in every Florida county where undervotes have yet to be counted. Then Florida and America will know with certainty who has really won the presidency. We urge everyone to let the counting, supervised by the independent judiciary, proceed without interruption to a speedy conclusion. All of these matters should be resolved by Florida independent courts -- not by politicians."

Al Gore's attorney David Boies speaks to the media following oral arguments on the Florida vote recount case at the United States Supreme Court in Washington, D.C on December 11, 2000. Photo by Bill Clark/UPI

Local Republican politicians did not seem convinced by Daley's call. A top GOP member of the state House of Representatives vowed to continue the special session that began to meet on Friday.

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"Following the Constitution of the United States of America can be difficult and unpleasant," said Miami Rep. Mario Diaz-Balart.

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