Cover Story

A judge a day keeps defeat away

"A judge a day keeps defeat away" Continued...

Issue: "Mad Dash," Dec. 16, 2000

Gore motion to accept partial recounts from Palm Beach and Miami-Dade: denied.

Gore motion to accept the Palm Beach recount submitted two hours past the deadline set by the state Supreme Court: denied.

Gore motion to force the Miami-Dade County canvassing board to recount its ballots by hand: denied.

Gore motion to force the Palm Beach canvassing board to use a more liberal standard for accepting dimpled chads: denied.

Gore motion to force Nassau County to certify a suspect recount that would add 51 votes to the Gore total: denied.

A shutout.

Thus, in the first test of the merits of his case, the vice president's arguments were eviscerated by a 59-year-old Democratic judge. But even before he finished reading his brief decision, Judge Sauls's 15 minutes of fame were over. As he spoke, Democrats filed an emergency appeal with the state Supreme Court, and Judge N. Sanders Sauls became just another speed bump in Al Gore's career path.

Democrats put on a brave face, noting that they were now headed back to the site of their greatest legal victory in the protracted election battle. But the question now before the panel of seven Democrat-appointed judges was very different from the one addressed in November. In its earlier decision, the court ruled only on the timeframe for counting ballots, not on the validity of the ballots themselves. The Gore team in November asked the court to establish standards for counting dimpled chads, but the judges pointedly refused to do so. "We decline to rule more expansively, for to do so would result in this court substantially rewriting the code," they wrote. "We leave that matter to the sound discretion of the body best equipped to address it-the legislature."

Now the same Gore lawyers were back before them a second time, arguing once again that the court should not only force hand counts in Palm Beach and Miami-Dade, but that it should set the standard for what constituted a valid vote. If that had been a difficult argument to make in November, it was even more difficult now, with the Supreme Court of the United States looking over the shoulders of the Florida judges.

Small wonder, then, that cracks began to appear in Mr. Gore's solid foundation of Democratic support almost as soon as Judge Sauls announced his decision. "He has one more appeal to the Florida Supreme Court, and he'll probably lose it, and then it's over," admitted Rep. Barney Frank (D-Mass.), one of the most liberal voices on Capitol Hill.

"I think we're entering the Hail Mary phase of this election," agreed Leon Panetta, President Clinton's former chief of staff. "The choice is whether you engage in a scorched-earth legal process ... or you recognize that we're beyond the time we need to select a president for this country."

Public opinion was eroding even faster than the support of prominent Democrats, however. An MSNBC poll released Dec. 5 found that 59 percent of Americans believed the vice president should concede the election-an increase of 9 percentage points compared to the week before.

Indeed, by week's end, Mr. Gore's best strategy for winning the White House appeared to be in throwing out Bush votes rather than gaining new votes of his own through a recount. Despite weeks of insisting that he was fighting for the principle that "every vote should count," the vice president was keeping a close eye on two lawsuits seeking to void some 25,000 votes in two central Florida counties. Because both Seminole and Martin Counties tilt Republican, eliminating their absentee ballots from the statewide vote totals would give Mr. Gore a solid win.

In both counties, the outline of the cases was the same, and the facts were not in dispute. After widespread vote fraud in a 1997 mayoral election, Florida tightened the requirements for absentee ballots. To vote absentee, Floridians must now complete a detailed ballot application, providing, among other things, their voter registration and Social Security numbers. Both Republicans and Democrats sought to make the process easier by mailing ballot request forms to individual voters, but due to a computer software problem some GOP applications went out without a space for a voter registration number. When those applications were returned, they were set aside as incomplete, meaning the voter would get no ballot.

When Republican activists in the two counties heard about the incomplete applications, they went to the county election office to begin the laborious process of filling in voter registration numbers based on the other information on the form. In Seminole, the work was done in the election office; in Martin, the election supervisor allowed workers to remove the applications from the premises.

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