Bush, Gore Lawyers Face Off in Fla. Court

Dec. 3, 2000 -- — Lawyers representing Al Gore and George W. Bush are slated to square off again in a Tallahassee courtroom starting at 9 a.m. after a day of arguments about chad, statistical voting probabilities and the physical properties of rubber.

At issue is whether to begin a new round of manual ballot recounts in Florida’s presidential election dispute, aspects of which have been argued all the way up to the U.S. Supreme Court.

Leon County Circuit Court Judge N. Sanders Sauls is presiding over the vice president’s unprecedented contest of a state’s certified presidential election results — a tally that gave the Texas governor a slim, 537-vote margin of victory.

After Democrats and Republicans each presented opening arguments and two witnesses on Saturday, Republican lawyers said they expect to present five or six more witnesses and wrap up their case today.

“This is an election contest,” lead Gore attorney David Boies said in his opening statement. “We have alleged that the certified results reject a number of legal votes and include a number of illegal votes.”

The Gore campaign is seeking a hand count of 14,000 “undervote” ballots — those that failed to register a vote for president in previous machine counts — from two heavily Democratic counties, Palm Beach and Miami-Dade. The Gore side wants the results of new recounts to be added to the state’s total election tally.

“The issue before the court is … are there legal votes which have been rejected?” said Boies.

The Gore team claims the answer to that question is yes, but Bush’s lawyers contend the certified results should stand and argued Saturday there is no legal basis for holding recounts only in selective counties.

“What [Mr. Boies] is attempting to do is to begin this court down a paththat inevitably leads to a destination that he must arrive at in orderto win,” said Bush attorney Barry Richard. “ If we accept Mr. Boies’ premise, there is no reason for atabulation on Election Night.”

The Case for Recounts

The Gore campaign says votes from the questionable ballots could be detected if counted by hand and, if included in the statewide tally, would allow the vice president to overtake his Republican rival’s narrow lead and claim victory in Florida’s decisive election.

The number of the disputed votes, Boies asserted, “[places] in doubt theresult of the election sufficiently so that those votes have got to be included in the vote tally.”

The vice president’s attorneys called as their first witness voting machine expert Kimball Brace, president of Election Data Services, who testified for three hours about the supposed unreliability of the punch-card system used in many Florida counties.

“If you put that stylus in on a slight angle … then that will actually create a dimple,” Brace told the court, holding up a stylus — the metal implement used to punch the paper ballot — and a sample ballot similar to the ones used in Palm Beach and Miami-Dade counties.

In a humorous moment, Brace spilled a pile of chad — the tiny pieces of paper dislodged when voters completely punch through their ballots — onto the bench, as he showed Judge Sauls an actual Palm Beach voting machine.

Bush’s attorneys challenged the witness’ expertise, repeatedly interrupting his testimony with objections and, at one point, asking him if he has a degree in mechanical engineering. Brace replied that he has not.

The Professor

The Gore camp’s second and final witness was Nicolas Hengartner, a Yale statistics professor, who testified that vote tabulation error was to blame for the majority of the “undervotes” in the two counties.

The professor, citing the higher average percentages of “undervotes” in counties using punch-card ballots than in those using optical scanners, insisted there was no other plausible explanation for the disparity.

“If I look at demographics like racial profiles of the counties … then they can’t explain all thatdifference,” he said.

Moments after the Democratic team rested, the Bush team made a motion to dismiss the case altogether due to the “failure of plaintiffs to prove a prima facia case.” Sauls did not immedately rule on the motion.

Gore filed his contest case after Florida Secretary of State Katherine Harris, a Republican, certified the state’s vote for Bush last Sunday.

Harris’ attorney, Joseph Klock — fresh off his appearance before the U.S. Supreme Court on Friday — derided the Democrats’ case as a “voodoo presentation of experts” and an “election code omlette.”

Above all, the GOP side wants to stop any recount at all from going forward. But if the judge does order a new hand count, the Republican candidate’s lawyers argue that all 1.1 million votes from Palm Beach and Miami-Dade should be re-tallied, as well as an additional 1.2 million votes from Broward, Pinellas and Volusia counties, where the Bush team claims Gore may have picked up illegal votes.

“I do not believe … that there is any basis whatsoeverto have a pick-and-choose manual recount in the state of Florida in astatewide race,” said Klock.

The Counting Judge

The Bush campaign’s first witness was Judge Charles Burton, the Democratic chairman of the Palm Beach County Canvassing Board. Republicans argue the Palm Beach board acted properly when it rejected some 3,300 questionable ballots because it could not determine the voters’ intent. They also contend the Miami-Dade board had the authority to cancel its manual recount altogether because it could not meet a deadline for completion set by the Florida Supreme Court.

“The only issue [in] an election contest, when we have had a canvassing board that has taken action … is whether or not that board has abused its discretion,” Bush attorney Richard told the court. “And abuse of discretion is one of the highest standards known to the law.”

Also testifying on behalf of Bush was Richard Grossman, an expert on the properties of rubber and plastic. Saturday morning, Brace testified that the rubber strips used as backstops on punch-card ballot machines could harden over time, making it more difficult for voters to fully punch through their ballots. But Grossman said there would be “very little change over a number of years” in the types of rubber compounds used in the machines.

Saturday’s hearing got underway shortly after 9 a.m. ET and lasted approximately nine hours. Sauls had hoped the crucial proceedings could be completed in a single day, but ordered the hearing to reconvene at 9 a.m. ET today.

“I hope we’re going to proceed a little faster,” Sauls said at one point.

Earlier this week, the judge ordered election officials in both counties to pack up all 1.1 million of their ballots and a sampling of voting machines and transport them to his court in Tallahassee. The ballots are locked away in storage under armed guard, as Sauls considers Gore’s request for a recount.

Presidency in the Balance

The election is nearly a month old, but the question of which candidate will be inaugurated as the 43rd president of the United States is still very much in doubt. With the federal deadline for certifying electors only 10 days away, time is quickly running out on Gore’s legal challenge to the state’s certified election.

“Every hour makes a difference, every day makes a difference,” said Boies, following Saturday’s hearing in Tallahassee.

If Sauls were to rule in favor of the Gore this weekend, the manual recounts the vice president has requested could begin as early as Monday morning. No matter how Sauls rules, however, he will not have the last word on the recount controversy, as the losing side is all but certain to appeal the decision to the Florida Supreme Court. Plus, the U.S. Supreme Court still has yet to render its ruling.

On Friday, the nation’s highest court heard 90 minutes of arguments on the legality a Florida Supreme Court decision that allowed some of those hand counts. The justices’ comments did not suggest there was any consensus on the matter before them, and the court did not set a timetable for issuing a ruling.

The high court was, however, meeting behind closed doors Saturday in a rare weekend work session, as it considers possible intervention in the election dispute. The fastest the Supreme Court has ever ruled on a case is four days.

Legislative Intervention?

As an army of Republican and Democratic lawyers duel over recounts, the Republican-controlled Florida legislature is threatening to take action that could make all of the legal wrangling moot.

A special joint committee voted Thursday to recommend to the Legislature’s leadership that a special session be called to consider appointing a slate of presidential electors — most likely a slate that would be pledged to vote for Bush, given the GOP’s majorities in the state House and Senate.

House Speaker Tom Feeney says legislative intervention is necessary because it does not appear the legal wrangling will be completed in time for Florida to certify its electors before a Dec. 12 deadline for states to certify their presidential electors. Six days later, on Dec. 18, electors from each state will cast ballots for president as the Electoral College.

“While I would like to think the Court might provide guidance as to our constitutional rule in the near future,” Feeney said in a statement Friday, “it is difficult to predict either the timing or the ultimate result.”

Democrats from Florida state representatives to Gore’s running mate, Sen. Joseph Lieberman, have assailed the possible legislative action and would undoubtedly challenge any resolution naming electors in court.

Whichever candidate claims Florida’s 25 electoral votes will almost certainly become the next president. Including Florida, Bush has won states accounting for 271 electoral votes — one more than needed to win the White House.

The GOP nominee, meanwhile, was meeting with the Republican congressional leadership at his ranch in Crawford, Texas. In a photo-op with Senate Majority Trent Lott, House Speaker Dennis Hastert and his running mate, former Defense Secretary Dick Cheney, the Texas governor once again predicted victory.

“Dick and I felt like we’ve won the first three elections,” Bush said, referring to an initial machine recount and a subsequent round of partial recounts. “We’re confident that when it’s all said and done that he and I will be the president and the vice president — that’s why we’re having these meetings.

“I’m soon to be the president,” he added.

The Associated Press contributed to this report.