A judge a day keeps defeat away

On Dec. 7, exactly one month after Election Day, workers outside the U.S. Capitol started erecting the stands for the inauguration of the 43rd president. But with at least five legal and political brushfires still burning, no one could say with certainty just who that president would be.

Dec. 7 brought 70 minutes of crucial arguments before the Florida Supreme Court. That court, made up of seven Democrats who had previously ruled in Al Gore's favor, was the vice president's last hope for getting the manual recounts he desperately needs in two Democrat-leaning counties.

Meanwhile, in two other Tallahassee courtrooms, Democrats were maneuvering to sweep Mr. Gore into office by sweeping thousands of Bush votes into the trashcan through long-shot lawsuits. At the state Capitol, the Republican-controlled legislature was preparing for a special session to name its own slate of electors during the week of Dec. 10. And in Washington, the U.S. Supreme Court hovered in the background, having already served notice that it was keeping a wary eye on the Tallahassee tangle.

But if it ended up as a legal logjam, the week started out as a legal and political trainwreck for the vice president. His first blow came in the U.S. Supreme Court, where the justices unanimously vacated a Florida decision extending the certification deadline in that state. The nine federal justices slapped the hands of the Florida Supremes, essentially telling them that their previous judgment in Mr. Gore's favor was incoherent, and insisting that the Florida court reconsider its reasoning and show why the judicially imposed deadline was not a usurpation of legislative power.

That represented a win for Mr. Bush, albeit a narrow one. Without overturning the Florida decision, it cast doubt on the hand count that had narrowed the Bush lead from 930 to 537, and it served notice that the justices would be carefully watching Florida's high court as it ruled in future election battles. Questioning by that court's justices during the dramatic 70 minutes on Dec. 7 showed the Floridians' concern. Florida Chief Justice Charles Wells six times essentially asked lawyers for both sides how his court could avoid stepping on the toes of the U.S. Supreme Court and the state legislature.

The U.S. Supreme Court's decision to vacate the Florida verdict also effectively re-set the vote tally at its Nov. 14 level. That decision provided cover for Florida legislative leaders who announced last week that the legislature would name a slate of electors based on George W. Bush's win at the original, statutory deadline-as well as his win in all other counts and recounts.

The U.S. court's decision was limited, however. Despite their misgivings as to the decision in Florida, the federal Supremes made it clear that they were not prepared to rule on the merits of the case. Just a few hours later, however, in a Tallahassee courtroom, Judge N. Sanders Sauls did rule on merits-and he made it plain that he saw almost no merit whatsoever in the vice president's arguments.

The decision was "a slam dunk for the other side," grumbled a Gore lawyer. "This was as complete a victory as I've ever gotten in a trial," said an incredulous Philip Beck, one of the Bush lawyers. (The two sides combined crammed some 40 lawyers into the small courtroom.) Even Katherine Harris, the secretary of state under Democratic fire for sticking to the statutory deadline for certifying the Florida vote, earned a "complete vindication" in the ruling, according to her attorney, a Democrat.

After a two-day marathon in which the two sides bickered for as much as 13 hours at a stretch, a bleary-eyed Judge Sauls swept aside the Gore arguments one by one. First, the judge made it clear that Democrats were trying to set the bar too low in asking the court to overturn a certified election because of a mere "reasonable possibility" of an incorrect count. Rather, he said, the courts could not interfere in the electoral process unless there were a reasonable probability of a miscount that put the wrong candidate into office.

"In this case, there is no credible statistical evidence and no other competent substantial evidence to establish by a preponderance a reasonable probability that the results of the statewide election ... would be different from the result which has been certified," Judge Sauls noted-and David Boies, the Democrats' lead counsel, didn't need to hear any more. Assuming defeat, he picked up his pen and started making notes for an appeal.

But Judge Sauls had much more to get off his chest.

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.

Both sides now say such tampering was improper, no matter how well-intentioned. But Republicans on Dec. 6 argued before Judge Nikki Clark that the missing registration numbers were a technicality that should not disenfranchise voters-almost the same reasoning that Al Gore used before the state Supreme Court to win an extension of the certification deadline last month. ("Almost the same reasoning" because addition of voter registration numbers is, strictly speaking, clerical in nature and does not amount to voter error.) To complete the reversal from an "every vote should count" standard, Democrats argued that because there was no way to determine which votes resulted from improper applications, all the absentee ballots should be discarded-15,000 in Seminole County and an additional 10,000 in Martin. Because Mr. Bush won by large margins in both counties, throwing out those votes would be enough to tilt the election to Mr. Gore.

But such a ruling would likely fall faster than a well-trained lawyer could say, "federal voting rights act." Landmark Legal Foundation president Mark Levin pointed out on National Review Online last week that federal law-42 U.S.C. Sec. 1971-does not tolerate disenfranchising voters in such a fashion: "... No person acting under color of law shall ... deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under state law to vote in such election...."

Though the vice president was not technically a party to the Seminole and Martin County suits, he plainly was following them carefully. Speaking to reporters outside the White House after the crushing ruling by Judge Sauls, he spoke approvingly of the effort in Seminole County. "More than enough votes were potentially taken away from Democrats, because they were not given the same access that Republicans were.... Now that doesn't seem fair to me." The Democratic accusation in Seminole County did not provide any evidence of Democratic disenfranchisement in the county, but perhaps Mr. Gore, after his defeats, could be allowed one more leap of fiction.

How many more days would American patience allow him? Significantly, with the third-party cases still pending, he refused to say that the Florida Supreme Court would be his final stop. "When the issues that are now being considered in the Florida Supreme Court are decided, that'll be an important point," he said-notably declining to call it the endpoint of his legal battle.

So, by Dec. 7, no one could say just where the endpoint might be for the vice president. But time clearly was not on his side. With Florida's electors due to be named on Dec. 12, he was quickly running out of legal options-and political capital.