Squeeze play: Gore team has less legal room to maneuver

In what could be final word, Florida high court options include a recount of all disputed ballots.

It all comes down to dimples.

With time running out and most other legal avenues blocked or exhausted, Vice President Al Gore's best shot at becoming president of the United States rests on a litigation strategy that seeks to force the counting of dimpled chads as valid votes.

To win, Mr. Gore's lawyers must convince a majority of the seven justices of the Florida Supreme Court that the true intent and will of Florida voters will be irreparably thwarted, unless the court orders the visual examination of ballots that have so far only been counted by machines.

On Nov. 21, the Florida justices issued a unanimous ruling in which they stated: "We consistently have adhered to the principle that the will of the people is the paramount consideration. Our goal today remains the same as it was a quarter-century ago, i.e., to reach the result that reflects the will of the voters, whatever that might be."

Given that statement, Gore's lawyers would seem to enjoy a substantial advantage over the legal forces of George W. Bush, who is seeking to maintain a slim margin of votes in Florida.

But it isn't as simple as it might appear. On Monday, the US Supreme Court set aside the Florida Supreme Court's Nov. 21 ruling, which established a legal framework to count dimpled ballots.

Also on Monday, a state court judge in Tallahassee threw out in its entirety Gore's challenge to the election outcome in Florida. Judge N. Sanders Sauls' extensive findings and conclusions of law make it extremely difficult for the Florida Supreme Court to overturn him.

"I would not characterize them as being between a rock and a hard place, but I think the room for maneuvering is very, very little," says Viet Dinh, a professor at the Georgetown University Law Center in Washington.

Moreover, in setting aside the Nov. 21 ruling, the US Supreme Court essentially threw down a gauntlet, demanding that, if the Florida justices wished to rely on their earlier ruling justifying the counting of dimpled ballots, they must first clearly explain whether their order might violate certain principles mandated in federal law and the US Constitution.

The two actions - the Sauls ruling and the US Supreme Court remand - substantially limit the ability of the Florida Supreme Court to fashion a legal remedy that might change the outcome of the election in Gore's favor.

"The Florida justices went out a good distance on a limb for the vice president, and they now have two entities suggesting that being that far out on a limb is a problem - the US Supreme Court from above and the trial court from below," says Douglas Kmiec, a law professor at Pepperdine University in Malibu, Calif. "I think they are going to be more careful this time around.... They are going to be much closer to the trunk of the tree than the end of the branch."

That's not good news for Gore.

Some legal analysts say one way the Florida justices might be able to justify the manual recount of an expected gold mine of Democratic ballots in Miami-Dade

County is by ordering a manual recount of votes throughout Florida.

Judge Sauls ruled that selective recounts in only certain counties would violate state law. And Bush lawyers are challenging in federal appeals court in Atlanta selective recounts as a violation of constitutional principles of equal protection.

While there isn't enough time to conduct a hand recount of all 6 million votes, some analysts say there is time enough to count the 180,000 undervotes and overvotes. If it was done on a statewide basis, it might ease equal-protection concerns, but the justices would still face legal challenges from Bush lawyers over whether dimpled chads were recognized as valid votes under Florida law prior to the Nov. 7 election.

If they weren't, the case might end up at the US Supreme Court once again, with the justices forced to issue a more definitive ruling.

Florida state law grants judges broad authority to identify and remedy alleged election wrongs. So, if the Florida court believes that dimpled ballots are valid votes, under established Florida law - and that the wrong person might win the election unless those votes are counted - the law gives them the power to count them. But they can't just order it done. They have to justify their action in a way that does not violate federal law or the US Constitution.

"The Florida Supreme Court is on solid ground, so long as it is clear that it is interpreting state statutes and not disregarding them," says Barry Friedman of New York University School of Law.

There is one other way that Gore might win the election through court action. Two state judges in Tallahassee are conducting trials today over whether thousands of Republican votes should be thrown out in Seminole and Martin Counties because of irregularities in the absentee-ballot application process. Most legal analysts say it would be unusual for a state judge to throw out valid votes because of questions about ballot-application paperwork, particularly when that action would change the outcome of a presidential election.

(c) Copyright 2000. The Christian Science Publishing Society

of 5 stories this month > Get unlimited stories
You've read 5 of 5 free stories

Only $1 for your first month.

Get unlimited Monitor journalism.