Until the Supreme Court of the United States intervened by a 5-4 vote, the more than 40,000 statewide "undervotes" in the presidential election were being hand-counted under the orders of a 4-3 majority of the Florida Supreme Court.
The decision of the Florida Supreme Court to review the undervotes – ballots on which machines detected no vote for president – was influenced heavily by an order of the U.S. Supreme Court that set aside and asked for clarification of a Nov. 21 ruling by the Florida Supreme Court that had ordered hand recounts in three counties.
The high court ruled that the state court could not controvert the U.S. Constitution, which assigns responsibility for the method of choosing electors to the state legislature; therefore, the Florida Supreme Court could not refer to the Florida Constitution as a source of authority. Any decision the state justices made had to refer to the Florida election code, as it existed on Election Day this year.
Both sides of the Florida court shaped their rhetoric in Friday's decision in ways designed to discourage or attract the involvement of the U.S. Supreme Court in the case.
The majority used the word "legislature" more than 30 times in its decision.
"Although courts are, and should be, reluctant to interject themselves in essentially political controversies, the Legislature has directed in section 102.168 that an election contest shall be resolved in a judicial forum," it said. "These statutes established by the Legislature govern our decision today. ... The purpose of the statute is to give effect to the legislative directions ensuring that the right to vote will not be frustrated."
The majority overruled the decision of Leon County Circuit Judge N. Sanders Sauls, an old foe of the Florida Supreme Court, stating that he had not met the standard of state law: that courts in election contests should "ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong."
Sauls failed this standard when he refused to examine any of the disputed ballots, according to the court majority, and erred in demanding Gore's side establish a "reasonable probability" that the election results would have been different rather than the newer standard that the disputed ballots be "sufficient to change or place in doubt the result of an election."
Actually, two of the three dissidents from the majority also noted errors in Judge Sauls' decision, but did not think that the errors justified overturning it.
When the U.S. Supreme Court asked the Florida Court to clarify its Nov. 21 decision, it wanted to know if the Florida court was aware of Section 5 of Title 3 of the United States Code, which assures that states that resolve their disputes six days before the electors vote on Dec. 18 have "conclusive" choices. The majority ruling made clear that it was taking notice of the deadline.
Not surprisingly, the strong dissent by Florida Chief Justice Charles Wells drew praise from Bush spokesman Jim Baker, who quoted the following passage from it:
"I believe that the majority's decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution. ... [T]he majority's decision to return this case to the circuit court for a count of the undervotes from either Miami-Dade County or all counties has no foundation in the law of Florida as it existed on Nov. 7, 2000, or at any time until the issuance of this opinion. ... [T]he prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this court as an institution."
Baker promised appeals to two federal courts, the 11th U.S. Circuit Court of Appeals in Atlanta and the U.S. Supreme Court. The 11th Circuit refused to issue a "stay" order, but the 5-4 conservative majority of the Supreme Court did so, setting hearings for Monday.
William Daley, chairman of the Gore campaign, had simply called for the counting of votes to be carried out without further legal action.
Why were the Bush people so concerned to stop the recount?
There have been numerous analyses of what a recount would produce. The most publicized, the precinct-by-precinct analysis of Stephen Doig for The Miami Herald of the 185,000 uncounted votes, showed Gore winning by more than 23,000 votes. But it is useless for any but Democratic polemical purposes. It included both "undervotes" (votes which for one reason or another registered no choice for president on the machines) and "overvotes" (when people cast two or more votes for president).
Analysis strongly suggests more people in Florida wanted to vote for Gore than for Bush. The question is did they do so in a legal manner? And this is where real disagreements begin.
According to Jacob Weisberg of Slate, about two-thirds of the uncounted votes were "overvotes." Overvotes can't be counted, and won't be. According to Weisberg, these represented some two-thirds of the 185,000 uncounted ballots. That leaves some 60,000 undervotes, of which many (including all those in Palm Beach, Volusia and Broward counties) have already been added to the state tally by the court's decision. Then you must focus on the remaining undervotes, which may or may not contain a legally valid vote for president.
Apparently, because the court was unwilling to "legislate" beyond what the state legislature said, the failure of the Florida Legislature to set any standards for recounts is now the main reason being used to justify the legislature's intervention in the process.
The state Supreme Court ordered the so-called undervotes to be counted by hand, using the standard that "is the one to be provided by the legislature," which requires the ballot to show "a clear intent of the voter." But because each county has its own standard as to what that means, it is likely of little help it determining what a vote is.
The Florida court found that Judge Sauls was wrong in not adding back the margins of 215 Palm Beach County votes for Gore and the 168 votes from the Miami-Dade partial recount. That reduced Bush's lead to just 154 votes.
However, the court refused Gore's request that the Palm Beach ballots be recounted using the more permissive standards of Broward. That was a heavy defeat for Gore, costing him a few hundred votes.
Weisberg pointed out that in Broward, which included "dimples," they "recovered approximately 1,721 of the 3,175 undervotes that weren't non-votes, or 54 percent." But Palm Beach, which ignored "dimpled chad," "recovered only 974 of 7,823 potentially readable undervotes, or 12.5 percent."
Weisberg estimated a Gore victory of 409 if the Broward standard was used, but a Bush victory of 642 if it wasn't. However, he noted that Republican election officials in heavily Republican areas might well benefit Bush by counting "dimples."
The New York Times and the Washington Post also attempted analyses of the likely results. The Times, the Post, and Slate all noted that Democratic counties are far more likely to have undervotes than Republican counties.
Much of this was because the "error rate" varied between two types of machines – 1 in 65 in the punch card counties, but 1 in 300 in optical scanner counties.
And within counties with the same voting system, Democrats, particularly black voters, were more likely to make errors than were Republican voters.
As the Post put it: "An examination at the precinct level indicates Gore may come out ahead because Democrats statistically are more likely to have mismarked ballots than Republicans."
The Times was somewhat less sanguine about Gore's chances. Everyone agreed, however, that a full recount would still produce a result that showed one candidate or the other ahead by only a few hundred votes.
Could the process be completed in time? The number of undervote ballots to be counted was said to be around 43,000. Leon County Circuit Judge Terry Lewis set a deadline of 2 p.m. Sunday for completion of the count. There seemed to be little doubt that this goal could have been met.
But now it is all moot again. The Supreme Court sent a signal that it may shut down the count on an ideological 5-4 vote. If the count is stopped, Bush wins. If the court just spends a day or two on its decision, the Florida Legislature has sent a signal that it will step in and choose electors. If the count proceeds and Bush is ahead at its end, the contest is over.
The only way that Gore has a chance at all would be if he could win a recount – but the 5-person majority of the Supreme Court has now done its best to ensure that there is no time for such a recount. In doing so, it supported the Bush strategy.
If, somehow, a recount was made and Gore was ahead, the Bush forces have made it clear that it would be just the beginning of a long legal and political struggle. In that case, the final decision in this race could still be weeks away, in the new year, with inauguration of the new administration looming Jan. 20.
Copyright 2000 by United Press International. All rights reserved.
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