Florida Judge Weighs 'Great Burden' in Gore Recount Case

By Scott Hogenson | July 7, 2008 | 8:27 PM EDT

(CNSNews.com) - A circuit court judge in Florida is deliberating what one attorney called "the great burden" of deciding whether Vice President Al Gore should be granted the chance to conduct another count of ballots in three Florida counties after a13-and-a-half hour hearing Sunday.

Leon County Circuit Court Judge N. Sanders Sauls is expected to rule between noon and 2 p.m. Monday, and told both sides that the case had been well tried by the lawyers. Regardless of his decision, the case is almost certain to be appealed.

The marathon session, which began a few minutes after 9:00 a.m. EST Sunday, stretched deep into night, with lawyers offering closing arguments until 10:40 p.m. in a case that holds the potential to determine the 43rd president of the United States.

The election results certified on November 26, in accordance with an earlier decision by the Florida Supreme Court, showed George W. Bush winning the state and its 25 electoral votes, enough to give him the presidency.

At issue in the Gore campaign's contest is the results of ballot counts in Nassau, Palm Beach and Miami-Dade Counties, and the vice president wants Sauls to order the inspection of roughly 14,000 ballots from those areas.

In Nassau County, a mandatory recount yielded 218 fewer total votes than the initial tally, and local election officials eventually submitted the first count to the secretary of state.

Palm Beach County officials were unable to complete a hand recount of ballots in time to meet the deadline, resulting in the ultimate inclusion of the vote count from an earlier tabulation.

A planned recount in Miami-Dade County was suspended after local election officials determined it was impossible to conduct a full recount in time to make the November 26 deadline. That decision excluded the hand count of about 9,000 ballots that had been considered 'non-votes' by the automated tabulating equipment there.

After a day filled with Republican witnesses and citizens testifying on how the selected recounts may dilute their own votes, lawyers for Gore and Bush launched into nearly four hours of closing arguments that ranged from highly technical legal analysis to allegations of "guerilla warfare," against the Gore campaign.

A central argument for the Gore campaign, according to lead counsel David Boies, is that their contest to overturn the election results is based on the inclusion of illegal ballots in a vote tally or the exclusion of legal votes.

Boies argued that the estimated 14,000 ballots the vice president wants included in the final tally are legal, should be counted again, and would give the presidency to Gore.

Lawyers for Bush said the Gore team failed to prove that point, but Boies countered by saying "there is a lot of evidence... of the existence of votes that are created and can be discerned to reflect the intent of the voter," pointing to questions about the use of punch card ballots and the machines that count them to support his point.

The only way to count those votes properly, Boies argued, was to have the ballots examined by hand. But Bush attorney Barry Richard counted by arguing that "there is no right to a manual recount."

The question in Miami-Dade is whether election officials there should be compelled to conduct a full recount after having re-checked a small sample of ballots from select precincts in the county, and the Gore camp made an issue of the Miami-Dade canvassing board's on again-off again recount.

Bush lawyers attempted to portray that argument as a non-starter for the Gore campaign.

"The Gore camp loses either way," claimed Richard. "If the rule of law is that the board, having made a decision, cannot change it, then its first decision holds and there should never been any recount. On the other hand, if the law says the has board the discretion to change its mind, then it had the discretion to do it."

None of the witnesses directly attacked the honesty of local officials in the handling of ballots in Miami-Dade, although questions about ballot manipulation were raised, including testimony about entire trays of ballots being spilled during earlier recounts.

But Boise knocked down even the suggestion of impropriety, saying there was no evidence of what he called "ballot contamination."

"If you listen even to the Republican observers from Miami-Dade, I think the court got the sense of citizen officials trying their best to deal with a difficult situation - making every effort to get it right, keeping close control," said Boies.

Boies also dismissed the claims of citizens who testified that their right to vote was compromised by projections that Gore would win the state even before polls had closed in parts of the Florida Panhandle which lie in the Central Time Zone, one-hour behind the rest of the state.

"Whatever effect that had is not relevant to a contest action," said Boies, who argued that the underlying question was "whether there have been legal votes rejected or whether there have been illegal votes received."

Joe Klock, attorney for the Florida secretary of state, called the Gore legal team's arguments "an extremely cynical approach," and accused the vice president's lawyers of mounting "guerilla warfare," in picking and choosing predominantly Democratic counties in which to raise challenges.

Both Klock and Jerry Madigan, a lawyer for a Collier County voter who testified he was uncertain whether his vote had been properly counted, suggested that if further hand counts are ordered in three counties chosen by Gore, then a manual count of the ballots in Florida's 64 other counties should also be conducted so as to not slight voters elsewhere in the state.

"We have a situation where Mr. Gore has taken selective advantage of the law of the sate of Florida that allows him to disenfranchise the vast majority of our citizens," said Madigan. "He has chosen to cherry pick three counties he knows will go for him."