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A Different Florida Vote--in Hindsight

Gore, Bush teams made quick decisions in critical moments in the recount battle. One or two changes and the vice president might have won it all.


On the ground, moves by Harris and others slowed the recounts. The Florida secretary of state warned county officials that she intended to enforce tally deadlines strictly. She cast doubt on the legality of what they were doing.

The result was a series of temporary halts and delays. Mitchell W. Berger, a prominent Florida lawyer helping the Democrats, attributes 11 days of delay to Harris and four more to a U.S. Supreme Court stay issued before its final opinion. "I don't know what we could have done to avoid those 15 days."

Nor were GOP lawyers sitting on their hands. "They had paid lawyers all over the place," Koch says. "They were aggressive, in people's faces. They slowed the process down, which is what they wanted. It's the classic football metaphor: They had the ball, time was running out and all they had to do was sit on the ball."

The result, especially in Palm Beach and Miami-Dade counties, was that the recounts were ominously slow to deliver the cascade of new Gore votes that Democrats were counting on.

Worse yet, before the week was out, evidence began to emerge that suggested Gore strategists might have missed a potential treasure trove in a fifth county. Heavily Republican Duval had gone for Bush overwhelmingly--in part because Jacksonville's large African American population had failed to deliver in the expected numbers for Gore.

Why? Again, voter confusion over ballot design seems to have played a role. Thousands of people in black precincts marked their ballots twice for Gore; these so-called overvotes are considered illegal and must be discarded.

In addition, evidence emerged of thousands more undervotes that could be legal ballots if the voters' intent could be determined.

Gore strategists' failure to include Duval on the short list where recounts would be sought apparently occurred because critical information came too late.

"We knew about the Duval overvotes" before the Thursday night deadline for seeking recounts, Herron says. "The problem is an overvote is an illegal vote. . . . A manual recount isn't going to get you those votes. At the time we were focusing on this issue, we didn't have the information we needed [on the undervotes]."

But the possibilities were tantalizing even on the overvotes. Herron says the Democrats learned only too late that many of the discarded ballots were ones on which a voter selected Gore and also penciled in the vice president's name on the write-in line. These were ballots that a hand recount might have allowed.

Gore's hard-pressed agents, however, did not sit down with Democrats in Jacksonville until after the deadline had passed.

On Nov. 15, the politics gods made a decision of their own: to play a little joke on Gore.

On that day, Harris went into court in Leon County with two requests. The first was for the Florida Supreme Court to halt all manual recounts. Gore's lawyers opposed it and won.

The second request, contained in a 12-page document that was all but lost in the avalanche of paper landing on court clerks each day, seems to have gotten little attention from anyone--except Bush aides in Texas.

The document asked that the high court consolidate the myriad suits being filed all over the state and manage them directly. At that point, more than a dozen lawsuits had been filed in South Florida, most in Palm Beach County. Voters were protesting the butterfly ballot, and Democrats were attempting to secure a looser standard for weighing whether a ballot contained a valid vote.

Harris, says one attorney, "sensed a train wreck. She thought the litigation was going to spin out of control." The different standards being used in South Florida to decide whether a disputed ballot should count might yield a large number of new votes for Gore.

In effect, Harris asked the Florida Supreme Court to act as a trial court and assume jurisdiction over all the lawsuits, taking them away from the circuit court judges.

Bush's camp had not been warned of the move. "[They] were just livid about it," says Donna E. Blanton, a Tallahassee attorney who represented Harris and state election officials.

The Bush camp had become terrified of the state Supreme Court, whose seven justices all had been appointed by Democratic governors.

GOP feelings about the court "evolved from believing that we probably had an uphill struggle against the political background of those judges to knowing that we didn't have a prayer," says George J. Terwilliger III, a deputy attorney general in the George Bush administration and an advisor to George W. Bush's campaign.

The Republicans feared Harris' proposal could kick the recount process into overdrive--exactly what they did not want.

"The Florida Supreme Court would have said, 'You can have a statewide recount.' And they would have said it a lot earlier," says Jonathan E. Sjostrom, another Tallahassee lawyer who represented Harris and other Florida election officials.

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