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Gore Confronts Tough Odds in Legal War and in Beating the Clock

Vote: Florida law gives judges power to upset an election or to order a revote. But the Dec. 12 deadline poses onerous limits.


Vice President Al Gore's attorneys face an uphill battle in their efforts to overturn the outcome of the Florida presidential election in the next front of the legal war they are about to launch.

In the abstract, the Florida law governing election challenges looks good for Gore. The statute gives judges broad power both to overturn an election and to order corrective measures, such as a revote.

However, practical realities--particularly a lack of time to complete complicated litigation and any remedial action--are working against the vice president, and the difficulties increase daily, legal observers say.

"The hard thing is getting everything done" by Dec. 12, the date that Florida must certify its presidential electors under federal law, said Stanford University law professor Pamela Karlan. "The logistics are very onerous, and the clock is running."

Gore's attorneys plan to ask a Florida judge Monday to appoint a special master to oversee any recount or other remedy--an attempt to speed up the process.

Overturned Votes Were Local Races

Like virtually everything else in this battle for the U.S. presidency, the case will be unprecedented. "We have never had a challenge to the certification of a statewide election result," said Orlando attorney David Cardwell, former director of the Florida Division of Elections.

Florida judges have overturned a number of elections, but all of them involved local races. The key standard is whether the ballots in dispute could affect the outcome of the election. Gore's attorneys are likely to argue that actions in Miami-Dade, Palm Beach, Nassau and perhaps Seminole counties all could have made a difference.

"I am very optimistic," said Gore campaign attorney Ron Klain. "It is a basic principle of Florida law that an election certificate is invalid if the candidate said to be the winner actually got fewer votes. We think we can prove that Al Gore got more votes than Texas Gov. George W. Bush and should be declared the winner in Florida."

But USC law professor Erwin Chemerinsky, a Gore supporter, said an example of the hurdles facing the vice president was apparent on Thanksgiving Day when the Florida Supreme Court rejected the Gore team's request to order the Miami-Dade election canvassing board to resume the recount it halted the previous day.

The three-member board said it could not complete a full recount by 5 p.m. EST today--the deadline set by the Supreme Court--and it rejected the option of hand counting 10,750 ballots that registered no vote for president when run through a counting machine.

Gore had picked up 157 votes when the board halted the hand count and certified its previous results based on a machine recount. So Gore got none of those additional votes. Democratic attorney Kendall Coffey said the canvassing board violated the spirit of Tuesday night's Florida Supreme Court ruling that permitted hand recounts to continue.

"They had an important duty in a time of crisis, and they walked off the job," Coffey said.

Gore's attorneys will again challenge the board's action Monday when they file their lawsuit in Tallahassee, Fla., contesting the results.

'Contest' Occurs After Certification

Up to now, the challenges have been raised under the "protest" provision of Florida election law. The new lawsuit will be brought under the "contest" provision, which comes into effect after results are formally certified by the secretary of state, which is expected to occur today.

Columbia University law professor Samuel Issacharoff said he doubted that Florida courts would require a recount. "The Florida Supreme Court has not wanted to get involved in the mechanics of counting the votes. They have not ordered the counties to do anything."

Gore's lawyers are expected to argue that the Miami-Dade board had no choice but to complete the recount. They point to a provision in state law that says counties "shall manually recount all ballots" if officials find "an error in the vote tabulation which could affect the outcome of the election."

Some legal experts said Gore's lawyers must clear at least two hurdles to obtain any further recount in Miami-Dade.

"They have to argue the recount is mandatory, not discretionary, and there's nothing in the Florida Supreme Court opinion to say that," Chemerinsky said.

Florida law gives the county election boards the power to count, and if necessary, recount votes.

Even if Gore's attorneys convince a judge that a recount is required under the law, they must also persuade the courts to extend the deadlines for tallying the votes. Chemerinsky says he sees nothing in the Florida Supreme Court ruling to encourage Gore's lawyers.

The state justices "were obviously troubled by the upcoming Dec. 12 deadline [for choosing electors]," Chemerinsky said. "Would they be willing to extend that deadline? Nothing in the opinion suggests a positive answer" for the Gore side.

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