The nation’s historic presidential contest yesterday took another legal twist when the U.S. Supreme Court issued its much-awaited opinion. The court set aside a Florida Supreme Court ruling that extended the deadline for hand-counted Florida ballots that Democrat Al Gore needs to win the White House. But the case, which is vital to the vice president’s future, was kept alive when it was sent back to Florida’s highest court. [includes rush transcript]
The initial Florida Supreme Court ruling, opposed by Bush and supported by Gore, had extended the deadline by 12 days until Nov. 26 for certifying the election results so hand-counted votes could be included in the final tally.
Essentially, the Supreme Court is asking Florida’s highest court to justify its intervention in changing the certification date, and explain whether it used the Constitution or Florida law as a basis for its decision.
Meanwhile, State Judge Sanders Sauls delivered what many saw as a devastating blow to Gore’s protracted struggle to overtake Bush’s margin of just a few hundred votes in Florida yesterday when he denied the Democrats’ bid to have some 14,000 disputed ballots reviewed by hand.
- David Cole, Professor of Constitutional Law at Georgetown University and legal affairs correspondent for The Nation magazine.
- Judge Sanders Sauls, Leon County judge, issuing his ruling in Tallahassee.
AMY GOODMAN: Four weeks after the U.S. presidential election, Democrat Al Gore’s legal quest to wrest the pivotal state of Florida from Republican George W. Bush is back before the state Supreme Court, where the White House race may ultimately be decided.
Yesterday, the Vice President suffered a potentially devastating blow when Leon County Circuit Count Judge N. Sanders Sauls rejected his request to have 14,000 disputed ballots from two heavily Democratic Florida counties recounted by hand. The Vice President’s legal team claimed those ballots included enough votes for Gore, who won the popular vote nationally, to swing the Florida election his way. Sauls disagreed, saying there’s no credible statistical evidence to support that claim. Here is an excerpt of his decision.
N. SANDERS SAULS: It is well established that in order to contest election results under Section 102.168 of the Florida statutes, the plaintiff must show that but for the irregularity or inaccuracy claimed, the result of the election would have been different and he or she would have been the winner. It is not enough to show a reasonable possibility that election results could have been altered by such irregularities or inaccuracies. Rather, a reasonable probability that the results of the election would have been changed must be shown.
In this case, there is no credible statistical evidence and no other competent substantial evidence to establish by a preponderance a reasonable probability that the results of the statewide election in the state of Florida would be different from the result, which has been certified by the State Elections Canvassing Commission. The Court further finds and concludes the evidence does not establish any illegality, dishonesty, gross negligence, improper influence, coercion or fraud in the balloting and counting processes.
Secondly, there is no authority under Florida law for certification of an incomplete manual recount of a portion of or less than all ballots from any county by the State Elections Canvassing Commission, nor authority to include any returns submitted past the deadline established by the Florida Supreme Court in this election.
Thirdly, although the record shows voter error and/or less-than-total accuracy in regard to the punch-card voting devices utilized in Dade and Palm Beach Counties, which these counties have been aware of for many years, these balloting and counting problems cannot support or affect any recounting necessity with respect to Dade County, absent the establishment of a reasonable probability that the statewide election result would be different, which has not been established in this case.
The Court further finds the Dade board of — Canvassing Board did not abuse its discretion in any of its decisions in its review and recounting processes.
AMY GOODMAN: Leon County Circuit Court Judge N. Sanders Sauls rejecting Al Gore’s request to have 14,000 disputed ballots from two heavily Democratic Florida counties recounted by hand. Gore’s lawyers immediately appealed to Florida’s Supreme Court.
Just hours before this decision was issued, the US Supreme Court set aside a Florida Supreme Court ruling that extended the deadline for hand-counted Florida ballots that Gore needs to win the White House, but the case, which is vital to the president’s future, was kept alive when it was sent back to Florida’s highest court. The initial Florida Supreme Court ruling, opposed by Bush and supported by Gore, had extended the deadline by twelve days, until November 26, for certifying the election results so hand-counted votes could be included in the final tally. Essentially the Supreme Court is asking Florida’s highest court to justify its intervention in changing the certification date and explain whether it used the Constitution or Florida law as a basis for its decision.
We turn now to David Cole, professor of constitutional law at Georgetown University and legal affairs correspondent for The Nation magazine. David Cole, can you explain these two decisions?
DAVID COLE: Well, the big one was actually from the smaller court. The court in Tallahassee has really set a major blow to the Gore chances, because here you have a trial court who held a two-day — extraordinary two-day trial. It went into 11:00 at night on Sunday night and issued a decision, which rejects every position that the Gore side advanced and does it in large part on the basis of factual findings that are going to be very hard to reverse on appeal.
In light of that decision, the Supreme Court’s decision earlier yesterday really pales in significance. Both of them lead inexorably back to the Florida Supreme Court. That is, the Florida Supreme Court has the authority to review Judge Sauls’s decision. And my understanding is that they — the Gore team has sought an expedited appeal of that. And the Florida Supreme Court has to issue some clarification of its earlier decision in response to the United States Supreme Court. So everything will be focused on the Florida Supreme Court at this point.
AMY GOODMAN: One of the issues that we have been focusing on since Election Day are all of the people whose votes were not counted. And we particularly have looked at communities of color: African American, Latino votes. We understand that possibly there’ll be a Voting Rights Act lawsuit that would be filed by the NAACP. But where does this fit in, the tens of thousands of ballots that were invalidated?
DAVID COLE: Well, that’s the real problem here, is — which is that we’ve never — you know, the Bush people say we’ve had a count and a recount and a recount and a recount, but in fact, we have never had a full count. And all the Gore people have been asking for is a full count of the disputed ballots, which were not — which did not register a vote through the machines in Miami-Dade and Palm Beach. That’s essentially what they’re asking for.
And what Judge Sauls did was say, "I’m not even going to look at those ballots. You have to prove, first of all, that you would win without my looking at the ballots," when the claim was essentially because those ballots were not looked at, legal votes were rejected, a full count has not been done. And if there were a full count, we would be the likely winner. And I think everybody — in reality, everybody understands — that is, everybody involved in this legal process understands that if there were a full count, Gore would win. That’s why the Bush people have fought so hard against a count.
But 'til now, we have not been able to get a count. They couldn't get a count by — before — you know, despite the extended certification. And they couldn’t get a count in the contest proceeding. And that means a lot of people’s votes are not counted. The evidence is that minorities more than others, disproportionately, but a lot of people’s votes have not been counted. And I think if — you know, it is fair to presume that if a full count were done, Gore would be the winner.
AMY GOODMAN: I don’t understand. If Judge Sauls is saying you have to prove that you would win before I would say you can count all the ballots, how do you prove it if you don’t count all the ballots?
DAVID COLE: Well, that’s the problem. And what he held them to was that they had to make a showing of a reasonable probability that a recount would lead to a Gore win. And they showed — what they did was they extrapolated from the recounts that had taken place and from the vote — you know, the voting patterns in the votes that were counted in Miami-Dade and Palm Beach. And they said look, if you just extrapolate from these partial recounts and if you extrapolate from the vote breakdowns in the ballots that were counted, it’s quite clear that in 10,000 votes, there’s going to be a significant gain for Al Gore. And he simply rejected that out of hand and refused therefore to look at whether, in fact, there would be such a gain in the 10,000 votes.
I think the legal standard that — as far as I understand it, the legal standard is did — can the challenger, in this case Al Gore, show that the result might have been different because either illegal votes were counted or legal votes were rejected. And the claim was essentially that legal votes were rejected and the outcome would have been different. I think they made that showing. Judge Sauls, however, found to the contrary. And the problem is that that may well be a factual finding that’s going to be very difficult to overturn at the appellate level.
AMY GOODMAN: Finally, David Cole, we usually turn to you on cases where the state has overextended its authority — police surveillance, issues like that. And I’m wondering what any of that has to do with these elections?
DAVID COLE: Oh, I’m not sure what any of that has to do with these elections. I mean, my sense is, you know, this election and this election dispute will decide whether Al Gore or George W. Bush is our next president. And in some respects, in terms of government overreaching, that will make little difference. I mean, my experience has been that the federal government under Clinton has been — in terms of government overreaching in law enforcement and immigration and areas like that — has been as bad under Clinton as it was under the elder Bush and Reagan.
On the other hand, I do think that probably the most significant impact that the next president will have is likely to be on the Supreme Court. And that’s an entity which has the capacity to put some checks on law enforcement, to put some checks on state overreaching, and indeed federal overreaching. And the reality is that if George Bush is elected, he’s going to get to make probably two appointment — at least one, maybe two appointments to the court during his tenure. And that will cement a conservative majority on the court that will greatly weaken the rights of minorities and the rights of the disempowered for generations to come.
AMY GOODMAN: David Cole, I want to thank you for being with us, professor of constitutional law at Georgetown University and legal affairs correspondent for The Nation magazine.
DAVID COLE: Thanks a lot.