Presidential Election Trials: 2000

Monday, December 4

In Washington, D.C., the U.S. Supreme Court issued a unanimous sixpage ruling. It told the Florida Supreme Court to clarify its November 21st ruling that allowed recounts to continue beyond the deadline set by statute. Technically, the U.S. justices "vacated" the Florida court's decision.

In Tallahassee several hours later, Judge Sauls read his ruling aloud. It dismissed every legal argument the Gore lawyers had offered. Mr. Gore had not proved, said the judge, a "reasonable probability" that the election would have turned out differently had there been no problems counting ballots. Furthermore, he said, to contest the election properly, every ballot in Florida—not just in the three counties under dispute—would have to be counted.

Thursday, December 7

While the judge was still speaking, Gore lawyers had filed an appeal to the Florida Supreme Court. As attorney Boies opened for plaintiff Gore, Chief Justice Charles T. Wells asked, "Why is not judicial review given to the circuit court and not this court?" The justice explained that state law gave the hearing of contests of elections to the circuit court and did not say they could be appealed. Boies contended that the case could be appealed like any other because the U.S. Constitution authorized the legislature to enact basic laws but not to act as a judicial body.

Justice Leander J. Shaw, Jr., questioned how this court could overrule Judge Sauls's findings of fact. Boies responded that Judge Sauls had refused to look at important evidence: the 14,000 punch-card ballots, rejected by tabulating machines that might change the election outcome if manually counted. Three justices—Major B. Harding, R. Fred Lewis, and Peggy A. Quince—asked why the Democrats wanted to count manually in only Palm Beach and Miami-Dade counties rather than everywhere. The losing candidate, said Boies, had the right to choose where to contest the vote, and, indeed, the Bush side had rejected the chance for a statewide manual recount.

As Bush lawyer Barry Richard addressed the court, Justice Harry Lee Anstead asked, "Isn't it highly unusual for a trial court to admit into evidence certain documents that one party claims will be controlling and yet never examine those documents before making their decision?" Justice Barbara J. Pariente added that the state election law requires the circuit court "to do whatever is necessary to ensure that each allegation in the complaint is investigated, examined, or checked." What does that mean, she asked, if it doesn't mean counting disputed ballots?

Richard responded that the plaintiffs had not established "an abuse of discretion by any of the challenged canvassing boards" even though counting is at the discretion of election boards.

Justice Quince questioned Judge Sauls's test that Gore had to show a "reasonable probability" of a recount making a change in the election outcome. "Where in the statute is that standard," demanded the justice, "that you have to show that a mistake was made through no fault of the voter?" She added that she was "really having a problem" with the Sauls probability standard.