The World Turned Upside Down

Every time Al Gore has been one judicial decision away from complete and utter defeat, every time we pundits have declared him to be "on the ropes" or "down for the count" or any other bad sports analogy we can think of, every time the Republicans start to count their chickens... the fatal blow never comes and Gore stays alive and kicking.

Right now, after again getting down to his last stand, Gore is more than alive and kicking. He is poised to overtake George W. Bush in the vote total in Florida for the first time since early election night. The Florida Supreme Court saw to that Friday afternoon when it ruled by a 4-3 margin that Gore was entitled to an additional 383 votes and, more importantly, a manual recount of tens of thousands of "undervote" ballots from Miami-Dade and other counties.

The decision was as stunning as it was significant. The court charted a course through the only narrow openings given to them by Circuit Court Judge N. Sanders Sauls and in doing so almost instantaneously put Bush on the legal defensive, a place he really hasn't been for weeks. Now it is Bush who is appealing to higher courts. Now it is Bush asking for injunctions and stays. Now it is Gore who seeks to defend the judicial status quo against all comers. In the span of a few minutes Friday, the whole world turned upside down.

The majority found that Sauls erred as a matter of law when he refused to evaluate those 9,000 ballots from Miami-Dade County before reaching his decision Monday. "... by failing to examine the specifically identified group of uncounted ballots that is claimed to contain the rejected legal votes, the trial court has refused to address the issue presented," the court declared. In non-judge-speak, that's like accusing someone of sleeping on the job.

The majority also ruled that Sauls committed reversible error when he applied to the facts before him the "reasonable probability" standard instead of a lower standard provided for in Florida's statutes. The new standard -- whether additional votes are sufficient "to change or place in doubt the result of an election" -- is a "far different standard" than the one Judge Sauls "erroneously applied and articulated here," the court ruled. In non-judge-speak, that's like saying "nice try, try again."

Once the majority made these legal rulings about the case and the scope of Judge Sauls' ruling, the rest of the decision fell into place. The majority's reasoning made it easier for the justices to order a recount of ballots in Miami-Dade because to do otherwise would have "denied the very evidence" that the Gore campaign had "relied on to establish their ultimate entitlement to relief." These standards also made it a natural for the justices to add those 383 net votes to Al Gore's totals -- votes which have cut Bush's uncertified lead in the state to a precious 154.

It would ave been one thing had the decision been unanimous, as was the court's initial decision a few weeks ago and as was the U.S. Supreme Court's putative decision a few days ago. But the Florida justices were sharply divided. No less than the Chief Justice Charles T. Wells ominously warned that the decision would "do substantial damage to our country, our state, and to this Court as an institution." That's unusually harsh language to find in a dissent, especially in a dissent the writer knew would be immediately used by those with a political and legal axe to grind.

Wells wrote that he would have affirmed Judge Sauls, and limited the level of appellate review, because Sauls found no evidence of "dishonesty, gross negligence, improper influence, coercion or fraud in the balloting." He also noted -- ironically or not I do not know -- that "judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters -- not judges." That's an argument we've heard a lot of over the past four weeks from Republicans and surely one we will hear again in the weeks to come.

The ink was barely dry on the 70-page order when the Republicans appealed, both to the U.S. Supreme Court and to the 11th U.S. Circuit Court of Appeals. These moves shouldn't surprise anyone. First, Team Bush has every right to appeal the ruling, just as the Gore attorneys had every right to appeal Judge Sauls' decision.

Second, if I were advising the Bush team, I'd also try to do everything possible to stop the manual recounts. If Gore takes a lead over Bush over the weekend from those counts -- and certainly that is possible -- the political dynamics likely would change between the two men who would be King. That's why a "stay"-- a judicial order keeping things in place until the court can look further -- makes so much sense for the GOP.

The decision also will be appealed on its merits over the next few days but I cannot tell you how that appeal will unfold or end. I read the order as a sensible one but, as everyone knows, the law and common sense rarely mix. Of course it makes sense to look at evidence (i.e. the ballots) which suggests a close election before deciding who won that election. And of course it makes sense to include already-tallied votes in the final vote total. And even if it doesn't make as much sense to order "undervotes" be counted in all Florida counties, I'm certain the court included that little nugget of complexity to try to satisfy those who argue that anything less than equal treatment among recounts is unconstitutional.

I also see the ruling as legally vulnerable, especially when you consider that a conservative U.S. Supreme Court and a conservative federal appeals court will be looking at it. I don't suspect that those federal judges will reverse the Florida Supreme Court for the way it refused to defer to Judge Sauls -- tha's a state law issue. But I do suspect that this recount issue generates the sort of federal question that federal judges will want to chew on and, as anyone who has followed this story knows, when judges chew on things they tend to spit stuff out.