In a unanimous and passionate 42-page ruling delivered at 9:45 p.m. Tuesday, the seven Democrats on Florida's highest court rolled up its sleeves and used what it described as its "equitable powers" to order Katherine Harris to accept and certify any adjusted tallies received by 5 p.m. at the end of this weekend. Or Monday morning if she wants a full night's sleep.
By the court's reckoning, that's plenty of time for the counties to complete the counts and for the loser to contest the result before December 12, the day Florida has to pick which slate of electors to send to Washington. And well worth the wait. Legislatures are fallible "the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases" and hand counts are supreme. "Our society has not yet gone so far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors of machines."
It was just what Al Gore needed to hear, and no more.
The vice president, his door to victory having been thrown open by the law, quickly took a few minutes of national airtime trying to shut it behind him. This time it was the local news, just after 11 p.m., and the p.r. volleys flew far and wide. "I don't know what those ballots will show," Gore insisted. "Our democracy is the winner tonight." The vice president asked again, just as safely, for a peace summit with Bush, asked again for both sides' troops to keep their voices down. (This with David Boies due up next from Tallahassee.) Then he gallantly insisted upon the sanctity of electorhood, forswearing the support of any Bush electors even though he had of course won the popular vote, remember? Heck, he even OK'd some transition planning in the meantime.
He also tried to seal off the growing Bush outcry over the quality of the counts themselves, thanking the "citizen volunteers of both parties" for working so hard and so well. "As Americans always do," Gore intoned, "they are rising to the occasion." They'd better they'll likely be working on Thanksgiving.
He was being reasonably honest about the suspense. In what is now almost purely a numbers game, Gore has less than a week to find 930 votes (or more, depending on the absentee ballot challenges) in the piles of cardboard and chads sitting in the counting rooms of Broward, Palm Beach and Miami-Dade counties. And on November 26, he's going to win or he's going to lose.
Maybe. Because this aggressive, newspaper-reading, activist court was in fact rather discreet about the one factor that according to the numbers will pick the winner: the dimples. Oh, they hinted at it, calling "voter intent" to be paramount and citing an Illinois Supreme Court case that read a dent like a vote. But these seven Democrats were obviously a little worried what history might think of their politics. So they passed a little bit of the buck.
That's right. Katherine Harris' much-debated discretion is alive and well, albeit in a different form. The high court left it to her to include or exclude on Certification Sunday the "dimpled chads" that Gore desperately needs and Bush is desperately afraid of. Anybody want to guess what she'll do, and who'll be suing her on Monday?
For the Bush legal team, the war continues this week on several fronts. The military ballots: get them counted with a little generosity, and get the public hopping mad if they're not. They'll take the constitutional fairness of selective recounts to other, machine-counted voters back to the 11th Circuit Court in Atlanta, and higher if they have to. And they'll make the case to the people in the next five days, to the courts afterward that a voter without sufficient voting "intent" to poke a hole, any hole at all, in a piece of cardboard didn't intend to poke a hole at all.
Bush surrogate-in-chief James Baker kicked things off: No fair. No fair, he said, "to rewrite the election law by judicial fiat after the election has been held." No fair, he said, "to usurp the duties of the executive branch." No fair to "change the rules either in the middle of the game, or after the game has already been played." And no fair to let a dimple count as a vote.
The Bush team, Baker warned, will consider "whatever remedies we may have to correct this unjust result." Including revving up the Florida legislature, which under a dusty law can step in and select the state's electors if they feel the law they wrote is being mangled by the working lawyers and judges. A legislature that is Republican, and that just Monday gave Katherine Harris a standing ovation.
In other words, Gore's spinners and his red-hot lawyers will be working Thanksgiving too, trying to turn public opinion into something for Florida Republicans to fear. The Gore team, which made such hay all campaign long with the ironies in Bush's Texas record, will start in tonight on that dimple-friendly Texas hand-count law and never let up; Baker tonight began the p.r. task of explaining it away. The question of dimples is still a question, and if the Bush lawyers continue to strike out it'll be the only question.
The way the numbers are stacking up out of the lurching, halting, hotly contested counts in those three Democratic counties, Gore won't win without dimple votes and Bush won't win with them. The Court sounded very likely tonight to include them Boies said Tuesday night that the Court had "indicated" that dimples were in. But if Harris makes Boies ask again, the Justices won't be able to escape the fact that some counties count dimples and some counties don't. And Palm Beach County hadn't included dimples in a decade. Now it suddenly wants to tally up a big pile of them that could turn up 300 more votes, and four years in the White House, for Gore.
For the impatient, the upside of the November 26 deadline is that it's right around the corner. The downside is that it's very likely just to be the starting bell of another round of legal brawling, and the fight could still stretch well into December.
Voter intent, indeed.