Two Strikes Against Al Gore

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Leon County Circuit Judges Terry Lewis and Nikki Clark

So much for Al Gore's Plan B.

The Florida Supremes are back to being the veep's last best shot at the White House after Leon County court spokesman Terre Cass, at 2:15 p.m., finally delivered twin rulings from judges Terry Lewis and Nikki Clark on the Martin County and Seminole County absentee ballot application cases. The punishment, said the judges, didn't fit the crime.

"Despite irregularities in the requests for ballots, neither the sanctity of the ballots nor the integrity of the ballots have been compromised," Cass read as whoops went up from presumably Republican onlookers. "All relief requested by the defendants have been denied."

The Martin County appeal was already on the way, with one from Seminole on its heels. But the Florida Supreme Court — especially after being cited in the decisions themselves — is thought to be unlikely to overturn the lower courts on this one.

The simultaneously issued rulings (on which Lewis and Clark had conferred) were fitting for two cases that shared not only the essential issues but most of the Bush legal team, which for the past two days shuttled back and forth between Lewis and Clark's courtrooms as the supposedly one-day trials dragged on and on. The basic facts were never in dispute: Two Republican supervisors of elections had allowed Republican party workers access to two stacks of absentee ballot applications, in order to fill in voter ID numbers — left off the forms by a printing error — and save the applications from the trash. (A similar case in Bay County was thrown out of a lower court Thursday.)

Conspiracy or hypertechnicality?

This was in violation of a 1998 anti-fraud law naming the voter ID numbers as one of nine pieces of information that had to be filled in by the voter or his family. Republicans called it the supervisors' questionable behavior a "hypertechnicality." Democrats called it a political conspiracy.

The question for Lewis and Clark was, as Clark put it at the start of her trial, whether it "adversely affected the sanctity of the election." And would the legal remedy — the trashing of some 25,000 legally cast ballots from both counties (or a statistically derived smaller number, as the Democrats in the Seminole case had offered) — do still more damage to that very sanctity?

Gore, fearing the p.r. ironies of a throw-out-the-vote remedy, had talked David Boies out of joining the cases, and it was not until Tuesday, wounded by Judge Sauls' ruling against him, that he deftly inserted the two long shots into his bag of options. "The Democrats were denied an opportunity to come in, denied a chance to even look at the applications and those applications were thrown out," Gore insisted to reporters Tuesday. "It doesn't seem fair to me."

A delayed verdict

Well sold. But that key issue — unfairness to one party over the other — didn't stand up in court. "The mistake that was made on them was made by the Republican party," testified Peggy S. Robbins, the Martin County supervisor of elections, of the ballot forms (this was also true in Seminole County). "It only seemed logical to allow the Republican party to correct that mistake; the preprinted number was not received by the voter."

Sandy Goard, Robbins' counterpart in Seminole County, denied getting any similar requests from the Democrats, and Goard's lawyer, Terry Young, claimed that few, if any, rejected Democratic applications in Seminole had resulted in disenfranchisement. Which is exactly what the Democratic plaintiffs were attempting to visit on some 25,000 absentee voters who had done absolutely nothing improper themselves.

During the course of her trial Judge Clark had repeatedly questioned whether that remedy was appropriate, but she had seemed willing to be convinced, and had repeatedly denied the Bush team's attempts to dismiss the case or boil it down to a "summary judgment" on the legal issues. Then at 12:30, the expected rulings were delayed until 2:15 — to a groan from the assemblage of reporters — because "one of the judges, I'm not going to say which one," said court spokesman Doug Smith, "needs more time to consider her ruling." Laughs.

Lunchtime suspense

When Clark bristled at plaintiff's lawyer Gerald Richman's closing-argument suggestion that she could put the fear of the court into future elections supervisors — "My job is not to send a message... my job is to rule in the case that's before me" — it seemed a statement that could cut both ways. Then there was the lunchtime injection of suspense: Was the situation fluid? Could one or both of these cases turn George W. Bush into what he hasn't been for 31 days now — the challenger?

Now, her and Lewis's rulings would seem to have cut Al Gore 's options down to one: The recount.

Not so fast. Both sides had already written their appellate briefs by the time the Friday ruling came down, and the 12,000 ballots from the Seminole County case were already waiting in the evidence room at the Florida Supreme Court for the inevitable appeal that could come as soon as Monday. And Gore adviser Ron Klain refused to commit the veep to a concession, even if Gore goes 0-3 for the day.

It'll be up to the Florida Supremes whether Gore will need those appeals to have a shot at winning the White House. And it'll be up to Gore, if he loses his election challenge one last time, whether he wants to make us hang around for a few more last gasps.