12/01/00 9:10 a.m.
Hoist by His Own…
Al Gore, architect of his own troubles.

By Victoria Toensing, lawyer and former Deputy Assistant Attorney General

f course you heard the one about the son slaying his parents and then complaining to the court he was an orphan. At Al Gore's request, the Florida supreme court extended by twelve days the statutory deadline for certifying the Florida election results; now Gore whines to the court that he does not have sufficient time for the post-certification contest.

Gore and his campaign wanted to thwart the legal Florida certification date of November 14 on two grounds. First, for political image reasons, they did not want George W. Bush to have the imprimatur of a certification, and their candidate to appear as the loser challenging the victor. The Gore lawyers knew that certification was but one step in the entire electoral process, and that subsequent to certification they could still challenge the results in the Florida courts. In fact, Florida's statutorily imposed time table provided a reasonable number of days after November 7 for the election to be certified, and for the parties to present evidence challenging specific decisions by the county election boards. However, when the Florida supreme court sua sponte enjoined Secretary of State Katherine Harris from certification, the Gore team thought it had been handed the brass ring; his lawyers clung to it during oral argument, requesting again and again for that court to create a later deadline so that the Democratic-controlled counties could finish the hand recounts. They got what they wanted.

The second reason was tactics. So long as there was no certification, decisions about which votes or dimpled chads were in or out rested in friendly hands, the Democratic-controlled county election bodies. For any such decision, the Republican, if there was one, was outnumbered. After certification, the challenging process (called a "contest") would be decided by judges, not Democratic politicians. Thus was the plan: bide time provided by the extended deadline while all those Democrats increase the Gore tally. Once Gore got in the lead and "won" Florida, Bush's ability to challenge the result would be jeopardized by a truncated, almost impossible time within which to bring a contest before the December 12 drop-dead day. For a while, the Gore team got what they wanted.

But then the new deadline poisoned the plan. Miami-Dade County voted to quit recounting. Why? They could not meet the new deadline. Palm Beach County could not finish the hand recount by the new deadline and had to turn in its previously finalized numbers at the Sunday, November 26, 5:00 P.M. deadline. Only Broward came through, adding 567 votes for Gore — insufficient to take the lead. However, during the expanded time frame, Bush gained votes by getting some counties to reconsider which military ballots would be counted. What's more, the U.S. Supreme Court took notice of the Florida supreme court's extending the deadline, inter alia, and decided to take the case.

So now it is Gore who has the shortened, almost impossible time within which to contest the certification. Evidence and witnesses take time; appellate review takes time. All must be done before December 12. If the Gore contests are still undecided in the Florida courts a few days before December 12, the state legislature will move to ensure there are 25 electors.

The United States Supreme Court granting certiorari does not change this scenario. The Court's decision is on a path separate from the state-court contests. Whatever the Court decides, it will not take away Bush's lead in the vote count. Gore winning in the U.S. Supreme Court merely preserves the legal status quo. However, a Bush win could put the vote count back to the 930 advantage he had on the real statutory certification date, and would be a public-relations benefit. Moreover, by the U.S. Supreme Court having jurisdiction, it sits like a 900-pound gorilla, presumably ready to pounce on any new extra-legal activity by the Florida supreme court.

If the Gore legal team had not asked for the later deadline, it would be in a much improved position today, both legally and politically. It would have had sufficient time, starting November 14, to present evidence in the Florida judicial system, all to be reviewed by that friendly Florida supreme court. The U.S. Supreme Court would not be in the picture, because no one would have known yet how far the Florida supreme court was willing to change the rules. But most important legally, all those contest decisions would have been appeals of whether to accept dimples or pimples, i.e., interpretation of state law, and, therefore, not an issue for U.S. Supreme Court review.

Additionally, without the new deadlines imposed by the Florida supreme court, Miami County could have recounted at a leisurely pace with the intention to use the results in a contest, just as Palm Beach County will use its recount after it missed the Sunday deadline. If those results would have shown a Gore advantage, as he claims, his political position would be far better than it is today.

Al Gore wanted George W. Bush to lose the manual recount and to look like a whiner when he complained that he lost twelve precious days to contest that procedure. Instead, it is Gore who is whining before the courts — about the deadline he himself killed.