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latimes.com: Last hope for Gore may be 1 word: 'Doubt'

latimes.com (Los Angeles Times) -- The outcome of Vice President Al Gore's uphill contest of the presidential election could turn on a single point of law, legal experts said Monday.

After failing to convince Leon County Circuit Judge N. Sanders Sauls to order more manual recounts that might change the outcome of the election, David Boies, Gore's lead attorney in Florida, made clear the next appeal will be the final one. "I think whoever wins at the Florida Supreme Court, we'll accept that," he said.

And within hours of Sauls' ruling, an appellate court sped the case on its way to the Florida Supreme Court, certifying it as a matter of "great public importance." The court could begin action on the case as early as today, setting a schedule for briefs and possible arguments.

In their effort to convince the justices to overturn Sauls' rulings, Gore's lawyers will have to persuade them that the trial judge applied the wrong legal standard under Florida's election law. The Florida Supreme Court can review Sauls' legal conclusions from scratch. But under Florida law, the justices can overturn his findings of fact only if they determine his decisions were "clearly erroneous"--an extremely difficult burden.

The central legal point before the justices, according to lawyers who have watched the case develop, will be Sauls' ruling that to win, Gore must prove "that but for the irregularity or inaccuracy claimed, the result of the election would have been different, and he . . . would be the winner."

"It is not enough to show a reasonable possibility that election results could have been altered by such irregularities or inaccuracies," Sauls said from the bench in his small, jammed Tallahassee courtroom. "Rather, a reasonable probability that the results of the election would have been changed must be shown."

Latest statute may help case

Boies, in announcing his appellate plans, focused on that statement, asserting that Sauls had applied the wrong legal standard.

The judge said that "you need near certainty" in order to prevail, Boies said. "That is not what the statute says."

Sauls based his ruling, in part, on a 1982 election case, which set out the "reasonable probability" standard he cited. The strongest argument for Gore may be that the 1982 case predated Florida's current election law, which was passed in 1999, said Ronald A. Labasky, general counsel for the State Assn. of Supervisors of Elections.

"If the Florida Supreme Court looks at the current statute, rather than going back to the old case," Gore's lawyers will have a much stronger position, Labasky said.

At the time of the 1982 case, the law dealt mainly with allegations of fraud in elections. But the 1999 law was designed to allow review of voting under a wider range of circumstances, he said.

The key passage in Florida's election law says that the person challenging the results of an election must show that there has been "receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election."

Boies and Gore are focusing their hopes on the words "place in doubt," and USC law professor Erwin Chemerinsky said he believes they have a strong argument.

"There is a huge difference between a 'probability standard,' which the judge adopted, and the standard cited in the statute: 'sufficient . . . to place in doubt the result of the election,' " he said.

Even so, he noted, while winning that point is crucial for Gore, it would only be the beginning of the legal battle.

Normally, Chemerinsky said, when an appellate court reverses a trial judge on a question of law, the court sends the case back to the trial judge with instructions to reconsider the facts in light of the correct legal standard.

"But the time factor would make that kind of ruling a victory for [Texas Gov. George W.] Bush," in this situation, Chemerinsky said. The Dec. 12 deadline for Florida to certify its slate of presidential electors is just one week away, Chemerinsky noted. "I can't imagine how there would be enough time for a remand," he said.

The Florida Supreme Court, if it ruled for Gore on the legal point, could order a recount on its own, Chemerinsky noted. But "that is harder to imagine because it is so extraordinary in the nature of the appellate process," he said.

"Both legally and practically, this is very uphill. It's real difficult."

Beyond the legal rulings, Sauls also issued a set of factual findings that are damaging to Gore's case.

Sauls declared that "there is no credible statistical evidence and no other competent substantial evidence" to back Gore's contention that the results would have been different if all of Florida's votes had been counted accurately.

"I think this is a big blow to the Gore folks," said Michael L. Seigel, associate dean of the University of Florida Levin College of Law in Gainesville.

Evidence that wasn't allowed

Because that ruling is a finding of fact, it would be difficult for the Supreme Court to overturn it. As a result, the findings on the statistical evidence help to insulate Sauls' overall ruling, according to Seigel and Orlando attorney David E. Cardwell, former director of the Florida Division of Elections.

A key moment leading up to that finding came Sunday, on the second day of the trial in Sauls' courtroom, when the judge rebuffed Boies' request to cross-examine a statistician who testified for Bush. The issue Boies wanted to explore was whether the witness had made any projections about what the outcome in Miami-Dade and Palm Beach counties would have been if uncounted votes had been included in the totals. Boies wanted to put into evidence projections that were based on how other ballots in those counties had been cast. Bush's lawyers objected.

"That could have been very damning evidence," said Seigel, a former federal prosecutor. Sauls' ruling in favor of Bush on the issue was a key indicator of how the judge would eventually rule, Seigel said.

"If the judge had been inclined to rule for Gore, he would have wanted that evidence on the record," Seigel said. But overturning that ruling would be "very difficult" because judges are "given so much deference on such rulings," he said.

Pepperdine University law professor Douglas Kmiec, an advisor to Bush's legal team, went so far as to call Sauls' rulings "bulletproof."

Ballots still in the wings

Still, some legal experts, such as Harvard University law professor Arthur Miller, said that the matter remains in doubt. A key issue, Miller said, will be Sauls' decision that there was no need for him to look at the thousands of ballots that he had ordered trucked to Tallahassee.

On three occasions, Boies asked the judge to look at the ballots as part of the two-day trial. But Sauls agreed with Bush's attorneys that Gore was not entitled to have the ballots reviewed unless his lawyers first could show that those votes would have affected the outcome.

The best hope for Gore, Miller said, is that the Florida Supreme Court "could still say counting the votes matters."


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Tuesday, December 5, 2000

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