Displaying statistical charts and voting machinesbrimming with chads, two expert witnesses for Vice President Al Gore testifiedyesterday about the likelihood that a machine count of Election Day ballotsoverlooked votes for president.
The testimony in Gore's election contest underscored his claim thatFlorida's certified vote count excluded votes that were legally cast forpresident in the Nov. 7 election. Gore's lawyers hope the evidence willconvince Leon County Circuit Judge N. Sanders Sauls to order an immediate handcount of 14,000 disputed ballots.
Gore contends that a manual count would show that he - and not Texas Gov.George W. Bush - won the hotly contested Florida race.
But lawyers for Bush, the certified winner by a slim 537 votes, attackedthe credibility of the Gore witnesses and argued that a manual recount was notwarranted under Florida law because local canvassing boards had not abusedtheir discretion in conducting recounts so far.
Bush lawyers likened Gore's request for a manual recount to a candidatetrying to get "three shots at the basket." The Florida election returns haveundergone a state required recount. Some counties conducted a second recount,by hand, after protests were filed by the Democratic Party. And overseasballots were added to the count.
After the marathon nine-hour trial, each side left the court room saying ithad scored points needed to prevail in this extraordinary challenge of apresidential election.
Both pointed to the testimony of defense witness Charles Burton, the PalmBeach county judge who became known across the country when television cameraschronicled his stewardship of the local canvassing board's race-to-the-finishrecount efforts.
Burton, one of three Palm Beach canvassing board members, appeared for thedefense. In testifying about the board's deliberate and conscientious mannerof doing business, Burton emphasized the defense's point that he and hiscolleagues performed their duties admirably and not in a way that wouldjustify judicial intervention now.
But that testimony also helped buttress Gore's argument that a painstaking,hand review of ballots can and has found votes that weren't previouslyrecorded. And if those votes can change an election outcome, Gore lawyers sayFlorida law requires judicial intervention to correct the record.
The Gore team wants 3,300 Palm Beach ballots reviewed again because theboard refused to use a liberal interpretation of a dimpled or indented ballot.
In his testimony, Burton noted that he had been accused of blocking a handrecount of the votes because of his deliberateness. Palm Beach's recountfailed to meet a Nov. 26 deadline set by the Florida Supreme Court, which costGore 174 votes, according to a revised tally by the county yesterday.
But Sauls disagreed from the bench.
"Absolutely not. I think you are a great American," said the judge.
Sauls, a judge for 17 years and a Democrat, opened the court house on theweekend for the trial that was televised nationally and drew a few dozenplacard waving demonstrators to the lawn outside. About 35 lawyers filled thetrial tables: the Republican team armed with laptops, a laser projector andlife-like illustrations; the Democratic side using yellow legal pads andposter-board charts.
The Gore legal team presented two witnesses in a hearing that featured twokinds of punch-card voting machines and their functions and ills, undervotebar graphs and evidence of "chad buildup," the bits of paper that accumulatewhen voters punch through a ballot.
A statistics professor from Yale University, Nicholas Hengartner, offeredan analysis that supported the vice president's contention that there wereuncounted votes in the predominantly Democratic counties of Palm Beach,Broward and Miami-Dade. He testified that the percentage of no-votes in thesecounties was statistically higher than usual, suggesting that the punch-cardballot machines failed to pick up votes.
Kimball Brace, an elections consultant, offered a remedy to capture voteslost because of possible election machine problems or glitches with ballots -a hand count of the ballots.
"When you have a close election, a hand count is the only way of knowinghow many votes were cast for each candidate," said Brace, president ofElection Data Services, a Fairfax, Va., consulting firm on elections systems.
Brace was being paid $175 an hour for his work often echoed the Goreargument.
When a Bush lawyer suggested that manual recount can result ininattentiveness and possibly errors, Brace agreed that people do get weary andtired.
But he added that manual inspection of the ballot was the only way to seeif voters actually cast ballots, supporting the Gore team's argument that ahand recount is essential to finding uncounted votes.
Bush lawyer Phil Beck attacked Brace, saying, "A political science major incollege ought not to be the person talking about how voting machines operate."
Under questioning by defense lawyers, Hengartner said a higher no-vote ratefrom a punch card machine doesn't negate the fact that some voters just do notvote for every candidate when they go into a voting booth.
Beck accused the professor of "buying into" the Gore team's thesis thatpunch-card ballot machines produce no-votes because they didn't record them.
Joseph Klock, an attorney for Secretary of State Katherine Harris, calledHengartner an "honest man," but said, "who's going to be the president of theUnited States" would not be decided "by a very sophisticated professor fromYale University who talks about statistics."
David Boies, the Gore team's lead lawyer, said the testimony showed that"if you manually look at these punch card ballots, you will discover hundredsand hundreds of votes where the intent of the voter is clear [but] has notbeen counted."
But Ben Ginsberg, speaking for the Bush legal team, reminded voters of "theenormity" of what Gore is asking: to overturn a presidential election withevidence that Ginsberg suggested was "superficial."
Testimony resumes at 9 a.m. today, with Boies worried that another day incourt means another day not counting ballots: "Every hour makes a difference.Every day makes a difference, but I still think we're on track."