TALLAHASSEE, Fla.—Displaying statistical charts and voting machines brimming with chads, two expert witnesses for Vice President Al Gore testified yesterday about the likelihood that a machine count of Election Day ballots overlooked votes for president.
The testimony in Gore's election contest underscored his claim that Florida's certified vote count excluded votes that were legally cast for president in the Nov. 7 election. Gore's lawyers hope the evidence will convince Leon County Circuit Judge N. Sanders Sauls to order an immediate hand count of 14,000 disputed ballots.
George W. Bush - won the hotly contested Florida race.
But lawyers for Bush, the certified winner by a slim 537 votes, attacked the credibility of the Gore witnesses and argued that a manual recount was not warranted under Florida law because local canvassing boards had not abused their discretion in conducting recounts so far.
Bush lawyers likened Gore's request for a manual recount to a candidate trying to get "three shots at the basket." The Florida election returns have undergone a state required recount. Some counties conducted a second recount, by hand, after protests were filed by the Democratic Party. And overseas ballots were added to the count.
After the marathon nine-hour trial, each side left the court room saying it had scored points needed to prevail in this extraordinary challenge of a presidential election.
Both pointed to the testimony of defense witness Charles Burton, the Palm Beach county judge who became known across the country when television cameras chronicled his stewardship of the local canvassing board's race-to-the-finish recount efforts.
Burton, one of three Palm Beach canvassing board members, appeared for the defense. In testifying about the board's deliberate and conscientious manner of doing business, Burton emphasized the defense's point that he and his colleagues performed their duties admirably and not in a way that would justify 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 previously recorded. And if those votes can change an election outcome, Gore lawyers say Florida law requires judicial intervention to correct the record.
The Gore team wants 3,300 Palm Beach ballots reviewed again because the board 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 hand recount of the votes because of his deliberateness. Palm Beach's recount failed to meet a Nov. 26 deadline set by the Florida Supreme Court, which cost Gore 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 the weekend for the trial that was televised nationally and drew a few dozen placard waving demonstrators to the lawn outside. About 35 lawyers filled the trial tables: the Republican team armed with laptops, a laser projector and life-like illustrations; the Democratic side using yellow legal pads and poster-board charts.
The Gore legal team presented two witnesses in a hearing that featured two kinds of punch-card voting machines and their functions and ills, undervote bar graphs and evidence of "chad buildup," the bits of paper that accumulate when voters punch through a ballot.
A statistics professor from Yale University, Nicholas Hengartner, offered an analysis that supported the vice president's contention that there were uncounted votes in the predominantly Democratic counties of Palm Beach, Broward and Miami-Dade. He testified that the percentage of no-votes in these counties was statistically higher than usual, suggesting that the punch-card ballot machines failed to pick up votes.
Kimball Brace, an elections consultant, offered a remedy to capture votes lost 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 knowing how many votes were cast for each candidate," said Brace, president of Election Data Services, a Fairfax, Va., consulting firm on elections systems.
Brace was being paid $175 an hour for his work often echoed the Gore argument.
When a Bush lawyer suggested that manual recount can result in inattentiveness and possibly errors, Brace agreed that people do get weary and tired.
But he added that manual inspection of the ballot was the only way to see if voters actually cast ballots, supporting the Gore team's argument that a hand recount is essential to finding uncounted votes.
Bush lawyer Phil Beck attacked Brace, saying, "A political science major in college ought not to be the person talking about how voting machines operate."
Under questioning by defense lawyers, Hengartner said a higher no-vote rate from a punch card machine doesn't negate the fact that some voters just do not vote for every candidate when they go into a voting booth.
Beck accused the professor of "buying into" the Gore team's thesis that punch-card ballot machines produce no-votes because they didn't record them.
Joseph Klock, an attorney for Secretary of State Katherine Harris, called Hengartner an "honest man," but said, "who's going to be the president of the United States" would not be decided "by a very sophisticated professor from Yale 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 hundreds and hundreds of votes where the intent of the voter is clear [but] has not been counted."
But Ben Ginsberg, speaking for the Bush legal team, reminded voters of "the enormity" of what Gore is asking: to overturn a presidential election with evidence that Ginsberg suggested was "superficial."
Testimony resumes at 9 a.m. today, with Boies worried that another day in court means another day not counting ballots: "Every hour makes a difference. Every day makes a difference, but I still think we're on track."