As Bush's lawyers appealed to the U.S. Supreme Court, the state-court-ordered recount in Florida began. County by county, election canvassing boards moved smoothly through the machine-rejected ballots, discovering hundreds that clearly had registered choices for presidential candidates.
Gore gained some and Bush gained some. When there was a dispute, the ballots were set aside for later presentation to Leon County Circuit Judge Terry Lewis, who had been named by the Florida Supreme Court to oversee the process and was given wide leeway to make judgments about which ballots should be counted.
"The Circuit Court [Lewis] is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary," the Florida Supreme Court ruling stated. "In tabulating the ballots and in making a determination of what is a 'legal' vote, the standard to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a 'legal' vote if there is "clear indication of the intent of the voter.'"
As the recount proceeded, the chairman of the Charlotte County canvassing board posed a question to Judge Lewis: what should be done with ballots in which a voter both punched the name of a presidential candidate and wrote the name in?
These so-called "over-votes" -- containing two entries for President although for the same candidate -- had been kicked out of the counting machines, too, along with the "under-votes," those where the machine couldn't discern a vote for President.
The Florida Supreme Court ruling had only specified tallying the under-votes, but the ruling also had instructed Judge Lewis to count every vote where there was a "clear indication of the intent of the voter."
The over-votes demonstrated even more clearly than the under-votes who the voter wanted. So Lewis sent a memo to the state canvassing boards, instructing them to collect these over-votes and send them along with under-votes still in dispute.
"If you would segregate 'over-votes' as you describe and indicate in your final report how many where you determined the clear intent of the voter," Judge Lewis wrote, "I will rule on the issue for all counties."
Lewis's memo -- a copy of which was later obtained by Newsweek magazine -- might not have seemed very significant at the time, but it would grow in importance because the over-votes were discovered to heavily favor Gore.
If they were counted -- as they almost surely would have been under Lewis's instructions -- Gore would have carried Florida regardless of what standard was applied to the "chads," the tiny pieces of paper that were not completely dislodged from the punch-through ballots that were then kicked out by the counting machines.
After the Lewis memo surfaced almost a year later, the Orlando Sentinel of Florida was virtually alone in asking the judge what he would have done with the over-votes if the Florida recount had been permitted to go forward. Lewis said that while he had not fully made up his mind about counting the over-votes in December 2000, he added: "I'd be open to that."
A Judicial Coup
But only hours after Lewis issued his instructions for counties to collect the over-votes, five Republicans on the U.S. Supreme Court did something unprecedented. The narrow court majority ordered a halt in the counting of ballots cast by citizens for the election of the President of the United States.
It was a heart-stopping moment in the history of a democratic Republic. It carried the unmistakable odor of a new order imposing itself in defiance of the popular will. There were no tanks in the streets, but the court's ruling was as raw an imposition of political power as the United States had seen in modern times.
In the 5-4 decision, the highest court in the land told vote-counters across Florida to stop the recount out of fear that it would show that Gore got more votes in Florida than Bush did.