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Recollections: Past, Present, and Future

You're not the boss of me.

You sit next to a stranger on a bus. You’re in for a long ride. You’ll never see her again. You can say anything you like. Anything. Tell her you love her.

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Florida 2000 Election Fiasco...

Sunday, May 14, 2006

Florida 2000 Election Fiasco...

E-mailed last week. Changed to HTML for posting. [Brackets indicate update for posting.]

From: Erle W Machiavellean
To: gclester@excite.com
Sent: Thursday, October 07, 2004 11:45 AM
Subject: 2000 Florida Votes

Why are you getting an e-mail from me? Your blog (if that’s what it’s called) was linked to from a forum thread at www.military.com.

1. “It seemed to be settled that Al Gore would have won in 2000 if all the Florida votes had been properly counted, but that Bush would have won if only the additional votes that Gore demanded be counted had been counted.”

2. “Gore would have won any state-wide recount in which all of the ballots were counted. However, Bush would have won a recount if just smaller subsets of ballots were counted.” Start by disabusing yourself of the notion that sites such as Wikipedia are accurate or reliable. They are not. Wikis are not reliable sources — given that anyone who wants to can come in and change the content of a wiki.
Come to think of we should all disabuse ourselves of the notion that print or radio or TV journalists -- that is, so-called journalists -- are reliable sources, too. They are not.
You should go to the sources linked to in the wiki and read the full articles. If you do, you will find that the smaller subsets of ballots more or less amount to the subset of legal ballots. The consortium did count all of the legal ballots and their count showed that President Bush had a plurality. Illegal ballots do not count and should not count in any election: overvotes and undervotes and so on do not correspond to legal ballots. Florida election law (I’ve read it very, very carefully.[1]) provides for accepting or not accepting what show up as ambiguous votes — overvotes, undervotes, hanging chads, etc. [The ballots involved are called disputed ballots.]

Unfortunately, determining whether or not to accept a vote is based on having a ballot eyeballed by a group of people [a canvassing board] who attempt to divine the voters’ intentions. Remember Broward County (I think it was Broward County.) and the guy with the magnifying glass? And the woman who had no trouble at all determining that every ballot that came in front of her was a vote for Gore-Lieberman? No matter that the scrutinizers who had the ballots before her couldn’t determine how the ballots were marked even using a magnifying glass to enlarge their images, it was always easy for her to figure out with only the most cursory glance. If such ballot reviewers decide that they can clearly determine what the voter had in mind, then the vote counts. If they decide they can’t determine what the voter had in mind, then the vote doesn’t count.

The other unfortunate aspect of the system is that each county’s does-the-vote-count? body is made up of either two Republicans and three Democrats or three Republicans and two Democrats, depending on the county. The actual number of members on each panel may be three instead of five, but it’s always an odd number — and one party or the other always has a majority vote. The majority determines what happens with the disputed ballots. Guess what? If the majority on the committee are Democrats, it will turn out that almost every one of the disputed ballots has a vote for a Democrat on it. Vice versa for panels dominated by Republicans. What you end up with is partisans deciding who to award votes to rather than citizens deciding what a voter’s intent was.

What Al Gore & Company wanted was recounts only in the Southern Florida counties dominated by Democrats. To emphasize what the situation was: The additional votes that Gore was demanding be reevaluated — not just recounted — were in heavily Democratic counties where he knew he would be the beneficiary of a lot of found votes for him. Only after his campaign and his lawyers had screwed things up for so long that it precluded a timely statewide recount did they acquiesce to recounting all of the ballots in Florida.*

Without foolishly attempting to deal with all of the legal issues raised in Florida 2000, just let me note that I think SCOTUS correctly ruled that Florida’s lack of standards for manual recounts to determine a voter’s intent amounted to there being no way to assure that the equal protection provisions of the 14th Amendment to the Constitution could be met throughout the State of Florida. Had SCOTUS not ruled as it did, the election outcome would have been determined by a partisan Florida Supreme Court — and by partisan flacks at the county level in Florida. Not by Florida voters following election laws passed by the Florida Legislature and in place prior to the election.
Gore & Company wanted the rules changed after the election. The political hacks on the Florida Supreme Court went along with the attempt. The situation varied from county to county, but “... for the first time in Florida history — ‘rogue dimples,’ ‘hanging chads,’ and ‘pregnant chads’ were counted as votes for the vice president.” The United States Supreme Court refused to go along with the Florida Supreme Court's rewrite of Florida law.
The Florida Constitution gives plenary power for elections to the Florida Legislature, so it wouldn't be a stretch of the imagination to say that what the Dim-dominated Florida Supreme Court tried to do was pull off a coup.
The real standard that was so sorely lacking in Florida was the fair play standard of abiding by Florida's election laws. Florida has earned its longstanding reputation for corrupt elections and corrupt politicians. If you can find it, rent the film classic Key Largo (1948) and look for Edward G. Robinson’s Johnny Rocco monologue about counting “the votes over and over again till they added up right and he {his bought-and-paid-for Florida politician} was elected.”]
Don’t trick yourself up with phrases such as “if all the Florida votes had been properly counted” coupled with “the additional votes that Gore demanded be counted.” That wording could lead one to conclude incorrectly that there were votes that should have been counted that were not counted. Not so.

The real fact-based and legal-vote-based conclusion of the consortium’s recount is not as simple as the wiki writers would have us believe. The consortium recount showed that President Bush received a plurality (maybe even a little bit larger plurality than the offical tally of 537.) of the legal votes available for recount. On the other hand, they also reached a not fact-supported or vote-supported — but also not unreasonable — conclusion that Al Gore would have received a plurality if everyone’s vote had been counted the way everyone intended to vote.

Several things could support or work against that latter conclusion, that speculation.
1. Because of a broadcast misstep early in the evening, some would-be Florida voters didn’t bother to vote. When the election was called early for Gore, Western Florida polling places in the Panhandle’s Central Time Zone were still open. Estimates range into the thousands, but nobody really knows how many voters left the lines they were waiting in at the polling places and went home. Since the Panhandle is heavily Republican, it’s likely that Bush-Cheney lost a lot more votes due to that misstep than Gore-Lieberman. [Edit. Rethinking, I'm not so sure it actually was a misstep.]

2. We’ve all heard the allegations that there were efforts in counties throughout Florida to contravene a basic thrust of Florida law: Every legal voter who wants to vote should be able to vote and have her vote counted. For this aspect of the 2000 Election in Florida, you have contrary claims from the Democrats and the Republicans. Blacks were thwarted in their efforts to vote. (Didn’t the FBI thoroughly investigate this claim and find that there was nothing to pursue?) There were efforts to keep the military’s absentee ballots from being counted. (Such efforts were reported, but I don’t know what the resolution was on that one.) And on and on. How many? For whom? Who knows?

3. The final issue I’ll bother to mention is the infamous butterfly ballot that was used in Palm Beach County and the resultant miscast votes. [Supervisor of Elections Theresa LePore is already up to her eyballs in election controversy this year.] How many? We do know... thousands. Most likely meant for Gore, but cast for Buchanan.
Gore-Lieberman might have won the 2000 Presidential Election if the voters in Palm Beach County had voted as they intended to vote. If you ignore issues 1 and 2 above, there can be little doubt that they would have. But there was nothing that could be done about those votes that were so clearly marked for Patrick Buchanan, no matter what the voters intended to do. They very clearly voted for Buchanan.

Perhaps that gave some of the canvassers a way to justify their post-election actions — giving them the undeserved benefit of the doubt, perhaps they saw themselves only as trying to make up for the Palm Beach County screw-up. Some confused notion about “righting a wrong.” “Many of those folks in Palm Beach County didn’t mean to vote for Buchanan. They meant to vote for Gore. Gore would win except for that. I’m going to make up for it.” Well, I don’t subscribe to the notion that judges and referees and umpires can make up for bad calls by deliberately making more bad calls. The only way they can do their jobs right is to call each play without bias and as they see it.

Me, I don’t think that ballot designed by a Palm Beach County Democrat was all that confusing. Tests with third-graders showed that they could easily figure it out. What I think happened is that some local Democrat operative who knew enough about Florida law to know that Gore-Lieberman would appear second on the ballot told a lot of people — without ever looking at a real ballot — to be sure to mark the second box on the ballot. Enough voters dutifully followed those instructions and voted for Buchanan that the result was George Walker Bush ended up in the White House instead of Albert Arnold Gore, Jr. As an occupant and not as a guest.

Maybe we’re just not destined to have an Arnold as President of the United States.

[1]Note: Had the roles of President Bush and Al Gore been reversed in the Florida 2000 Election Fiasco, I would have felt exactly the same way and researched the Florida Election Statutes just as I did. I didn't care all that much that year — I didn't think either Al Gore or George W. Bush would make a very good President. One gets inured to having not-so-hot Presidents after a while.

Some of the notes I took during the Florida 2000 Election Fiasco.
“...supervisor of elections... shall provide supervised voting for absent electors residing in any assisted living facility.... supervisor... shall designate supervised voting teams to provide the services prescribed in this section.... voting team shall include at least two persons.... must include representatives of more than one political party.... No candidate may provide... {these} services.”

Vote for two people for President and you vote for no one for President. The rest of your ballot can still count. If you screw up your ballot, you can get another one. Just ASK.

You can get voting instructions before you enter the voting booth — and even after.

Looks like it’s OK for me to refer disparagingly to my opponent (even to his race or religion if I’m really stupid), but I can’t mention that he’s a Republican without breaking the law. Would this pass muster when tested against the Bill of Rights?

Nothing in the law says that if I register as Albert Gore, Jr., that I can’t sign as Al Gore when I vote. (However, common sense does say that.) The inspector’s obligation is clear enough, though — make sure the voter is who she says she is. [Edit. Dims around the country continue to try to make that difficult. The reason is obvious: Dim candidates will benefit more from not knowing who's voting than Republican candidates will.]

The notorious Palm Beach County butterfly ballot met these legal requirements. However, having to punch out the third hole to vote for the second candidate was surely a bad idea and not at all what the framers of the statute had in mind. Those who wrote the statute want you to vote for the first or second candidate on the ballot — either a Democrat or a Republican. They want you to vote for a major party candidate. Even without instruction, though, the big arrows make it pretty clear which hole to punch for which candidate.

Self-contradictory. Calls for a “clear indication of intent” in one place but uses the phrase “impossible to determine” in another. There will be situations where the intent is arguably unclear yet still possible to determine. The decision is left to each canvassing board.

No postmark mention; no date of receipt by supervisor of elections mentioned for a ballot to be counted. It is very clear that some mark indicating overseas point of origin is necessary to comply. There is a deadline for receipt.

However, from some Supervisor of Elections’ website: “Absentee ballots are date- and time-stamped upon receipt and are accepted up to 7:00 pm on the day of the Election. Any absentee ballots received after that point are logged in as to date and time of receipt but are not counted, with the exception of military absentee ballots from overseas which may be counted if postmarked by Election Day and received within ten days following the election.”

Later on, a date of receipt is mentioned, but it’s not a “must.” There’s certainly the implication, too, that a ballot received after the polls are closed will not count. That’s not what’s been done.

In the US Supreme Court case related to the Florida Supreme Court’s extension of the deadline, Hancock states “...the executive branch has implemented a rule — not a law, but a rule — that allows absentee ballots from overseas military voters that we receive up to 10 days after the close of the polls. Under the law of the state of Florida, all absentee ballots have to be received by the time the polls close on Election Day.” No wonder I couldn’t figure this area out. I disagree with Hancock’s last sentence — Florda law is certainly unclear on the requirements. Besides, the “rule” may be necessary to comply with Federal laws regarding military voters overseas. ...

The statutes allow until 5 p.m. the Tuesday following the election. No ambiguity. Late returns will not count. No ambiguity. A problem if a protest or call for a manual recount comes in at 4:58 and the certification at 4:59.

Ambiguity rears its ugly head. “May be ignored” and “results on file ... may be certified.” Legislator-lawyers at work now and doing a very bad job of being consistent.

Canvassers get fined if they fail to get returns in on time. The legislature was serious about that seven-day deadline. Oops, “appeal”?

OK. There’s n days to protest or call for a manual recount, wherever those statutes are. Sensible thing is to make the deadline +7 days after the election, not 7 days. Then there’s always at least 7 days in which to get any manual recounts done.

A little misconduct, fraud, or corruption must be OK.

Again — no harm, no foul. Guess you have to draw blood.

A tremendous amount of leeway for a circuit court judge when the Presidency is at stake.

This will presumably be the justification for the Florida Supreme Court’s call for a partial recount — the recount of “undervotes.” There’s no other provision in Florida law that I’ve found to make their order legal.

Ah, yes, our erstwhile amateur Florida legislator-lawyers at work again.

These guys aren’t just hacks, they’re extraordinary hacks.

I’m a candidate. I can’t give anything of value to another candidate — for any office.

Ah, but I can do that as long as there’s no quid pro quo.

This law prohibits a canvassing board from isolating itself from public view. The Dade County board appeared to me to be prepared to do just that. Refusing to allow watchers — this may have been what was going to happen when that rabid Republican mob (in their suits and ties and button-down or polo shirts and khakis) got loud. Lucky for the canvassers — the mob prevented them from committing a crime November 22.

* [Edit: I thought at first that David Bois, Gore's top lawyer, had made a mistake by trying to get ballots selectively recounted only in counties where he could be almost certain that a big majority of the "found votes" would go to Gore-Lieberman. From the git-go, that approach was not likely to fly. As it was, the Gore Camp waited too long for a timely recount to be done in all Florida counties -- that's when SCOTUS stepped in and made the correct call.

What I have belatedly -- over 15 years late -- realized is that Bois very likely knew exactly what he was doing. If he could forestall settlement of the dispute long enough to keep Florida's electoral votes from being counted, Gore would be elected POTUS.

I'm just not sneaky enough to be a lawyer.]

posted by Anonymous, 5/14/2006 01:57:00 AM


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