nationaljournal.com
Why The Florida Recount Was Egregiously One-Sided
By Stuart Taylor Jr., National Journal
© National Journal Group Inc.
Monday, Dec. 25, 2000
Most of the attacks on the U.S. Supreme Court's 5-4 ruling
on Dec. 12 halting Florida's statewide manual recount
have proceeded from the assumption that the Florida
Supreme Court had acted reasonably -- or at least
defensibly -- in its stunning, 4-3 decision four days before
to order the rushed recount. The assumption is wrong, as I
demonstrate below, and my next column will discuss what
the U.S. Supreme Court should have done about the
Florida case.
The Florida court's decision was
so blatantly, one-sidedly
pro-Gore that but for the U.S.
Supreme Court's intervention, it
would have had the foreseeable
effect of rigging the recount in
the guise of "counting every
vote." To be precise, the Florida
court's decision -- aside from
making a hash of Florida's election laws and denying
George W. Bush any semblance of due process -- awarded
Al Gore several hundred more "votes" than he would have
gained from any fair and credible vote-recounting process.
If Gore had pulled ahead of Bush by, say, 300 votes in the
further recounts ordered by the Florida court, such phony
"votes" would have provided his entire margin of victory,
and then some.
I won't focus here on legalisms. Let's just count the votes,
as the saying goes. Starting with some undisputed
numbers from three counties that have received far less
attention than they deserve: the Broward 567, the
Miami-Dade 168, and the Palm Beach 176. These are the
margins (totaling 911) by which the new "votes" generated
for Gore exceeded those for Bush in the manual recounts
that had already been done, before Dec. 8, by the
Democratic-dominated canvassing boards in these three
big, mostly Democratic counties. (Superlawyer David
Boies, who represented Gore, has repeatedly put the Palm
Beach number at 215. He has repeatedly been wrong.)
With no real explanation, the Florida court conclusively
awarded Gore all 911 of these "votes." It added the
Miami-Dade 168 and the Palm Beach 176 to Gore's
statewide total -- even though Miami-Dade had done only a
partial recount, in heavily Democratic precincts, and even
though Palm Beach had missed the Florida court's own
Nov. 26 deadline for completing its recount. The Florida
court also made final the Nov. 26 certification of Broward's
number, 567. In doing so, it ignored Bush's pending
challenge to hundreds of these Broward "votes" (and
similar "votes" in Volusia County) -- most of which were
not votes at all, Bush's attorneys argue persuasively.
Rather, they were unreasonable deductions of voter intent,
from inscrutable pieces of paper, by the transparently
partisan, count-every-last-dimple majority of the Broward
canvassing board.
According to the Florida court's own calculations, the Dec.
8 decision thus brought Gore to within 193 votes of
overtaking Bush. (This assumes the Palm Beach number to
be 176, not 215.) The Florida court's new recount also
gave Gore some hope -- his only hope -- of pulling ahead,
by assigning hundreds of new vote-counters to search
through 50,000 as-yet-unexamined "undervotes" for the
200 dimples that could make Gore President. (Undervotes
are ballots on which vote-counting machines had detected
no vote for any presidential candidate.)
If enough dimples could be found, it appears, the Florida
courts would almost immediately have designated Gore
the winner of Florida's electoral votes, and of the
presidency. But even a cursory analysis suggests that this
would have been a travesty, because about two-thirds of
both the Broward 567 and the Miami-Dade 168 appear to
have been phony votes -- ballots that came nowhere near
proving voter intent to choose Gore.
Some sixth-grade arithmetic: Officials in Broward
interpreted about 25.6 percent (1,721) of the county's
6,716 undervotes as votes for either Gore (1,142) or Bush
(579). The vote-to-undervote ratio in Miami-Dade's partial
recount before Thanksgiving was also about 25 percent.
But officials in Palm Beach County, including the estimable
Judge Charles Burton, interpreted less than 8 percent
(828) of the 10,604 undervotes there as real votes.
So Broward and Miami-Dade generated more than three
times as many "votes" per 100 undervotes as Palm Beach.
Given the similarities between Broward and Palm Beach,
the magnitude of this difference is almost surely
attributable to different vote-counting standards.
Other evidence bolsters this inference: Democratic
officials in Broward, Palm Beach, and Miami-Dade counties
had all liberalized their chad-counting standards several
times during the post-election period, amid complaints
from the Gore camp that the counties would put Gore over
the top only if they "counted" more dimpled chads. Even
the liberalized Palm Beach standard -- counting a dimpled
chad when a pattern of dimples on the ballot indicated
voter intent -- was not nearly as pro-Gore as the new
standards used by Democratic officials to "count" the
Broward 567 and the Miami-Dade 168.
Broward, in particular, counted virtually all dimpled
chads, after Gore's attorneys produced an affidavit
claiming -- falsely, as it turned out -- that this was what the
Illinois courts had done in a case quoted approvingly by
the Florida Supreme Court in its first, Nov. 21 decision. In
fact, Illinois and most other states do not ordinarily count
dimpled chads, with a few exceptions that Gore's attorneys
misrepresented to be the rule. And until this election, no
Florida court had ever suggested (let alone ordered) that
dimpled chads be counted as votes. In fact, Palm Beach
County had barred the counting of dimpled chads.
The new, liberalized Palm Beach County standard
nonetheless seemed reasonably fair to Bush and Gore alike
(although both maintained otherwise). Certainly there was
no unfairness to Gore. It follows, as the night the day, that
the standards (or nonstandards) used in Broward and
Miami-Dade were not credible or fair to Bush.
(This seems to have eluded the Florida Supreme Court's
four-member majority, which perhaps was trying to make
a virtue of standardless chad-counting.)
If the Broward and Miami-Dade recounts had been fair,
Gore's net gains would have been reduced by about
two-thirds -- by some 378 votes (567 minus 189) in
Broward and some 112 votes (168 minus 56) in
Miami-Dade. The combined reduction in Gore's net gain
would have been about 490 votes. Subtracting these 490
from the Gore total would have increased Bush's lead from
193 to about 683. And this is without factoring in the
additional net gain of roughly 400 to 500 votes that the
Bush attorneys expected to find by recounting technically
flawed but otherwise valid overseas absentee military
ballots -- many of which had initially been thrown out at
the request of the Gore camp.
Another way of looking at it: Had the Democratic officials
who ran the manual recount in Palm Beach County also
been in charge of Broward and Miami-Dade, Bush would
have had an apparently insuperable lead in the range of
about 683 votes to 1,183 votes (if 500 more overseas
ballots were counted). Conversely, had the Democratic
officials who ran the Broward recount also been in charge
of Palm Beach, they would have found a net Gore gain
there of an additional 352 votes (176 times two) on top of
the 176 credited to Gore by the Palm Beach officials. That
would have put Gore some 159 votes (352 minus 193)
ahead of Bush, unless Bush could pick up overseas ballots.
The bottom line is that even if one assumes that the
Florida court was trying to be evenhanded, the election's
outcome, under its standardless approach, would have
depended not on who won more real votes, but on who was
"recounting" (interpreting, really) the ballots.
It is also fairly clear that the Florida court's late-afternoon
Dec. 8 decision had set the stage for the Florida courts to
railroad through a Gore victory by Dec. 12 (if Gore were to
pull ahead). This would have left Bush without even a
fraction of the time necessary for a fair hearing on his
evidence that any Gore "lead" was an illusion based on
phony votes -- and no time at all for appeals.
As implemented by Judge Terry Lewis, the Florida
Supreme Court's decision gave short shrift to Bush's basic
right to judicial review of the thousands of disputed
ballot-interpretation decisions made by (among others)
openly partisan Democratic officials. In a series of
late-night rulings hours after the Dec. 8 decision, Judge
Lewis refused to suggest (or hear evidence on) what
chad-counting standard vote-counters should use;
assigned hundreds of untrained counters to plunge into
this world of standardless chad-interpretation, without
even requiring that they be nonpartisan; refused to
require that a record be kept of chad-interpretation
decisions, thereby making appeals virtually impossible;
ignored Bush's request for a recount of those hundreds of
rejected overseas military ballots; and shrugged off claims
that some Gore votes would inevitably be counted twice.
In short, Judge Lewis understood his marching orders:
Damn due process. Full speed ahead. So, it seems, did a
majority of the U.S. Supreme Court. |
