Scott - I will take your post piece by piece. I can't respond to all of it, so part of my response will come later this weekend or next week.
Anyway:
1. "I thought the request had to be done within 3 days of the election (which Al did)."
Section 102.166(4), Fla. Stat. (2000) provides that a request for a manual recount must be filed with the County Canvassing Board before the Board certifies the elections results or within seventy-two hours after the election, whichever occurs later. The last 3 words are key. Of course, as you point out, Gore met the deadline either way. But had he waited until 5 minutes before the certification was filed by each county, the recount request would still have been valid. Also, the Board is not obligated to agree to the recount (it is subject to the Boards "sound discretion" -- a standard which more or less obliges them to proceed with the sampling if the request is brought in the context of a high number of uncounted votes (overvotes/undervotes), especially with the type of tabulation machinery in use in these counties (punch ballots)). In this case, all 4 counties agreed to consider the request by proceeding with the "sampling process" (where they check 1% of the votes and see if it might change the outcome). And then, after the sample was taken, all 4 opted to go forward with a recount, though Dade changed its mind a few times along the way (very odd, and not at all helpful to Gore's position). Volusia, which used different technology (optical scanning, I believe) completed its recount before the certification deadline, which netted votes for Gore.
2. "If you have a link for the FL statutes I will review further (and look myself also). I believe that she had the discretion to accept re-count results based on machine mal-function (which there was not), acts of god or foul play. None of those occurred, so I believe she was within the law. If she acted illegally it should have been an open and shut case against GWB I would think."
I don't have the link -- though I think you can get there through cnn.com and msnbc.com -- but I am now going to quote verbatim from the FSC decision in Palm Beach County Board v. Harris (with some explanatory notes in brackets) -- who, incidentally, voted 7-0 to reverse, indicating that they did think it was an "open and shut" case and that Harris had blown it: "If the manual recount [i.e., the sample of 1% of the ballots] indicates an "error in the vote tabulation which could affect the outcome of the election," the county canvassing board "shall": (a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) manually recount all ballots. Section 102.166(5)(a)-(c), Fla. Stat. (2000) The issue in dispute here is the meaning of the phrase "error in vote tabulation" found in section 102.166(5). The Division opines that an "error in vote tabulation" only means a counting erropr resulting from incorrect election parameters or an error in the vote tabulating software. We disagree. (PARA) The plain language of section 102.166(5) refers to an error in the vote tabulation rather than the vote tabulation system. On its face, the statute does not include any words of limitation; rather it providesa remedy for any type of mistake in tabulating ballots. The Legislature has utilized the phrase "vote tabulation system" and "automatic tabulating equipment" in section 102.166 when it intended to refer to the voting system rather than the vote count. Equating "vote tabulation" with "vote tabulation system" obliterates the distinction created in section 102.166 by the Legislature. (PARA) Sections 101.5614(5) and (6) also support the proposition that the "error in vote tabulation" encompasses more than a mere determination of whether the vote tabulation system is functioning. Section 101.5614(5) provides that "[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board." Conversely, section 101.5614(6) provides that any vote in which the Board cannot discern the intent of the voter must be discarded. Taken together, these sections suggest that "error in the vote tabulation" includes errors in the failure of the voting machinery to read a ballot and not simply errors resulting from the voting machinery. (PARA) Moreover, section 102.141(4), which outlines the Boards's responsibility in the event of a recount, states that the Board "shall examine the counters on the machines or the tabulations of the ballots cast in each precinct in which the office or issue appeared on the ballot and determine whether the returns correctly reflect the votes cast." Section 102.141, Fla. Stat. (2000) (emphasis added). Therefore, an "error in the vote tabulation" includes a discrepancy between the number of votes determined by a voter tabulation system and the number ofvotes determined by a manual count of a sampling of precincts pursuant to section 102.166(4). (PARA) Although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors of machines. For this very reason Florida law provides a human check on both the malfunction of tabulation equipment and error in failing to accurately count the ballots. Thus we find the Division's opinion DE 00-13 regarding the ability of county canvassing boards to authorize a manual recount is contrary to the plain language of the statute." Slip Opinion at pp. 12-14.
A bit later in the same opinion, on Harris decision that she would ignore any returns submitted after the certification deadline: "To disenfranchise electors in an effort to deter Board members [i.e., from filing returns late because of negligence and the like - which the FSC found was the intent of the statutory scheme] as the Secretary in the present case proposes, is unreasonable, unnecessary and violates longstanding law". Slip Opinion at 33-34. The FSC found that her interpretation of when she could accept late filed returns had no basis in the law, and basically punished voters "by proxy" for the delay of canvassing boards, and the fact that the Legislature had enacted two statutes which conflicted.
I disagree also with your statement that there were no more irregularities in Florida (or in the "cherry-picked counties") than anywhere else. In fact, statistics contradict that statement. In the punch ballot counties, the undervote was more than 10 times higher than in optical scanner counties. In addition, in at least 7 optical scanner counties (all of them GOP dominated) partial manual recounts were conducted before the certifiction deadline -- the nature of the machinery made it possible to do this very efficiently, and the total voting population in all 7 of those counties added together was less than the voting population in any 1 of the big 3 (Broward, Palm and Dade). Also, in many optical scanner counties, the voter inserts the "ballot" after voting into a ballot reader -- and the machinery itself rejects any ballot which fails to register a vote, or which registers more than one vote - giving the voter a "second chance" to correct the ballot right then and there, which greatly reduces the percentage of undervotes and overvotes in those counties. So when you say that Gore "cherry picked" those counties where the "irregularities favored him", you miss the point a little - the vast majority of the other counties did not have irregularities at all, and some were not prone to any correction through a recount - because they had already been recounted, or because the machines themselves (the lever pull machines) cannot be recounted. I do think strategically Gore should have requested recounts in all punch ballot counties (and, since the majority of undervotes and undervotes in those counties -- even GOP majority counties -- were concentrated in minority precincts which heavily favored Gore, would probably have benefitted him), but the simple fact is that there is nothing under Florida law (statutory or otherwise) which required him to do that -- and the law actually tends to suggest that the opposite approach is more sensible, because the recount statute is clearly county by county, and there is NO basis for a statewide recount - only 67 county by county recounts, the vast majority of which would not have warranted a manual recount had they undergone the 1% sampling procedure. It is also important to remember that Gore offered to do a statewide recount if both parties would agree to abide by the result without scorched earth litigation, which Bush declined (after all, why agree to anything if you are trying to protect a lead, the election machinery in your brother's state government keeps acting in ways that benefit your litigation strategy, and all you need to do to win is run out the clock).
Last two points for now (I will deal with the Supreme Court decision later this weekend - it was clearly 5-4, and not 7-2, but I promise to explain why I say that next time): First, the reason Gore did not challenge overvotes in his Contest was NOT because he did not think he would gain votes by counting both undervotes and overvotes (clearly, the overvotes greatly weighed in his favor, as we know (i) from recent articles indicating that some 30,000 more overvotes in 7 of the 67 counties coupled Gore with a second candidate than those that coupled Bush with a second candidate, and (ii) from the Lake County post-election review, a heavily GOP county, where the auditing of optical scanner overvotes about a month ago showed a net pickup of 150 or so votes for Gore when they looked at those overvotes where the voter had selected Gore and Write-In, and wrote in "Gore" and where the voters selected Bush and Write In, and wrote in "Bush"). The reason that, in the Contest, they sought undervote review only, was that they were in a race against the clock, because of Harris, the limited time to complete the counts and still have time to meet the Title 3 safe harbor, etc. And the law did not require them to challenge all ballots, only the ones they chose to litigate. They were under no obligation to protect Bush from his own legal strategy. The fact that the 3 biggest counties were all huge population centers (over 1/3 of the State's entire voting population is harbored in those 3 counties) made recounts in those counties much more difficult and time consuming. But here is the key point: The recount they originally asked for in the 4 counties 2 days after the election was a recount of ALL ballots, not just undervotes. If Harris had not improperly interfered, and the Canvassing Boards had done their jobs without interference from ground operatives (such as GOP watchers who, in Palm County, objected to every 6th ballot reviewed by a counter simply to slow the process down, even where the hole was clearly punched through), the original recounts would have been completed well before the December 12 deadline and -- get this -- may have actually legitimized Bush's election by showing him to be the winner. But his legal team was not interested in that -- they had the lead, so they took every step imaginable, from Harris to the paid demonstrators in Dade County, to shut down the recounts before they occurred. As a result, we will only know who really won after the fact. And if you are going to tell me that close calls occur all the time, and that using the mechanism that "favored no-one" was the fairest way to go, my response is that because punch ballot machinery is the most prone to error, and was concetrated in the most Gore leaning counties, the pure machine count did NOT "favor no-one" -- it clearly favored Bush. The whole point of a manual recount is that we do not place machines above humans in exercising judgment and looking at ballots to see what they really say. The law in Florida BEFORE THE ELECTION was that "[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board" -- NOT as determined by the machine (i.e., after humans look at the ballots). The fact that it was close does not suggest that you use a lower standard of care because being more careful is somehow unfair (just because we don't bother to do it when the gap in votes is huge and doing it makes no difference). We knew the machine count was inaccurate -- a manual recount, even where some degree of subjectivity regarding "clear intent" would necessarily be present, would not have resulted in a perfect count, but clearly would have resulted in a more accurate count than the machines, which were demonstrably inaccurate, to a statistically astounding degree in this close an election. The close election is exactly where you SHOULD use a higher standard of care. There is great irony in the fact that the standard of care applicable to a close election for County Council would be higher than that applicable to a close election for President of the USA. IMO, Bush's attempts to prevent a careful review of the ballots (which he could have challenged in court and in Congress, where he had a partisan advantage, if he felt they had been recounted unfairly) was a tactical decision that was not only in disregard of the law and the consitutional bias in favor of respecting the right of votes to be counted, but was, in the end, immoral.
Second and final point -- Baker's statements that the votes had been counted and recounted as many as three or four times began 2 days, not 2 weeks, after the election. It was disingenuous at best, and quite frankly, a poke in the eye to anybody who cares about suffrage and democracy. If the situation had been reversed, that is, Gore holding a slight lead, a state official who was Gore's campaign co-chair interfering with recounts in heavy GOP counties with huge statistical abnormalities, and Gore's lawyers fighting all the way to the US Supreme Court trying to shut it all down, I shudder to think of the adjectives the GOP would have used to describe Gore's efforts - "thief" would have been the least of them.
BTW -- I love the idea of a website where political debate can be had without the ugliness that so often accompanies debates between left wingers and right wingers. Take care.
Mark |
