EXAMINING THE VOTE
From The New York Times
July 15, 2001
How Bush Took Florida: Mining the Overseas Absentee Vote
By DAVID BARSTOW and DON VAN NATTA Jr.
n the morning after Election Day, George W.
Bush held an unofficial lead of 1,784 votes in
Florida, but to his campaign strategists the margin
felt perilously slim. They were right to worry. Within
a week, recounts would erode Mr. Bush's unofficial
lead to just 300 votes.
With the presidency hanging on the outcome in
Florida, the Bush team quickly grasped that the best
hope of ensuring victory was the trove of ballots still
arriving in the mail from Florida residents living
abroad. Over the next 18 days, the Republicans
mounted a legal and public relations campaign to
persuade canvassing boards in Bush strongholds to
waive the state's election laws when counting
overseas absentee ballots.
Their goal was simple: to count the maximum
number of overseas ballots in counties won by Mr.
Bush, particularly those with a high concentration of
military voters, while seeking to disqualify overseas
ballots in counties won by Vice President Al Gore.
A six-month investigation by The New York Times
of this chapter in the closest presidential election in
American history shows that the Republican effort
had a decided impact. Under intense pressure from
the Republicans, Florida officials accepted
hundreds of overseas absentee ballots that failed to
comply with state election laws.
In an analysis of the 2,490 ballots from Americans
living abroad that were counted as legal votes after
Election Day, The Times found 680 questionable votes. Although it is not known for
whom the flawed ballots were cast, four out of five were accepted in counties
carried by Mr. Bush, The Times found. Mr. Bush's final margin in the official total
was 537 votes.
The flawed votes included ballots without postmarks, ballots postmarked after the
election, ballots without witness signatures, ballots mailed from towns and cities
within the United States and even ballots from voters who voted twice. All would
have been disqualified had the state's election laws been strictly enforced.
The Republican push on absentee ballots became an effective counterweight to the
Gore campaign's push for manual recounts in mainly Democratic counties in
southern Florida.
In its investigation, The Times found that these overseas ballots - the only votes that
could legally be received and counted after Election Day - were judged by markedly
different standards, depending on where they were counted.
The unequal treatment of these ballots is at odds with statements by Bush campaign
leaders and by the Florida secretary of state, Katherine Harris, that rules should be
applied uniformly and certainly not changed in the middle of a contested election. It
also conflicts with the equal protection guarantee that the United States Supreme
Court invoked in December when it halted a statewide manual recount and
effectively handed Florida to Mr. Bush.
After being told of The Times's findings, Ari Fleischer, the White House spokesman,
said: ``This election was decided by the voters of Florida a long time ago. And the
nation, the president and all but the most partisan Americans have moved on.''
The Times study found no evidence of vote fraud by either party. In particular, while
some voters admitted in interviews that they had cast illegal ballots after Election
Day, the investigation found no support for the suspicions of Democrats that the
Bush campaign had organized an effort to solicit late votes.
Rather, the Republicans poured their energy into the speedy delivery and liberal
treatment of likely Bush ballots from abroad. In a Tallahassee ``war room'' within
the offices of Ms. Harris, veteran Republican political consultants helped shape the
post-election instructions to county canvassing boards. In Washington, senior Bush
campaign officials urged the Pentagon to accelerate the collection and delivery of
military ballots, and indeed ballots arrived more quickly than in previous elections.
Republicans on the House Armed Services Committee helped the campaign obtain
private contact information for military voters.
Republicans provided their lawyers with a detailed playbook that included
instructions on how to challenge likely Gore votes while fighting for the inclusion of
likely Bush votes. In some counties where Mr. Gore was strong, Bush lawyers
stood by silently while Gore lawyers challenged overseas ballots, even likely Gore
ballots.
The effectiveness of the Republican effort is demonstrated by striking disparities in
how different counties treated ballots with similar defects. For instance, counties
carried by Mr. Gore accepted 2 in 10 ballots that had no evidence they were mailed
on or before Election Day. Counties carried by Mr. Bush accepted 6 in 10 of the
same kinds of ballots. Bush counties were four times as likely as Gore counties to
count ballots lacking witness signatures and addresses.
In reconstructing the story of the absentee vote, The Times collected copies of
virtually all the overseas ballot envelopes that arrived after Election Day and built a
comprehensive database for statistical analysis. The Times also examined thousands
of pages of election documents and canvassing board meeting transcripts and
interviewed more than 300 voters in 43 countries.
Because the ballots themselves are separated from the envelopes containing voter
information, it is impossible to know whether the outcome of the election would
have been different had the flawed ballot envelopes been treated consistently.
The Times asked Gary King, a Harvard expert on voting patterns and statistical
models, what would have happened had the flawed ballots been discarded. He
concluded that there was no way to declare a winner with mathematical certainty
under those circumstances. His best estimate, he said, was that Mr. Bush's margin
would have been reduced to 245 votes. Dr. King estimated that there was only a
slight chance that discarding the questionable ballots would have made Mr. Gore the
winner.
Separate from this investigation, a consortium of newspapers, including The Times,
has hired experts to examine all ballots cast in Florida to see whether the official
count was affected by faulty voting machines. The results are expected later this
summer.
Many of the 680 flawed ballots in the analysis of the overseas envelopes had
multiple defects, so the total number of flaws exceeds the number of defective
ballots. The following questionable ballots were found:
344 ballots with no evidence they were cast on or before Election Day. They had
late, illegible or missing postmarks.
183 ballots with United States postmarks.
96 ballots lacking the required signature or address of a witness.
169 ballots from voters who were not registered, who failed to sign the envelope or
who had not requested a ballot. A request is required by federal law.
5 ballots received after the Nov. 17 deadline.
19 voters cast two ballots, both of which counted.
Canvassing board members struggled to strike a balance between counting as many
votes as possible and safeguarding against fraud. Decisions were difficult,
particularly with ballots that appeared to be from legitimate voters yet did not
comply with the rules. In some cases, board members said they had used common
sense and cited a Florida court decision that gave them some ``latitude of
judgment.'' For example, the boards accepted 87 overseas ballots that arrived
without a postmark a day or two after Election Day, judging that they most likely
had been cast before Nov. 7.
Still, this benefit of the doubt was given to such ballots more than three times as
often in counties carried by Mr. Bush, according to the Times database.
Both parties quickly recognized the importance to Mr. Bush of the uncounted
overseas ballots, especially those from military installations. But the Democrats were
preoccupied, particularly with their pursuit of manual recounts in several heavily
Democratic counties. And their strategy for absentee ballots, which consisted of
challenging as many overseas ballots as possible, backfired after they were accused
of disenfranchising men and women in uniform.
The Republican effort on the absentees, by comparison, was methodical and
unrelenting.
Benjamin L. Ginsberg, national counsel to the Bush campaign, recalled those days
as being ``as hardball a game as any of us had ever been involved in.
``For any given five-minute period, we were confident we were going to hold on to
the lead, and for any given five-minute period we were confident we were going to
lose it all.''
The canvassing board members also have sharp memories of those days. Judge
Anne Kaylor, chairwoman of the Polk County board, said the combination of
Republican pressure and court rulings caused it to count some ballots that would
probably have been considered illegal in past years.
``I think the rules were bent,'' Judge Kaylor, a Democrat, said. ``Technically, they
were not supposed to be accepted. Any canvassing board that says they weren't
under pressure is being less than candid.''
Mr. Ginsberg said, ``We didn't ask anybody to do anything that wasn't in the law as
it existed on Election Day.''
Florida's certified election results, listed on the Florida Department of State's Web
site, show that the Republicans' sense of urgency was justified. Although Mr. Bush
appeared to hold a fluctuating lead throughout the 36 days of recounts, the Web site
shows that without the overseas absentee ballots counted after Election Day, Mr.
Gore would have won Florida by 202 votes, and thus the White House. But no one
knew that until the 36 days were over; by then, it was a historical footnote.
Plotting Strategy To Protect a Lead
By midday on Wednesday, Nov. 8, Mr. Bush's aides were already plotting strategy
on overseas ballots. Their first thoughts were about the potential for fraud, according
to interviews and internal strategy documents. Might Democrats now quietly -
illegally - reach out to overseas supporters, particularly in Israel, and urge them to
send in their ballots? Could the Clinton-Gore administration interfere with the
delivery of ballots from Navy ships, military installations and American embassies?
``The opportunities with absentee ballots via the postal delivery and retention
process could pose a significant threat to the outcome of the election of the United
States,'' Brigham A. McCown, a Bush lawyer, warned in a memorandum to
campaign strategists that week. His concern grew, he said, when he found a
photograph of a smiling Al Gore on a postal union Web site.
Although most of the overseas ballots had already been counted on Election Day,
Florida is among a handful of states that give extra time for ballots to arrive from
around the world. Unlike domestic absentee votes, which must arrive by Election
Day, the deadline for overseas ballots was Nov. 17.
By 4 p.m. the day after the election, the Bush campaign had begun a pre-emptive
strike, faxing a letter to each of Florida's election supervisors. Under Florida law,
candidates and parties can obtain the addresses of overseas voters. But to make it
difficult for Mr. Gore's campaign to track those voters, Bush aides wanted the
supervisors to reject any post-election requests for the identities of voters who had
not yet sent in ballots.
``We believe that such a request could only be made for an illicit, fraudulent and
improper purpose,'' William R. Scherer, state co-chairman of Lawyers for Bush,
wrote.
But elsewhere, the Bush team was itself exploring the legality of late voting - not by
Floridians in Israel but by members of the military, who, according to its internal
memorandums, were ``presumed'' to ``represent conservative electors.''
On Thursday, Nov. 9, Jeff Phillips, veterans' coalition director for the Bush
campaign, sent an e-mail message to Samuel F. Wright, a Republican lawyer and an
expert on overseas military voting. Mr. Phillips asked in the message: ``Can a
service member vote in FL (especially after Nov. 7); i.e., can a sailor on the USS
Tarawa cast a write- in vote November 10?'' In his e-mail response, Mr. Wright
cited Florida law, which makes clear that late voting is illegal.
``It finally came down to us finding out what was legal and doing what we could,''
Mr. Phillips said. ``And if anything was not legal, we didn't do it.''
That same day, Mr. Gore asked that four Democratic counties do manual recounts,
a prospect further endangering Mr. Bush's lead. ``As soon as the Gore people said,
`We want to count all the votes, but only in our counties, with our
Democratic-dominated counting boards doing the counting, without any set
standards, making up new rules of the game after the election,' that was a sign to us
that this was going to be a ballot-by- ballot battle and we could take nothing for
granted,'' Mr. Ginsberg, the Bush campaign counsel, said.
With the terrain shifting so rapidly, Mr. Ginsberg assembled a task force of political
strategists and corporate lawyers to focus exclusively on overseas voters.
To manage the political strategy, the Bush team enlisted J. Warren Tompkins III, the
consultant who had helped Mr. Bush fend off Senator John McCain in the bitter
South Carolina primary. David Aufhauser, a Washington lawyer and Mr.
Tompkins's old friend, was to manage the legal strategy.
``There were two first things of concern,'' Mr. Aufhauser, now general counsel of
the Treasury Department, said. ``One, were military ballots going to be properly
counted? And two, were there overseas ballots that should be disqualified?''
To find out, Mr. Aufhauser and Mr. Tompkins sent lawyers and campaign aides to
election offices in all 67 counties. To the Bush campaign's relief, local election
supervisors had paid little attention to its letter about keeping overseas voter
information confidential. There, lawyers gathered the names, foreign addresses and
political affiliations of every overseas voter. They tracked which ballots had been
returned, and which ones had yet to arrive.
``We wanted to know everything about this group - whether they were military or
civilian, Democrat or Republican,'' Mr. Tompkins said. ``And I'd send the numbers,
constantly, back to Austin.''
The teams made two critical discoveries. First, despite predictions by some
Democrats that 1,000 ballots would arrive from Israel, just a few dozen were
trickling in; ultimately, only 64 arrived.
Far more troubling were reports about military ballots. In county after county, Bush
observers noticed that military ballots were arriving without postmarks.
Under a well-established legal standard in Florida, all overseas ballots must bear
clear evidence they were cast on or before Election Day and mailed from outside
the United States. State law required all overseas ballots to have foreign postmarks.
In addition, a state rule said that such ballots must have been either ``postmarked or
signed and dated'' by Election Day.
But most of the ballots did not have dated signatures because only one of Florida's
67 counties even provided a spot on the ballot for a voter to write a date next to his
or her signature. In past elections, with few exceptions, the boards had routinely
insisted on a postmark as proof of timeliness.
This seemingly obscure postmark standard was suddenly of crucial importance to
the Bush strategists. Hundreds of overseas ballots that they wanted counted met
neither requirement - the envelopes had no postmarks, and the signatures had no
dates.
Not only were ballots coming in without postmarks, the Bush team had also heard
scattered accounts of ballots sitting in mailbags on the decks of Navy ships.
By day's end on Saturday, Nov. 11, the Bush campaign understood that defending
against fraud alone was too limited a strategy. To take full advantage of Mr. Bush's
support in the military, offensive measures would be needed too. And with Mr.
Gore closing the gap in the recounts, Bush strategists said in interviews, they
calculated that they would need a net gain of 1,000 votes among the overseas
ballots to seal victory.
It was an ambitious goal. In 1996, Bob Dole beat Bill Clinton by just 208 votes
among Florida's overseas voters. The Republicans decided they had to make sure
as many military ballots as possible arrived in Florida in time to be counted on Nov.
17.
A Rush to Retrieve Military Ballots
Around the world, on Navy ships and military bases, in embassies and vacation
homes, Florida's overseas voters were transfixed by the unfolding drama. Most
could only watch and wait; by Election Day, they had already voted.
But after Nov. 7, some hurriedly mailed their ballots, unaware or unconcerned that
late voting is illegal.
Aboard the George Washington, an aircraft carrier then in the Adriatic Sea, Michael
J. Kohrt recalled fellow crew members gathering around television sets on the
morning of Nov. 8. ``We saw Florida was deadlocked, and everyone on the ship
said, `Whoa, I have got to get my ballot in,''' he said. ``A lot of guys voted late.''
The Times investigation found a substantial number of people who, like Mr. Kohrt,
knowingly cast their ballots after Election Day. Of the 91 voters interviewed whose
ballots had either missing or late postmarks, 30 acknowledged marking ballots late.
Only four were counted. Mr. Kohrt's vote, which he said was for Mr. Gore, was
among those rejected.
In the days after Nov. 7, both the Postal Service and the Pentagon worked hard to
ensure the timely delivery of absentee ballots to Florida.
``We need to make sure our Sailors have their vote count,'' said a Nov. 10 Navy
e-mail message that urged at least 118 ships to check for any remaining ballots.
The Pentagon soon faced pressure from the Bush campaign. Leading Republicans in
Congress wrote letters and made calls. Mr. Ginsberg, the campaign's chief counsel,
faxed a letter to Defense Secretary William S. Cohen, the only Republican in the
Clinton cabinet, on Nov. 11. ``We fear that, unless those ballots are collected
immediately, they will not be delivered on or before November 17,'' Mr. Ginsberg
wrote.
Robert Tyrer, Mr. Cohen's former chief of staff, said that Mr. Ginsberg, a friend of
Mr. Tyrer's, seemed to be ``laying down a marker'' for the Republicans. But, he
added, the secretary's office was ``determined not to be involved in the politics of
the matter.''
In the end, the vast majority of the ballots - 97 percent - arrived before the Nov. 17
deadline. In previous elections, according to records and interviews, as many as a
third arrived after the 10-day window had closed.
But The Times investigation indicated that the push to get the ballots in quickly only
aggravated a problem that had concerned the Bush camp: 17 percent of military
ballots arrived without postmarks, despite military regulations that require all mail to
be postmarked. There is no evidence that the Pentagon knowingly delivered ballots
cast illegally after Election Day.
In interviews, Pentagon officials could not fully explain why so many ballots were
arriving without postmarks. They noted that a survey conducted after the election
found less than 1 percent of all overseas military mail arrived without a postmark.
But a General Accounting Office study in May found a range of problems with how
the military handled the absentee ballot issue, including inadequate training and
supervision in its voting program. As a result of that and mail problems, the report
said, Florida officials received ballots without postmarks, or witnesses, or even
signatures.
The lack of postmarks made it impossible for canvassing boards to answer the
threshold questions that determined the validity of an overseas vote: Was the ballot
indeed mailed from a foreign country? And was it mailed on or before Election Day?
The lack of postmarks also posed political problems for the Bush strategists. Some
Bush advisers, still fearful of votes from Israel, were preparing to seek strict
enforcement of the postmark standard, according to documents and interviews. The
Bush campaign even dispatched Jim Smith, a former Florida secretary of state, to
emphasize the postmarking rule at a news conference on Nov. 12.
``The privilege to vote abroad comes with the corresponding duty to follow
practices adopted by the State of Florida to assure timely and fair elections,'' Mr.
Smith said at the news conference.
But even as Mr. Smith spoke, Bush strategists were shifting gears. They realized that
unless they could persuade some local election officials to set aside the state's rules
on postmarking, hundreds of ballots from military personnel, a reliable voting bloc,
would not be counted.
In a single phrase of federal law, they found the statutory tool by which the Bush
team would seek to undo Florida's postmarking rules. The phrase was contained in
the Uniformed and Overseas Citizens Absentee Voting Act, a 1986 federal law
intended to make overseas voting easier. One part of the law, a directive to postal
officials, states that overseas ballots ``shall be carried expeditiously and free of
postage.''
Although the law said nothing about postmarks, in the view of Mr. Aufhauser, the
Bush lawyer, those eight words demonstrated that Congress never intended to
require postmarks on overseas military ballots.
The lawyers realized they were putting their faith in an untested legal theory. The
same federal law emphasizes the importance of state election rules.
As a backup, they zeroed in on a 1975 Florida Supreme Court ruling that said as
long as there were no signs of fraud, canvassing boards had some discretion to
accept ballots with minor flaws, like putting a signature in the wrong place or
omitting a witness's address. Mr. Aufhauser decided that the Republicans would try
to push this argument further than it had ever been pushed to get military ballots
counted.
This conflicted with the Bush strategy to thwart manual recounts. In public
statements by James A. Baker III, the former secretary of state leading the Bush
recount team, and in the campaign's legal briefs, the Bush team argued repeatedly
that it was unfair and patently unconstitutional for Mr. Gore to seek liberal recount
standards in Democratic strongholds ``after the game has already been played.''
``It is not fair to change the rules and standards governing the counting or recounting
of votes after it appears that one side has concluded that is the only way to get the
votes it needs,'' Mr. Baker said.
• CONTINUED: How Bush Took Florida: Mining the Overseas Ballots
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