New York Times
July 14, 2001
How Bush Took Florida: Mining the Overseas Absentee Vote (cont.)
evising a Complex Approach to Challenging Ballots
Thanks to a network of local lawyers who had advised his
brother Jeb, the governor of Florida, on judicial appointments, Mr. Bush
had a ready source of politically connected legal talent to argue on his
behalf before the 67 county canvassing boards. The campaign's preparations
were meticulous. Six days before county officials were to begin examining
the overseas ballots, Bush advisers were sending out detailed instructions
on the legal intricacies of overseas voting. There were daily conference
calls, spreadsheets to track ballots in each county, a phone number for emergency
advice. One group of Bush lawyers christened itself the Overseas Absentee
Ballot Task Force and even had its own letterhead.
Mr. Gore's top aides, preoccupied by recounts in South Florida, were poorly
prepared by comparison. The Gore team, for instance, wanted its representatives
in each county to estimate how many overseas ballots had flaws open to challenge.
By the night before the counting, they had estimates from 10 of 67 counties.
Having assumed that Mr. Bush would win easily among overseas voters, the
Gore strategy was predicated on knocking out overseas votes and fighting
for the strictest readings of state law. Never mind Mr. Gore's repeated pledge
to count every vote;
his strategists calculated simply that the fewer overseas ballots counted
the better.
It was left to Mark Herron, a Tallahassee election law specialist, to teach
the Gore legal recruits the basics of overseas ballots, and on Wednesday,
Nov. 15, Mr. Herron circulated a five-page memorandum that listed legal grounds
for protesting overseas ballots when the canvassing boards reviewed them
just two days later. Within a day, however, the Herron memorandum had fallen
into the hands of the Bush lawyers, who instantly recognized its political
value and later used it to discredit the Democrats' strategy on overseas
ballots as an effort to disenfranchise voters.
``We were losing the public relations battle until we got the break with
that stupid memo,'' said Mr. Tompkins, the senior Bush strategist.
But the Bush lawyers had a strategy memorandum of their own, recently obtained
by The Times, that also set out detailed instructions for challenging overseas
ballots. The 52-page document included all the information Bush lawyers might
need to make their case before the canvassing boards, including a copy of
Ms. Harris's Nov. 13 statement.
Unlike the single-minded approach of the Gore memorandum, the Bush instructions
set forth a more adaptable, tactical approach aimed at achieving the largest
possible net gain from overseas voters. Specifically, the Bush lawyers were
told how to challenge ``illegal'' civilian votes that they assumed would
be for Mr. Gore and also how to defend equally defective military ballots,
the document shows.
The clearest illustration of the differing strategies was in the pre-printed
protest forms that each campaign prepared for use with the canvassing boards
as they scrutinized each ballot envelope for legal defects.
The Gore instructions included one all- purpose protest form; the Bush
instructions included two. The first Bush form protested defective ballots
just as the Gore form did and listed many of the same potential flaws --
missing witnesses, late postmarks, domestic postmarks. In an accompanying
``letter of instruction'' the Bush lawyers were told that it was essential
to check for defects and that there was to be no flexibility on the question
of missing postmarks. To be valid, the letter said, ballots ``must have''
a military or foreign postmark.
The second form, which was used to protest the exclusion of military ballots,
demanded that canvassing boards count military ballots that arrived without
postmarks, or with illegible postmarks, or even in some cases with United
States postmarks.
``To the extent that Florida purports to require that envelopes contain
postmarks,'' the instructions stated, ``then with respect to members of the
military overseas, Florida law is inconsistent with - and pre- empted by
- federal law requiring the expeditious delivery of overseas ballots.''
In addition, the Bush instructions contended repeatedly that civilian ballots
were not entitled to the same leeway as military ballots - a distinction
not found in either Florida election law or in the federal law that governs
overseas voting. One example involved overseas ballots delivered by Fed-Ex
or other commercial express mail services. ``Late shipment by civilians through
such channels raises reasonable questions about the legitimacy of the ballot,''
the instructions said.
Asked why they prepared a protest form almost identical to the one they had
criticized Mr. Gore for using, Mr. Ginsberg said, ``I'm not sure it was operative
still when people went into the counting boards.''
Questioning Civilian Ballots, Defending Military Ballots
On Friday, Nov. 17, county officials across the state began counting the
overseas votes, the only ballots not yet examined by man or machine.
By then Mr. Bush's unofficial 1,784-vote lead had been reduced to 300. That
very day, the Florida Supreme Court had barred Ms. Harris from certifying
any final results until the justices, all Democratic appointees, decided
whether to allow hand recounts to proceed in South Florida.
The Bush lawyers involved in overseas ballots gave different responses to
whether they approached that Friday with a two- tiered strategy. Mr. Ginsberg
acknowledged that they had fought for military ballots while opposing ballots
from civilians. But Mr. Aufhauser said, ``There was no such strategy to do
something in Palm Beach that we did not do in the Panhandle.''
But a review of the transcripts, minutes and recordings of canvassing board
meetings shows otherwise. The records reveal example after example of Bush
lawyers' employing one set of arguments in counties where Mr. Gore was strong
and another in counties carried by Mr. Bush.
County by county, and sometimes ballot by ballot, they tailored their arguments
in ways that maximized Mr. Bush's support among overseas voters. They frequently
questioned civilian ballots, for example, while defending military ballots
with the same legal defects.
In Bush strongholds they pleaded with election officials to ignore Florida's
election rules. They ridiculed Gore lawyers for raising concerns about fraud,
while making eloquent speeches about the voting rights of men and women defending
the nation's interests in remote and dangerous locations.
``If they catch a bullet, or fragment from a terrorist bomb, that fragment
does not have any postmark or registration of any kind,'' Fred Tarrant, a
Republican City Council member from Naples, Fla., told the board in Collier
County, a conservative outpost in southwest Florida.
Making frequent and effective use of the protest form they had developed
to defend military ballots without postmarks, the Bush lawyers succeeded
in persuading three counties in the western tip of the Panhandle, all of
them Bush strongholds, to disregard Florida's postmark rules.
The three counties, Escambia, Okaloosa and Santa Rosa, counted 72 overseas
ballots without postmarks, 63 from members of the military.
``We had never done it before,'' Pat Hollarn, the veteran Okaloosa County
supervisor, said in an interview.
In Santa Rosa County, Doug Wilkes, the election supervisor, tried to argue
that ballots without postmarks should be rejected. ``The board always stuck
to the rules, to the letter of the law of the State of Florida,'' he told
his two fellow canvassing board members that Friday.
He was outvoted.
By contrast, in Democratic strongholds, Bush lawyers simultaneously worked
to exclude as many likely Gore votes as possible.
There they spoke not of the right to vote but of the importance of following
the letter of state election rules. The ``fundamental'' role of election
officials is to detect ``anything that could affect the honesty or integrity
of the election,'' Craig Burkhardt, a Bush lawyer, told the Broward County
canvassing board. At one point, Mr. Burkhardt grew so angry insisting on
his right to scrutinize voter signatures that a board member told him, ``Calm
down, chill out.''
In Broward and in other Gore strongholds, Bush lawyers questioned scores
of ballots, almost always from civilian Democrats but occasionally from members
of the military. They objected to the slightest of flaws, including partial
addresses of witnesses, illegible witness signatures and slight variations
in voter signatures. In at least six cases, the Bush lawyers relied on the
Republican protest form that was barely distinguishable from the infamous
protest form designed by Mr. Herron, the Gore election law specialist.
Mr. Aufhauser said the Bush team had not encouraged such challenges. ``You
have field commanders, and they have to rely on the people in the field,''
he said. ``In the 67 counties, I think we had substantial compliance with
the directive that we be consistent.''
But many of the challenges were consistent with the instructions provided
by Mr. Aufhauser. The Bush lawyers, for example, followed the campaign's
guidance in selectively challenging federal write-in ballots.
These were special last-resort ballots to be used only when a voter's regular
state ballot failed to turn up in the mail. Under federal law, they can be
used only after the voter has first made a request for a regular ballot at
least 30 days before the election.
In Bush counties, Republican lawyers argued that write-in ballots from military
voters should be counted even when there was no record of a request. But
in Broward County, where at least 119 federal write-in ballots arrived,
Republican lawyers took the opposite position. ``Have we checked to see whether
they've complied with the requirements of having requested 30 days prior?''
a Bush lawyer demanded. Eighty-one of them were rejected.
When ballots were defended, they were from military voters. ``I cannot believe
that our service boys, fighting hard overseas, that their ballots would be
disqualified,'' Mr. McCown, the Bush lawyer, told the Palm Beach County
canvassing board.
``All right,'' Judge Charles E. Burton, the board chairman, replied dryly.
``We will file a protest and arrange for a violin.''
Later, in their reports to senior Bush aides, the lawyers listed rejected
ballots under two categories, ``military'' and ``nonmilitary,'' and their
differing approaches to civilian and military ballots are reflected by this
finding: While canvassing boards accepted 30 percent of the flawed civilian
ballots, they counted 41 percent of the flawed military ballots, according
to The Times's database.
The duality of the Bush strategy was demonstrated in another way. In three
South Florida counties, Miami-Dade, Broward and Palm Beach, boards rejected
as illegal 362 of 572 overseas ballots that Friday. Most - including many
military ballots - were thrown out without a word of protest from Mr. Bush's
lawyers.
Some of their work was done by the Gore lawyers, who, true to their strategy,
challenged hundreds of overseas ballots with little discrimination. They
objected to ballots from Democrats, Republicans, civilians, military personnel
- even in counties where Mr. Gore actually beat Mr. Bush among overseas voters.
Mixed Messages Concerning Postmarks and Patriotism
The Bush campaign's patriotic appeals were more persuasive in north Florida,
home to several large military bases. In Panhandle communities like Pensacola,
Fort Walton Beach and Jacksonville, almost everyone knows someone in the
military. The deputy election supervisor in Jacksonville, a former Navy pilot,
has a photograph above his desk of him in a fighter jet. In Fort Walton Beach,
Ms. Hollarn has an office full of military memorabilia. For them and their
fellow election officials, rejecting a single military vote was personally
painful.
``Just heartbreaking,'' Ms. Hollarn said.
It was also politically difficult.
The Panhandle canvassing boards, made up mostly of elected officials, reflected
the conservative, pro-military politics of their counties, and rejecting
Bush votes - particularly those from the military - did not endear them to
most of their constituents.
``Shame on Okaloosa County, on Florida and on you,'' a mother of three military
sons wrote to Ms. Hollarn after the county rejected a handful of military
ballots.
Ms. Hollarn, a staunch Republican and a stickler for rules, opted to accept
ballots with missing postmarks, but only if they arrived by Nov. 13, six
days after the election. It seemed only common sense, she said, to assume
that these ballots were cast before Election Day, even if they did not comply
with the letter of the law.
``You have no idea the soul-searching, and case-law-searching, that myself,
my attorney and the canvassing board went through to come up with our final
decision,'' Ms. Hollarn wrote in an e-mail response to the angry mother.
For nearly two decades, she added, her canvassing board had rejected ballots
with late or missing postmarks without any fuss.
Other Panhandle canvassing boards held the line on counting ballots with
missing postmarks. ``What would prevent an elector overseas from voting after
the date of the election?'' asked Rick Mullaney, a member of the Duval County
canvassing board, which initially voted to reject such ballots.
But others, like the Escambia County canvassing board, accepted the Bush
campaign's argument that federal law trumps state law. ``I'm not a great
conflict-of-law scholar or anything,'' Judge Thomas E. Johnson, the canvassing
board chairman, worried. ``Come on, I need some help here.''
The result was unequal treatment of ballots with the same flaws. While Bush
counties accepted 70 of 109 ballots that arrived without postmarks within
two days of the election, Gore counties accepted 17 of 63 such ballots.
In Alachua County, which was carried by Mr. Gore, the canvassing board's
insistence on postmarks prevented it from counting the ballot of Jeff Livingston,
a staff sergeant at an Air Force base in England who acknowledged voting
for Mr. Bush after the election. His ballot, missing a postmark, arrived
on Nov. 13, just three days after he dropped it off at the base post office.
Under Ms. Hollarn's modified standards, his ballot would have been counted
had it arrived in Okaloosa County.
In a climate of rampant confusion over how to judge overseas ballots, some
election officials pointed fingers at Ms. Harris, saying she had done little
to bring clarity or consistency to the application of Florida's overseas
ballot rules.
The issue was one Ms. Harris was familiar with. In 1999 she ordered each
of Florida's counties to enforce newly tightened absentee ballot rules in
a uniform manner. She warned that ``differing treatment would no doubt
disenfranchise some voters simply based on where they live in violation of
federal and state law.''
Beyond missing postmarks, canvassing boards were confronted with the question
of what to do with more than 300 ballots that arrived after the election
with domestic postmarks. Many were postmarked in military towns like Norfolk,
Va., or San Diego.
And dozens of these voters acknowledged that they were in fact inside the
United States on Election Day.
Their ballots were plainly illegal under Florida law, which requires all
absentee voters inside the United States and its territories to get their
ballots in by Election Day.
Most canvassing board members knew next to nothing about the workings of
the military mail. The Bush lawyers, some citing their own military backgrounds,
had a ready explanation for all the military ballots with United States
postmarks. They told boards that mail for overseas military members was routinely
postmarked when it arrived in this country.
One supervisor who checked with Ms. Harris's office said he had received
similar assurances.
According to mail officials, those assurances were wrong.
Military mail is postmarked at the point of origin - a ship or a base. Then,
as with all international mail, it enters the United States only through
special processing centers where mail is subject to customs inspections,
but not postmarking.
Those centers, postal officials said, are not even equipped with postmarking
machines.
Yet based on the faulty information, canvassing boards accepted dozens of
ballots that arrived after the election from military voters stationed inside
the United States.
And when the counting ended in the early hours of Nov. 18, Mr. Bush had gained
1,380 votes to Mr. Gore's 750 votes.
But Mr. Bush's strategists wanted even more.
Thanksgiving Reprieve for Rejected Votes
Hours after the last overseas absentee ballot was counted, the Bush campaign
unleashed a full-scale legal and public relations offensive with a single
aim: persuading selected Bush counties to reconsider hundreds of overseas
military ballots rejected the night before.
The public relations campaign began when Gov. Marc Racicot of Montana, a
Bush supporter, said that Democratic lawyers had ``gone to war'' against
military voters.
Gen. H. Norman Schwarzkopf called it ``a very sad day in our country.'' Robert
Novak, the conservative newspaper columnist, called the Herron memorandum
a ``quickie guide for tossing out the serviceman's vote.''
The candidate himself took up the theme, calling on election officials to
count more military ballots.
Almost immediately, the Democrats were in full retreat.
On Sunday, Nov. 19, Mr. Gore's running mate, Joseph I. Lieberman, appeared
on the NBC program ``Meet the Press.'' Faced with a barrage of aggressive
questions, he called on Florida's canvassing boards to reconsider their rejection
of military ballots. The next day, the attorney general of Florida, a Democrat,
said that local officials should ``immediately revisit this issue.''
This extraordinary political reversal, combined that week with new Republican
lawsuits that asked 14 counties to reconsider rejected ballots, helped open
the door for Mr. Bush to win still more absentee votes. A Democratic lawyer,
Mitchell Berger, later referred to the additional Bush votes as ``the
Thanksgiving stuffing,'' a label that stuck.
As a legal matter, the lawsuits were a failure; not a single judge agreed
with the Bush campaign's argument that Florida's postmarking requirements
were invalid. A federal judge in Pensacola ordered canvassing boards to
reconsider several hundred federal write-in ballots, but his ruling came
too late to affect the final results.
Bush lawyers found their most persuasive argument in a Florida Supreme Court
ruling on Tuesday of that week - a decision that actually favored his opponent.
In an order that allowed manual recounts to resume, the justices declared
that the will of the voter should take precedence over ``hyper-technical
reliance upon statutory provisions.''
Even as their colleagues appealed the ruling to the United States Supreme
Court, Republican lawyers adopted the term ``hyper-technical'' as a rallying
cry, demanding that local officials overlook a broad range of legal flaws.
The Republicans had one other weapon in their public relations arsenal. They
enlisted Republican members of the House Armed Services Committee, who used
their influence with the Pentagon to help the Bush campaign contact military
voters whose ballots had been rejected.
By the end of the week, canvassing boards in about a dozen Republican-leaning
counties had reconvened for a second round of counting. In each place,
longstanding election rules were bent and even ignored. Boards counted ballots
postmarked as many as seven days after the election, including some from
within the United States. They counted two ballots sent by fax. Officials
in Santa Rosa County even counted five ballots that arrived after the Nov.
17 deadline. Again and again, election officials crossed out the words ``REJECTED
AS ILLEGAL'' that had been stamped on ballot envelopes.
In all, over the Thanksgiving week, the counties accepted 288 ballots that
they had rejected days earlier.
In recent interviews, board members said they decided to meet again for a
variety of reasons, ranging from intense pressure from their constituents
to the specter of the Republicans' lawsuits, which had named individual members
as defendants.
Just as Mr. Gore never sought manual recounts in Republican strongholds,
Mr. Bush did not request a second look at overseas ballots in large Gore
counties, like Miami-Dade and Broward, where 346 overseas ballots, including
164 from the military, were rejected and never given a second look. Instead,
the Republicans fought pitched battles in smaller counties, like Pasco, where
they had a better chance of picking up votes.
``It looks to me like we've got a lot of pressure here,'' Judge Robert P.
Cole, chairman of the Pasco board, said as he faced a throng of cheering
Republicans and more than a dozen Bush representatives. ``And to be honest
with you, you know, I don't think this board should respond to that kind
of pressure.''
Not a single Gore official bothered to attend the meeting.
``We felt our presence was not going to change what the canvassing board
was going to do,'' said Michael Cox, then the chairman of the Pasco County
Democratic Party. Mr. Cox added that the hour's drive from his home to the
county building on a Sunday did not seem worth the effort. ``We were tired
of it,'' he said.
Pasco County added 19 votes, giving Mr. Bush a net gain of 6.
There were other pressures exerted, too. A Republican lawyer told some canvassing
board members that they faced federal prosecution and jail time if they persisted
in rejecting overseas ballots. ``Disallowing these ballots would violate
federal law, both in letter and spirit, and would subject the person so excluding
these ballots to criminal sanctions,'' Edward Fleming, a Bush lawyer, wrote
to officials in Santa Rosa County. The county accepted 38 of the 49 ballots
it had previously rejected.
To give overseas residents plenty of time to vote, Florida officials mail
out both a preliminary version of the absentee ballot and then, after the
primaries, a final version. Voters are instructed to send in both, but the
preliminary ballot is discarded if the final ballot arrives in time to be
counted.
Yet for 19 voters - 15 of them Republican - Duval County election officials
counted both ballots. Officials said it was a mistake, the product of long
hours and the intense pressure to count every possible ballot.
One of the double voters, Nicholas Challen, 40, a senior chief petty officer
in the Navy who cast his second vote from Jacksonville on Election Day, reacted
with jubilation when told that both of his votes counted. He raised both
arms as if he had just scored a touchdown and savored the two votes he had
delivered to George W. Bush.
``Yes!'' he said, beaming.
When it was all over, the 14 counties involved in the ``Thanksgiving stuffing''
effort had given Mr. Bush a net gain of 109 votes. Overall, the overseas
ballots provided Mr. Bush with a net gain of 739 votes over Mr. Gore. The
final margin fell short of the Republicans' 1,000-vote goal.
But it was enough.
Supreme Court S
teps In,
But Not on Absentee Votes
On Sunday, Nov. 26, while some Bush counties were counting a handful of rejected
overseas ballots, the canvassing board in Palm Beach County frantically raced
to finish its manual recount of nearly a half- million ballot
s. The board
was trying to meet a 5 p.m. deadline for counties to submit official vote
totals. By 1 p.m., it was clear to Mr. Burton, the canvassing board chairman,
that Palm Beach County would miss the deadline. On national television, Mr.
Burton pleaded for more time.
Inside Ms. Harris's war room, aides debated whether to grant an extension.
Ms. Harris refused to budge. ``Katherine's job,'' said Mr. Stipanovich, the
Republican consultant advising Ms. Harris, ``was to bring this election in
for a landing.''
When Palm Beach County finally concluded its recount, two hours after the
deadline,
Mr. Gore had picked up 176 votes. Ms. Harris refused to include those votes
in the
final certified total, which showed Mr. Bush winning by 537 votes.
``In the end,'' Mr. Stipanovich said, ``the Palm Beach vote didn't matter.''
But it might have made a difference, if 680 flawed overseas ballots had not
been included in her official returns.
Even before Ms. Harris announced the final results, the Gore campaign had
decided to formally contest Mr. Bush's victory in a lawsuit. One important
question, though, was whether to challenge the overseas ballots. Campaign
strategists tried to persuade Mr. Gore to do just that, saying it would allow
Democratic lawyers to argue that the Republicans had benefited from the unequal
treatment of absentee ballots.
There was another potential benefit. Under Florida law, if the number of
improper absentee ballots exceeds the margin of victory, a judge can, under
some circumstances, disqualify all absentee ballots arriving after the election
and base the results on only those ballots cast and received by Election
Day. On the basis of the final official tally, that would have had Mr. Gore
winning by 202 votes.
Mr. Gore rejected his aides' advice.
Joe Sandler, who was the Democratic National Committee's general counsel,
recalled how Mr. Gore explained his decision. ``I can give you his exact
words: `If I won this thing by a handful of military ballots, I would be
hounded by Republicans and the press every day of my presidency and it wouldn't
be worth having.'''
As the election contest wound its way through the courts, the Republicans
pressed their argument that the manual recounts violated the Constitution's
equal protection clause. In the United States Supreme Court, this contention
provoked searching debate among the justices and the lawyers about the lack
of consistent standards for counting dimpled ballots and hanging chads, and
in its decision giving the election to George W. Bush, the court concluded
that uniform treatment was a matter of fundamental fairness.
``Having once granted the right to vote on equal terms,'' the majority wrote,
``the State may not, by later arbitrary and disparate treatment, value one
person's vote over that of another.''
The court did not consider the varying treatment of military and civilian
votes. It did not address the unequal treatment of the 2,490 ballots that
finally determined the election's outcome. Those issues were never raised.
|