5 VOTES: Understanding Florida, 2000:
Here's a game to play with your favorite winger:
Q: What was the real margin in Florida 2000, before the U.S. Supreme Court sElected the pResident?
A: 5 votes.
Rick Hasen, of ElectionLawBlog, has a wonderfully concise summary of Gore v. Harris and the subsequent Bush v. Gore litigation that ultimately determined the end of the 2000 election. He writes in A Critical Guide to Bush v. Gore Scholarship, 7 Annual Review of Political Science 297 (2004):
A BRIEF BACKGROUND ON BUSH V. GORE
In the days before the 2000 election, everyone recognized that George W. Bush was locked in an extremely close race with Al Gore. In fact, the election was so close that the final outcome depended on the results in Florida, where the initial count showed Bush leading by 1784 votes out of millions of votes cast in the state.
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Florida law provided for an automatic machine recount of the votes in such a close election, and while those recounts occurred, analysts examined more closely both the voting technology and ballot forms used in various Florida counties. Many previously ignored problems with election administration came to light as a result of the controversy. For example, Democrats focused on the "butterfly ballot" used in Palm Beach County, a ballot that listed candidates for president on two pages facing each other with a punch-card vote to be cast along the ballot's spine. Democrats claimed that ballot design made it unduly likely that voters would cast votes for someone other than their preferred candidate. Reform Party candidate Pat Buchanan received 3704 votes in Palm Beach County, nearly 2700 more than he received in any of Florida's other counties; in addition, ~19,000 ballots were thrown out as "overvotes" (ballots containing votes for more than one presidential candidate).
As the automatic recounts continued, Gore filed an election "protest" asking for a manual recount of the vote in four counties, three of which used punch cards. When it seemed the recounts could not be done in time to meet state deadlines, Gore sought an extension of time for the manual recounts; Republicans argued against the extension and argued that the law did not allow for manual recounts absent a machine error in counting the votes. The Florida Supreme Court issued an opinion allowing the recounts and extending the time to complete them (Palm Beach County Canvassing Board v. Harris).
Bush appealed the decision to the U.S. Supreme Court. He contended that the Florida Supreme Court's opinion violated Article II of the Constitution, which provides that "[e]ach state shall appoint, in such manner as the legislature thereof may direct, a number of electors...." Bush argued that the Florida opinion was in essence "new law" and therefore constituted the choosing of electors in a manner other than that directed by the Florida legislature. The Supreme Court issued a brief, unanimous, per curiam (unsigned) opinion remanding the case to the Florida Supreme Court for clarification as to whether the opinion was consistent with the Florida legislature's rules for choosing electors or was potentially in violation of Article II.
After the Florida secretary of state certified Florida's electoral votes in favor of Bush, Gore filed a separate election "contest," asking for a selective manual recount of nearly 10,000 undervotes from Miami-Dade County and ~4000 votes set aside in Palm Beach County where their legality was in dispute. (Undervotes are ballots that fail to record a valid vote for any candidate.) The trial court held that Gore failed to meet the statutory standard for a contest, and Gore appealed to the Florida Supreme Court.
The Florida Supreme Court, in a 4--3 vote, reversed the trial court. The court held that the trial court had applied the wrong legal standards in judging the merits of Gore's claim (Gore v. Harris). The Florida Supreme Court ordered that certain recounts, conducted after the deadline it had set in an earlier case, be included in the totals and that a manual recount of undervotes go forward. The court held that all Florida counties---and not just the counties singled out by Gore---had to conduct manual recounts of the undervotes.
The court further held that in examining the undervotes to determine whether the ballots indeed contained a valid vote for a presidential candidate, the counters should use a "clear intent of the voter" standard, as indicated in Florida statutes. The court failed to be more specific, perhaps out of fear that a more specific standard would violate the U.S. Supreme Court's understanding of Article II of the U.S. Constitution expressed in the Harris opinion (Dershowitz 2001, p. 45).
While a state court judge organized the recount process, Bush filed a petition for a writ of certiorari and a stay in the U.S. Supreme Court. As the recounts began on Saturday, December 9, the Supreme Court, by a 5--4 vote, stayed the Florida Supreme Court's order, thereby suspending the recount.
What was the "standard of review" argument from the Florida Supreme Court? From the decision, Gore v. Harris, No. SC00-2431, slip op. at 13-14 (Fla. Dec. 8, 2000):
[pg 13] A. The Trial Court's Standard of Review
The Florida Election Code sets forth a two-pronged system for challenging vote returns and election procedures. The "protest" and "contest" provisions are distinct proceedings. A protest proceeding is filed with the County Canvassing Board and addresses the validity of the vote returns. The relief that may be granted includes a manual recount. The Canvassing Board is a neutral ministerial body. See Morse v. Dade County Canvassing Board, 456 So. 2d 1314 (Fla. 3d DCA 1984). A contest proceeding, on the other hand, is filed in circuit court and addresses the validity of the election itself. Relief that may be granted is varied and can be extensive. No appellate relationship exists between a "protest" and a "contest"; a protest is not a prerequisite for a contest. Cf. Flack v. Carter, 392 So. 2d 37 (Fla. 1st DCA 1980) (holding that an election protest under section 102.166 was not a condition precedent to an election contest under section 102.168). Moreover, the trial court in the contest action does not sit as an appellate court over the decisions of the Canvassing Board. Accordingly, while the Board's actions concerning the elections process may constitute evidence in a contest proceeding, the Board's decisions are not to be accorded the highly deferential "abuse of discretion" standard of review during a contest proceeding.
In the present case, the trial court erroneously applied an appellate abuse of discretion standard to the Boards' decisions. The trial court's oral order reads in relevant part:
The local boards have been given broad discretion
which no Court may overrule, absent a clear abuse of
discretion.
The trial court further noted: "The court further finds that the Dade Canvassing Board did not abuse its discretion. . . . The Palm Beach County Board did not abuse its discretion in its review and recounting process." In applying the abuse of discretion standard of review to the Boards' actions, the trial court relinquished an improper degree of its own authority to the Boards. This was error.
The Florida Supreme Court then moved on to the proposed remedy: a statewide count of all "undervotes", reasoning that only a statewide count of all votes would be the proper remedy.
Bush argued to the U.S. Supreme Court that the Legislature has final say and the Florida Supreme Court cannot "create new law" for the outcome of the election. In this case, when Bush said "creating new law" he was refering to the FSC's providision of a court-ordered remedy as required by statute. This belies a staggering incomprehension of the legal system: legislatures enact statutes and when statutes conflict, are ambiguous, or do not speak to an specific set of circumstances presented in litigation, courts apply the statutes to the situation. Bush's theory that a court should not create "new laws" is non-sensical.
The Florida Supreme Court, justifiably ignoring this absurdity, instead looked at the Legislature's instructions: the "protest" and "contest" statutes, as well as the Legislature's statements about where authority resides:
[p 17-19] Pursuant to the authority extended by the United States Constitution, in section 103.011, Florida Statutes (2000), the Legislature has expressly vested in the citizens of the State of Florida the right to select the electors for President and Vice President of the United States:
Electors of President and Vice President, known as
presidential electors, shall be elected on the first Tuesday
after the first Monday in November of each year the
number of which is a multiple of 4. Votes cast for the
actual candidates for President and Vice President shall
be counted as votes cast for the presidential electors
supporting such candidates. The Department of State
shall certify as elected the presidential electors of the
candidates for President and Vice President who receive
the highest number of votes.
Id. In so doing, the Legislature has placed the election of presidential electors squarely in the hands of Florida's voters under the general election laws of Florida.11 Hence, the Legislature has expressly recognized the will of the people of Florida as the guiding principle for the selection of all elected officials in the State of Florida, whether they be county commissioners or presidential electors.
When an election contest is filed under section 102.168, Florida Statutes (2000), the contest statute charges trial courts to:
fashion such orders as he or she deems necessary to
ensure that each allegation in the complaint is
investigated, examined, or checked, to prevent or correct
any alleged wrong, and to provide any relief appropriate
under such circumstances.
Id. (emphasis added). Through this statute, the Legislature has granted trial courts broad authority to resolve election disputes and fashion appropriate relief. In turn, this Court, consistent with legislative policy, has pointed to the "will of the voters" as the primary guiding principle to be utilized by trial courts in resolving election contests:
[T]he real parties in interest here, not in the legal sense
but in realistic terms, are the voters. They are possessed
of the ultimate interest and it is they whom we must give
primary consideration. The contestants have direct
interests certainly, but the office they seek is one of high
public service and of utmost importance to the people,
thus subordinating their interests to that of the people.
Ours is a government of, by and for the people. Our
federal and state constitutions guarantee the right of the
people to take an active part in the process of that
government, which for most of our citizens means
participation via the election process. The right to vote
is the right to participate; it is also the right to speak, but
more importantly the right to be heard.
Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975) (emphasis added). For example, the Legislature has mandated that no vote shall be ignored "if there is a clear indication of the intent of the voter" on the ballot, unless it is "impossible to determine the elector's choice . . . ." § 101.5614(5)-(6) Fla. Stat. (2000). Section 102.166(7), Florida Statutes (2000), also provides that the focus of any manual examination of a ballot shall be to determine the voter's intent. The clear message from this legislative policy is that every citizen's vote be counted whenever possible, whether in an election for a local commissioner or an election for President of the United States.12
Thus, the Florida Supreme Court arrived at "the will of the voter" as the appropriate standard. Faced with a state-wide election, it reasoned that the only fair remedy would be one that ascertained the will of all Florida voters by a single standard: examination of under-votes in all Florida counties.
Their relevant conclusions, from pages 4-5:
For the reasons stated in this opinion, we find that the trial court erred as a matter of law in not including (1) the 215 net votes for Gore identified by the Palm Beach County Canvassing Board 6 and (2) in not including the 168 net votes for Gore identified in a partial recount by the Miami-Dade County Canvassing Board. . . . . Lastly, we find the trial court erred as a matter of law in (5) refusing to examine the approximately 9000 additional Miami-Dade ballots placed in evidence, which have never been examined manually.
This took the margin between the two candidates from the 537 certified by Ms. Harris to 154, with approximately 9000 NEVER-EXAMINED ballots in Miami-Dade left to be counted (site of the violent "Brooks Brothers Riot" staged by GOP congressional staffers to intimidate the M-D Cty Bd of Elections into prematurely halting their re-count). In addition, there were tens of thousands of other under-vote ballots around the state that would also be recounted under the Florida Supreme Court's Order of December 8.
Media recounts in Miami-Dade determined that there were an additional net 149 votes for Gore in the 9000 previously-unexamined ballots. That takes the margin to 5 votes. 5 votes.
Did you know it was that close? 5 votes.
The illegal, thuggish, naked-power-grab Republican Riot stopped the Official Miami-Dade County recount - a recount that would have made the margin... 5 votes. Odd that in the end, it was a different 5 votes that controlled the White House.
What if SCOTUS had let the Florida Supreme Court Order for a statewide under-vote recount occur? The results of the other post-election under-vote recounts by the media provide the answer. The application of a single uniform standard to both punch-card and optical-scan ballots in a state-wide recount scenario would have resulted in a Gore win, REGARDLESS OF THE STANDARD. See Democrats.com's "Gore Won Florida" page for more detailed discussion of the standards, http://democrats.com/display.cfm?id=181%20 .
Overvotes?
As the lone dissenter to the Gore v. Harris decision noted, there is no provision in the Florida Supreme Court December 8, 2000, Order for "over-votes". If the majority felt it reasonable that a ballot-counting-machine could make an error on an undervote, it should be equally reasonable that errors were made among the over-votes. It is probable that the majority was, by December 8, thinking only of punch-card ballots and their "chads". In the context of punch-card ballots, undervotes are easy to envision as lawful votes: pregnant, dimpled, or hanging chads that were not registered by the antiquated machines. With an undervote, it is reasonable to suppose that there may be an unregistered vote on the ballot: after all, the voter DID go to the polls, presumably they did SOMETHING in the voting booth, and that SOMETHING may have left evidence of intent. An overvote on a punch-card ballot, by contrast, is one where there are two or more punched chads and no way to choose between them: examining such ballots for "voter intent" seems on its face a futile exercise. Yet many counties in Florida used optical-scan ballots where discerning intent on overvotes is quite simple; the Courts' failure to consider over-votes was thus a failure of imagination.
Unsuspected by most observers at the time, overvotes actually represented the vast majority of uncounted ballots: Gore would have picked up over 45,000 votes from a statewide recount of overvotes.
Intent Of The Voter: Who Did Floridians Actually Intend To Elect?
Apart from the specifics of the litigation and what COULD have been acheived through under-vote recounts, it's also clear what else actually happened on election day. Although both Democrats and Republicans claim to be victims of fraud or circumstance, these disputed votes tilt overwhelmingly to Democrats (again, Democrats.com):
It is impossible to quantify most of these categories, but we can try to give our best estimates.
Categories favoring Gore
* Absentee ballots cast statewide by Republican voters following the illegal solicitation of absentee ballots by the Florida Republican Party: 50,000?
* Absentee ballots that could not be read by voting machines, but were illegally "duplicated" by county election officials: 10,000 (60% Bush?)
* Legal voters who were disenfranchised by Katherine Harris through the criminally inaccurate purge of "felons": 1,100 (90% Gore)
* Absentee ballots cast in Seminole and Martin counties by Republican voters following the criminal alteration of defective ballot applications by Republican operatives: 5,000 (99% Bush)
* Votes meant for Gore but cast for Buchanan because of the "butterfly ballot" in Palm Beach: 3,000 (100% Gore)
. . . .
* Overseas military ballots that were not legal, but were counted because of massive pressure from the Bush campaign: 680 (71% Bush)
. . . .
Categories favoring Bush
* Illegal votes by felons: 5,600 (90% Gore?)
* Premature network projections for Gore 10 minutes before polls closed in the Panhandle: 10 (60% Bush?)
Clearly, these disputed votes - plus the hundreds (if not thousands) of predominantly Democratic black and hispanic voters who encountered police checkpoints or a lack of translators and so could not cast ballots - demonstrate that the intent of Florida in 2000 was to cast 25 Electoral Votes for Al Gore.