Politics

Author: Richard R. Tryon and others

November 13, 2000
From the WSJ

Pandora's Politics

It's becoming clearer by the day that Al Gore's decision to contest the Florida presidential election results has opened up Pandora's box. We can only assume the vice president and his fellow Democrats will enjoy living with the demons they've unleashed.

Two counts by machine in Florida have so far favored George W. Bush, not counting the absentee ballots from overseas that could go either way. Yet now Mr. Gore wants a third count, this time by hand and only in heavily Democratic counties. The Bush campaign has sought an injunction to stop this, on the sensible grounds that hand counts allow partisan election officials to "determine the intent of the voter," as the Florida statute puts it.

Put bluntly, the Gore campaign expects that Democratic vote canvassers will find more Democratic votes than non-partisan machines already have. Any doubt about this should have vanished on the weekend as the nation watched poll officials in Palm Beach County make up the counting rules as they went along.

At first the panel members adopted a "sunlight test," but then for their own obscure reasons they decided to look at the condition of the "chad" -- the part of the ballot that would fall off were it properly punched. So we all learned the momentous distinction between a "hanging chad" and the merely "swinging chad," not to mention the "pregnant chad" versus the always vexing "dimpled chad." Once again Mr. Gore is betting on no controlling legal authority.

Not surprisingly, these delphic Democratic chad inspectors found that Mr. Gore had picked up 19 votes, and that this in turn justifies a hand-count of the entire Democratic county. Any guess how many votes Mr. Gore will pick up by the time all four Democratic counties have been hand counted? If it is just enough votes to win, look for the Gore campaign and its media echo chamber to then demand that Mr. Bush pack it in.

Keep in mind that this third recount is not based on a single allegation of vote fraud. Instead, it is based on Gore lawyer Warren Christopher's contention that only these four (conveniently Democratic) counties in Florida had "real irregularities," notably that some 19,000 votes were double-punched for president. But in solidly Republican Duval County, some 26,000 votes were also disqualified on Election Day for double-punching or failing to punch hard enough.

Are these ballots also going to be hand counted? And by GOP canvassers? They certainly should be, as statistical economist Edward Glaeser notes nearby. And we'd expect Mr. Bush to make exactly that request if the Democratic-run hand counts miraculously show Mr. Gore ahead, whatever deadline might have passed. While we're at it, let's have a hand recount of the whole country, with United Nations observers overseeing every state elections board. A country that acts like the Philippines deserves to be monitored like it.

The Gore campaign argues that it just wants a fair vote count. But asked Saturday if the vice president would accept even a hand count that went against him, Mr.Christopher refused to answer, saying the campaign was pursuing "various options." There's no other way to interpret such a statement except as an intention by the Gore team to litigate or obfuscate until they finally get avote count they like.

Meanwhile, other Democrats are playing the race card.The NAACP dispatched itself to Florida to hold a five-hour public hunt for anecdotes of voter intimidation.These will then be shipped off to that great symbol of national trust, Attorney General Janet Reno. The intent is to coax a Justice Department intervention on civil-rights grounds, which could further tie up the Florida vote.Never mind that a huge black turnout last Tuesday of 16% exceeded the 14% African-American share of the Florida population.

Watching all this has left us more than a little depressed.
We keep recalling President Clinton's famous remark to Dick Morris when the Monica Lewinsky scandal first broke. Mr. Morris had taken a poll and found that if the president publicly admitted his behavior he might have to resign. Mr. Clinton replied, "We'll just have to win then."This same anything-goes ethos is now being applied to election law.

The question we'd ask other, more conscientious Democrats is whether this is really the kind of politics they signed up for. The Clinton years have been tough on the Democratic Party's reputation for probity, as Election Day showed. The political benefits of prosperity were cancelled out by voters who wanted to restore some moral accountability to government.

There have been a few signs that at least some Democrats care about more than hanging on to power. Senators Bob Torricelli and John Breaux have warned the Gore campaign about a long legal challenge, only to be rebuked by Mr. Gore's flacks. Former Labor Secretary Robert Reich has echoed the senators on TV.

And Bill Bradley, who challenged Mr. Gore in the primaries, told the Washington Post that "When the votes are counted, that should be it. It is a perilous course to try to delay in the expectation that things will be turned around by lawyers. Unless there is something fraudulent or a flagrant violation of law, this should end on Nov. 17."They all said this, of course, before the Gore hand-count gambit became clear.

We are about to find out if we still are a nation of laws, or if the law can be manipulated to steal even the presidency.



Florida's Vote Wasn't 'Irregular'

By Einer Elhauge, a professor at Harvard
Law School.

A federal judge is scheduled to hear arguments today on a Republican lawsuit charging that manual recounts in four heavily Democratic Florida counties violate the U.S. Constitution. Gore spokesmen counter that the recount is merited because of "irregularities" in those areas, especially in Palm Beach County.

The validity of the Democrats' claims thus turns on the details of Florida's election law. Examining those statues reveals that many of the claimed "irregularities" are clearly frivolous, for they involve complaints that Florida election officials followed, rather than violated, the rules.
The rest of the "irregularities" are disposed of under well-established legal precedents.

One complaint is that election officials only gave voters five minutes to vote and refused to allow them to bring others into the polling booth to assist them.Florida statute
101.51 specifies precisely that time limit, and bars others from entering the polling booth unless the voter signs an oath that he is blind, disabled, or unable to read or write. Both rules exist for good reason. The time limit tries to move voters through quickly, so that others get a chance to vote. And secret ballots would mean little if voters could be pressured to allow others to come into the voting booth to "help" them.

Right or wrong, these were the rules for the election, and
one cannot complain that fidelity to the rules constituted
irregularity.

Nor can it be irregular to follow Florida statutes that
require election officials to turn away voters who do not
have identification or who try to vote in the wrong precinct.

The same goes for what the Associated Press called a "horror story," refusing to allow voters who had received absentee ballots to vote in person until they signed affidavits swearing they had not used their absentee ballots. This horror amounted following the letter of Florida statute 101.69. Following these rules helps to curb double voting and other election law fraud. Failing to follow such rules would have been an irregularity.

Political Strategy

Since none of these claims have any legal significance, one might take comfort in the fact that the courts will dismiss them. But the Gore forces are pursuing not just a legal strategy but a political one. And the constant and irresponsible repetition of these supposed irregularities,
without any reference to the actual legal rules, has
abetted a destructive political campaign that has already
resulted in selective hand recounting of ballots in
counties leaning to Mr. Gore.

To his credit, Mr. Gore himself has not (yet, at least)
echoed these frivolous charges. Instead, his campaignhas focused its attention on the complaint that the ballot in Palm Beach County confused voters. One must acknowledge that it is regrettable that voters ever cast an erroneous vote because they were confused. But for this claim to justify invalidating the election, it is not enough to show that some voters were in fact confused. Rather, it must be shown both that the ballot clearly constituted a substantial violation of election law, and that this irregularity deprived voters of any reasonable opportunity to figure out how to vote.

Critics claims the ballot format violated Florida law in two
ways. First, the law requires that the candidates be listed
in a certain order. This claim can be disposed of easily,
as the candidates were listed in the proper order. The list
was structured in columns, like this article, and Patrick J.
Buchanan happened to be the first name in the second column.

Second, opponents charge that Florida law requires that you always vote for candidates to the right of their name.
This is indeed the rule for paper ballots, which can be long enough to accommodate a big list of candidates in one column. But electronic or machine ballots are often too short to put candidates in one column, and there is no rule that requires them to be marked on the right.

My esteemed Harvard Law colleague, Phil Heymann,acknowledged in the Washington Post on Friday that the standard is whether there was "clear illegality." But he went on to argue that there is "little dispute" that the ballot "flatly violated the law." He based this on Florida statutes
101.5609 and 101.27, which he quotes as stating that where electronic or machine ballots are used "The ballot information shall . . . be in the order of arrangement
provided for paper ballots."

I have two responses. First, this language only governs the order of the candidates, not where the votes are marked, and thus was not violated by a ballot that put the candidates in the correct order but in two columns.Second, beware of ellipses, for the language excised in the above quote was "as far as practicable." Florida election officials are explicitly allowed by the statute to alter the order of arrangement to meet practical concerns.

And here there was a practical concern. Given the shortness dictated by the machines, to put the candidates in one column would have made the ballots harder to read and thus, potentially, confused many more voters. If the ballot is in two columns, with punch holes on the right of each, then some voters who wanted to vote for a candidate in the second column might mistakenly punch the hole right before that candidate. So, as election officials often do, the punch holes were put in the middle of the two columns, with big arrows from each candidate indicating the appropriate hole to punch.

Was this a perfect solution? Evidently not, for some voters are saying that they were, in fact, confused by this ballot. But there was no option that would have eliminated all potential confusion. This was a reasonable choice for election officials to make, and the Democratic official who made it violated no law.

Even if the ballot were irregular, it did not deprive voters
of a reasonable opportunity to cast their vote. Democrats
complain that some proportion of the 3,400 voters who voted for Pat Buchanan in Palm Beach County did so only because they were confused by the ballot. But the test is whether a conscientious voter of ordinary intelligence could have, with reasonable time and effort, located the candidate of his choice. That test is clearly satisfied here. Any voter who was confused could ask an official for clarification, or request a new ballot. Most important, it is undisputed that more than 400,000 other voters in that county managed to locate those arrows and make the right choice, which clearly shows the task was not impossible for the reasonable voter.

Even if the ballot was confusing about which hole to punch, nothing on it should have confused voters into thinking they could vote for two candidates, and this is what happened on the 19,000 ballots that Democrats complain were tossed out. This is a common occurrence governed by Florida statute 101.011: "If the elector marks more names than there are persons to be elected to an office. . . his or her ballot shall not be counted for the office."

This rule, similar to that in other states, exists to preserve certainty and the sanctity of secret ballots. Who a voter intended to vote for is determined solely by the objective evidence left on the ballot, and cannot be undermined by testimony that they intended to vote for someone else. The remedy when the voter's intent cannot be
determined is to invalidate a portion of that ballot, not the election. If a majority of Floridians don't like this rule, the time to change it is in the future. A past presidentialelection is no time to make an unprecedented change in the law.

Indeed, even if the ballot was "irregular," Florida law does
not authorize the courts to order a new election. It provides only two remedies that might apply here. First, it authorizes courts to void any votes where the voter's intent is not clear. This obviously would have no effect other than possibly reducing Mr. Buchanan's vote count and thus cannot help the Democrats.
The second remedy is to void the election. But the courts
try as much as possible to resolve any claims of ballot
ambiguity before voiding an election. A court might well
decide that the Democrats waived their rights by failing to
complain about the ballot form beforehand, or that voters
waived their rights by failing to ask for clarification at the polling place.

But even if the election were voided, Florida officials (not
judges) would decide what sort of new election to conduct, and there would be no reason for them to conduct one limited to Palm Beach County. This would give the Democrats an extremely unfair advantage, since this is a heavily Democratic county. Knowing that they held the power to choose the next president, one can predict that turnout would be affected, and that Nader voters would switch to Mr. Gore. To vote after you know how everyone else has voted is a massive informational advantage completely at odds with how we normally conduct elections.

It has been argued that the Constitution only requires a
vote of the majority of electors meeting, not the whole
potential electoral college, thus making a Gore win possible if there are no Florida electors. This is not correct. The Constitution requires Florida to appoint electors. So Florida cannot legally refuse to hold a new election if this one is voided. Florida electors will thus be at the Electoral College. It is just a question whether the ones who finally get there will be for Mr. Gore or for Mr. Bush.

The early press buzz is that the Bush litigation is shaky
because Florida law provides for manual recounts. But this misconstrues the Bush litigation, which does not claim Florida law is violated but rather that, as currently being applied, Florida law on manual recounts violates the U.S. Constitution. The course of this litigation is much
harder to predict since it does not turn on any clear rules but rather on the meaning of such general constitutional
principles as equal protection, the right to vote, and due
process. But it is well-founded.

One clear effect of a manual recount is to increase the
number of votes counted where the "chad" was partially
punched out. People can pick this up where machines
cannot. But there is absolutely no reason to think the problem of partially punched chad is unique to the counties in which the manual recount is proceeding.
Thus, selecting only heavily Democratic counties to
conduct a manual recount will effectively dilute the votes
of those living in other counties. Any manual recount should be done either in all counties or none to preserve the equal right to vote.

Subjective Judgments

Another effect of a manual recount is to substitute subjective human judgment for objective machine
judgments. Here, Florida law has exacerbated the problem by providing no objective standards about whether or how to conduct a recount. Indeed, the standards already have been switched in midstream --from a "sunlight" test (whether you could see through the card) to a partial perforation test.

Even if the standard were consistent, judgment calls still
must be made, which might be consciously or unconsciously biased. This problem has been worsened by the extraordinary campaign the Democrats have run to pillory the Democratic officials who devised the ballot.Theresa LePore, the Democrat in charge of the Palm Beach County recount, has been described by herfriends as "deeply shaken." One need not imagine any conscious wrongdoing to worry that officials who are in deep hot water in their pro-Gore counties might
subconsciously be influenced by the fact that the complaints about their ballot would go away if the manual recount favors Mr. Gore.

A final effect of the recount is to delay the resolution of
this election. A manual recount in just a few counties will
take days. To do it properly for every county may take months. The Constitutional requirement that every state
"shall" appoint electors would thus constrain any attempt
at the sort of statewide manual recount that would at a
minimum be necessary to preserve the equal right to vote.

November 13, 2000




Recount 'Em All, or None at All

By Ed Glaeser. Mr. Glaeser is a professor of economics at Harvard University and a visiting fellow at the Brookings Institution.

There is a well-known trick among statistical economists for biasing your data while looking honest. First, figure out which data points don't agree with your theory. Then zealously clean up the offending data points while leaving the other data alone. The key to maintaining academic dignity is to ensure that you do nothing to the data other than eliminate errors.

But while this approach may seem to improve accuracy, it
actually leads to biased results. If you only clean the
offending data points, then you will disproportionately
keep erroneous data that agrees with your prior views.
This leads many scholars to believe that data that is
partially cleaned at the discretion of a researcher is worse
than bad data.

This lesson from the ivory tower has a clear implication for the current mess in Florida. Hand counting ballots in only a few, carefully chosen counties is a sure way to bias the results. Even if hand counting is more accurate than machine counting, there is a clear bias introduced because Al Gore chose which counties to hand count. Mr. Gore has selected the state and counties where recounting has the best chance of helping him.

This is exactly the same as cleaning other data selectively. Naturally, if this opportunity for selective recounting becomes the norm, the floodgates will open and any candidate who loses a close election would be foolish not to demand a recount.

The immediate implication of this is clear. If there is to be recounting by hand, it cannot be selective. There needs
to be total hand counting, not just within Florida, but
across the U.S. in any state that was close. One candidate cannot be allowed just to choose where he wants the data cleaned. If this is prohibitively expensive, or time consuming, then it is better to leave the process unchanged than to introduce the selective recounting bias.

More generally, one of the principal lessons of macroeconomics is that rules generally work better than discretion. This is as true in elections as any place else.Giving candidates influence over how election results are processed does not help democracy to accurately reflect
the will of the people. Judicial discretion is not much
better, as judges will be responding to cases selectively
filed by candidates. Furthermore, judges determining
elections will exalt the judiciary to a king-making role it
should not have.

While it certainly may be appropriate to ban butterfly
ballots for all of eternity, and while reform of balloting
procedures seems like a must, it is also clearly wrong to
selectively recount certain areas.


Gore Challenge Undermines
U.S. Democracy

By William J. Bennett, a co-director of Empower America.

Al Gore's transparent efforts to overturn election results
that are unfavorable to him are doing terrible and lasting
damage to the nation he has spent most of his adult life
hoping to lead.

As everybody knows by now, George W. Bush last week won the unofficial recount in Florida. Tomorrow, Florida Secretary of State Katherine Harris is scheduled to announce the official ballot results from all 67 counties; by Friday the state will tabulate ballots cast by Floridians overseas. The evidence indicated that last Tuesday's results would be upheld.

But as everybody also knows, the Gore campaign began a massive campaign to subvert this outcome, including its most recent effort to insist on a manual recount in four predominantly Democratic counties. Gore campaign
chairman William Daley has even suggested that unless
Al Gore is awarded victory in Florida, the election will be
illegitimate. "If the will of the people is to prevail," Mr.
Daley said, "Al Gore should be awarded a victory in Florida and be our next president."

To clarify some matters raised last week: The chief complaint made by the Gore campaign consists of the
charge that the butterfly ballot in Palm Beach County is
"deceptive, misleading and confusing," and led many people to mistakenly vote for Pat Buchanan. Yet butterfly ballots have long been used without challenge. County Supervisor of Elections Theresa LePore, a Democrat, designed the ballots to make reading them easier for the county's elderly population. The ballots were sent outlong before the election, approved by both parties and printed in advance in newspapers. No complaints were raised.

There is nothing deceptive about the ballot (it has been
used in places like Cook County in Illinois, the home of
Mr. Daley) and no credible judge in America would find
merit in the Palm Beach challenge. If the ballot was as
confusing as the Gore campaign asserts, Mr. Buchanan would have won far more than 3,400 votes out of the more than 400,000 cast.

As for the charge that 19,000 ballots in Palm Beach county were disqualified because more than one candidate was selected, there are two points to be made. First, a similarly high number of ballots was disqualified from the same county in 1996 (and 143,000 total state ballots were disqualified); and second, every jurisdiction in America discards ballots where two different candidates are selected.

When citizens enter a voting booth we have the right to
assume they will take the time necessary to understand
the ballot and vote for only one candidate. To throw out
an election based on the carelessness of a small fraction
of the voting public would lead to chaos.

But something else must be said. Since last Tuesday's election, we are seeing something unmistakable. It is the
continuation of a persistent pattern that has
characterized the Clinton-Gore years: the willingness to
undermine constitutional government and place partisan
political interests ahead of the good of the nation. In this
instance, the Gore campaign is resorting to unprecedented tactics to ensure that its man becomes president.

What is at stake here is something far more important than the political futures of Albert Arnold Gore Jr. and George Walker Bush. This is a deeply significant moment for American constitutional government, and one fraught with peril.

Our democracy depends on people abiding by certain unwritten rules. One of them has been that presidential candidates who lose an election do not contest the loss unless there is evidence of massive fraud and abuse(which is clearly not the case in this election). If those unwritten rules are violated, it sets in motion events that could precipitate an authentic political crisis.

If the Gore campaign continues down this road, it will
establish precedents. Do we really want to get into the habit of contesting every state that is decided by a razor-thin margin? Do we want to arrive at a point where, in a close campaign, the losing candidate reverts to challenge after challenge? Is it healthy for our nation to endlessly search for voter grievances? Do we want to make it a commonplace practice for losing candidates to resort to manual recounts of counties that are favorable to them? Is it a good idea to force winning candidates to take actions they would rather not, so they can preservetheir victories? There would be no end point to such challenges.

Regrettably, and recklessly, during the past 100 hours the Gore campaign has begun to poison the wellspring of American democracy. We are beginning to see the early consequences: street demonstrations, protests, increasing acrimony and bitterness. Things will only get worse, far worse, if they prolong this ordeal. To use a favorite Gore campaign phrase, "You ain't seen nothing yet."

Forty years ago, Richard Nixon had a far more compelling reason than Mr. Gore to challenge the 1960 election results, since we know fraud in Chicago and Texas helped swing the election to John Kennedy. But Nixon refused to challenge the results; the morning after the election he conceded. Nixon has been universally praised -- including by many liberals and Democrats -- for his gesture. He put his nation above his own ambitions. The same can be said of Missouri Sen. John Ashcroft, who last week graciously conceded defeat rather than pursue a court challenge after losing to a deceased candidate.

But Mr. Gore has chosen a different path. Every day, it seems, he and his lieutenants pull a new trick out of their
bag, challenge settled practices, and issue irresponsible
threats and baseless accusations. The end game is clear: to throw sand in the machinery of democracy and destabilize American presidential politics. I hope, and still believe, these efforts will fail. But whether they do or not, Mr. Gore is well on his way to earning the scorn of his countrymen and a harsh verdict from history.


November 10, 2000




Commentary

The People Have Spoken.
Will Gore Listen?

By John H. Fund, a member of the Journal's editorial board.

The most consequential legal battle ever involving an election is about to be waged. Even before the results of
the Florida recount were announced, Gore campaign chairman William Daley declared that "if the will of the people is to prevail, Al Gore should be awarded a victory."

Mr. Gore has dispatched a chartered plane filled with 75
lawyers and political operatives to investigate what Florida's Democratic chairman Bob Poe calls "thousands
of reports" of voting irregularities. Republicans have sent
their own team. The Justice Department says it will
review Democratic allegations of missing ballot boxes.
Jesse Jackson has called for an investigation of possible
intimidation of "minority communities" that lowered Mr.
Gore's vote in Florida. "We are talking about voter suppression, frightening people away from the polls,"
says NAACP chairman Julian Bond.

Unfortunately for Mr. Bond it appears that while only 15%
of Florida's voters are black, on Election Day they made
up 16% of those who cast ballots. Hardly evidence of "voter suppression."

***

Ultimately, the Gore team is hoping that a local state
judge (backed by Florida's liberal Supreme Court) will
order a new vote in Palm Beach County, where a few
voters claimed a confusing ballot layout may have led
some to vote for Patrick J. Buchanan rather than Mr.
Gore. This despite the fact that the ballot format was determined by a Democratic election commissioner and had been used elsewhere, including Mr. Daley's Cook County.

The "butterfly" ballot is used so the elderly will have a
larger typeface. And there were real efforts made to educate voters on how the ballot worked. The county mailed a sample ballot to all registered voters. The local Democratic Party sent voters a postcard reminding them to punch the right line for Mr. Gore. At the polls, people were given the ballot only after they said they knew how to use it. Voters who made mistakes were given new punch cards if they asked for one.

Moreover, Mr. Buchanan's vote in Palm Beach is not unusual given that a Buchanan cousin ran an extensive grassroots effort there, and that Mr. Buchanan won 8,000 votes there in the 1996 presidential primary.

Barring proof of actual fraud as opposed to mere incompetence -- legally, malfeasance as opposed to misfeasance -- it is highly unlikely the courts would rule on any lawsuit until after inauguration day. Florida has never before called a new election in any county or prevented its presidential electors from voting.

While pursuing a legal challenge in Palm Beach County, Gore partisans will continue to point to his current lead in the national popular vote -- now down to some 95,000 votes -- to further the argument that George W. Bush's probable electoral victory is illegitimate. One reason the effort hasn't fully ramped up yet is the possibility that when 1.5 million uncounted absentee votes come in, Mr. Bush could narrowly lead Mr. Gore.

While Mr. Gore's staff has been circumspect, his allies in
the media have been less so. Andrew Sullivan of the New Republic says that Newsweek columnist Jonathan Alter came close to "inciting a coup" with his election night remarks that if "Al Gore wins the popular vote nationally, there will be intense pressure in this country to have him become the president."

Some of Mr. Gore's more zealous spin doctors are clearly hoping that if the Florida vote gets bogged downin the courts it will poison the process and perhaps even put pressure on some of Mr. Bush's more wobbly electors to consider switching their vote or abstaining. This is a high risk strategy. In 1960, faced with much more compelling evidence of ballot irregularities and even outright fraud in Chicago and Texas, Richard Nixon chose not to contest the results beyond a certain point."Our country can't afford the agony of a constitutional crisis," Nixon said.

This year Sen. John Ashcroft (R., Mo.) has declared he won't contest the thin margin of victory of his dead opponent, even though a Democratic judge kept the polls open longer than they were supposed to be. "I don't see that kind of grace in Al Gore," says MSNBC's Lawrence O'Donnell, a former Democratic staff director on Capitol Hill.

If Mr. Gore presses his challenge, his supporters will have to factor in the certainty that Republican lawyers would demand recounts of Mr. Gore's wafer-thin leads in Wisconsin, Iowa and New Mexico, which together have 23 electoral votes. According to current vote totals, Mr.Gore beat Mr. Bush in Wisconsin by about 6,000 votes(fraud has been reported in Milwaukee), in Iowa by less than 5,000, and in New Mexico by about 9,500.

The GOP will also zero in on Florida's rancid past as a center of ballot chicanery. In some voting precincts in Miami turnout may have topped an implausible 90%. The Bush campaign already has complained to Palm Beach County that it has certified 800 more votes than its precinct-by-precinct canvas reported on election night, giving Mr. Gore 400 net votes. Few other Florida counties have such a wide discrepancy.

The Miami Herald won a Pulitzer Prize for proving that the 1997 race for Miami mayor had been stolen using absentee ballots. That election was overturned and the winner removed from office.

***

After the recount, the Gore campaign faces a fundamental choice. A hint of where they might go was provided by Rep. Peter Deutsch (D., Fla.), who demanded on CNN that a state judge in Palm Beach do a statistical analysis of the "miscast" ballots. He will "have to change the numbers and that will make Al Gore the next president," he said.But if judges can be trusted to determine the will of the people, why have elections in the first place?


But this election is down to the critical point.

Things look reasonably promising at the moment, but George Will, columnist from Champaign, tells us that William Daley is not out yet. He grew up learning how to steal elections from his father - the boss Daley of Chicago.

His plan now is to win the popular notion that sounds so simple that it must be right! Think of it. Each voter in Palm Beach had such a hard time because of the Democrat designed ballot, that a hand count (discreetly subjected to subjective interpretation by a committe of three- two Dems and one Rep) must be fair and it is so important!

Will the Florida Secty of State be able to respond to the cleverly worded appeal to allow hand counts in a way that says no way? You can bet some good legal writers are working on this one tonight. Let's see...here is my draft:

"I have reviewed the petitions for hand ballot counting in four counties of the 67 in the State of Florida. I intend to see that my discretionary power, vested in my position, will be hand count all ballots cast by those that did not do it properly, because the machinery or computer software failed to allow such to happen. Unfortunately, I have found no evidence of fraud, abuse, or mis-use of the hardware or software involved in tabulating the election results of the November 6, 2000 balloting in Florida's 67 counties. Unfortunately some of our voters failed to follow directions that were clearly understood by almost all.

Nor have I found in the petitions any evidence of any organized campaign to confuse and mis-direct voters who intended to vote for any candidate for any office on the ballot.

On the other hand, I have found in numerous reports, evidence to show that hand counting of ballots in the last week in Florida has introduced numerous evidences of the introduction of human subjective judgements that appear in a partisan fashion in response to rules for consideration that are not based upon any established law or regulation.

We have allowed certain evidences of mechanical failure to permit, for example, removal of chad stuck to the surface of a tab card ballot that might interfere with machine counting of the holes punched in such cards; but, we can not allow tabulations to be revised on the basis of perceived intent that is impossible to determine, when the voter failed to punch a single vote for only one candidate, when only one is allowed. Multiple punches and no punches leave, in such cases, no room for interpretation. If the voter fails to execute the instructions to vote for any office, that ballot can not be counted in the tabulation of votes for such office.

A 'dimple' on a card means either the voter was too weak to punch or that he or she may have started to punch and had a change of mind and did not punch another choice. A dimple plus another clearly punched choice does not invalidate a ballot for that office. The dimple is ignored by the mechanical reader and that is correct. The converse is equally correct.

In addition, we can not allow selective recounting of ballots on a manual basis as demanded by any campaign officials who seek a way to find extra votes in certain counties or precincts without both an argument that compels such as being superior to machine counting while also submitting all votes in the state to the same scrutiny. There is no evidence to suggest such a need and it was not sought in a timely fashion.

Florida law requires me to consider making exceptions when conditions exist such as to warrant it. I do not find such in any of the petitions submitted and therefore declare that the original certified counts from all 67 counties, shall stand; but, as amended by the absentee ballots not counted prior to the Friday night midnight deadline for all such to arrive with postmarks no later than that of Nov. 6, 2000. We shall announce the revised vote totals by Saturday at 5 p.m. November 18, 2000."

I wonder if this approaches what the response will be sometime after 2 pm Wednesday? It may take three hours to generate the response or maybe overnight. The longer it takes, the more Daley will be trying to get media focus on perceived discovery of new votes for Gore.

I don't know if he will take it to the streets, but with Jesse in town, who knows?

Overseas Ballots Could Hold Key to Election
Report: Fla. Absentee Votes Way Up from '96

By Paul Simao
Reuters

TALLAHASSEE, Fla. (Nov. 15) - With Republican George W. Bush holding a 300-vote lead over Democrat Al Gore in Florida's disputed election, an unknown number of votes from overseas could hold the key to who becomes the next president.

Florida election officials, who have spent the past week recounting nearly 6 million ballots from the Nov. 7 presidential vote, said on Tuesday they would begin counting overseas ballots early on Saturday.

Those ballots, which must be postmarked by Nov. 7 and received by the state by midnight on Friday, are usually mailed in by members of the U.S. military and a smaller number of executives and government employees living abroad.

USA Today in its Wednesday edition quoted county election officials as saying they had already received 4,039 absentee ballots in 65 of Florida's 67 counties, a big increase from the 2,300 mail-in ballots counted in the 1996 presidential election.

Although Florida's overseas ballots have favored Republicans in the past two presidential elections, party officials noted there was no guarantee overseas voters would favor the Texas governor.

"There's no assurance that he will win those votes," former Secretary of State James Baker, who is Bush's point man in Florida during the ballot controversy, said at a news conference in Tallahassee on Tuesday. "Traditionally, they have favored the Republican candidate and we should say that."

The importance of the overseas vote was highlighted on Tuesday when Florida Secretary of State Katherine Harris told reporters the "final result" of the election would be announced after the absentee ballots were counted.

Harris left open the possibility, however, that she would include in her final tally some hand-recounted ballots from Florida counties where Democrats argue Gore votes were unfairly disqualified or undercounted.

With recent history on their side, many Republicans have been excited about the thought of overseas ballots deciding which candidate claims Florida's 25 Electoral College votes and tops the 270 needed to win the White House.

Both candidates polled 48.9 percent of the popular vote in Florida, but were separated by only 300 votes late on Tuesday, according to the count announced by Harris.

Floridians who mailed in their ballots overwhelmingly supported Republican then-President George Bush, the father of the Texas governor, in 1992. Four years later, Republican presidential nominee Bob Dole won about 55 percent of the roughly 2,300 overseas absentee ballots received in Florida, although he lost the state to President Bill Clinton.

Democrats have not written off the overseas vote.

"There's a fair chance that a significant number of those (military) votes have already been counted," Tom Fina, executive director of Democrats Abroad, told the Tallahassee Democrat newspaper.

Other party officials believe that Gore's decision to choose as his running mate Connecticut Sen. Joseph Lieberman, the first Jew on a major-party presidential ticket, may have sparked an unusually large overseas vote from U.S. Jews living in Israel.

Jews traditionally are believed to favor Democrats. There are an estimated 4,000 Floridians living in Israel.

Absentee ballots received in Florida before Nov. 7 were included in the Election Night results. Those received between Election Day and the upcoming Friday deadline are put aside and counted after the deadline expires.

00:47 11-15-00

Copyright 2000 Reuters Limited. All rights reserved. Republication or redistribution of Reuters content, including by framing or similar means, is expressly prohibited without the prior written consent of Reuters. Reuters shall not be liable for any errors or delays in content, or for any actions taken in reliance thereon. All active hyperlinks have been inserted by AOL.


Now we come to the big event...

The Florida Supreme Court with seven justices all appointed by Democratic governors (one claims to be an independent) have jumped into the fray without being asked! They stopped the Florida Secretary of State Harris from certifying the final results after the absentee ballots were counted until such time as they tell her what they decide relevant laws require of her position.

Meanwhile, Democrats in three counties that are heavily Democrat controlled have been allowed to continue a massive hand counting of about 1.5 million of the 6 million cast in the state in hopes that they can determine the voter intent when the tabulating machinery failed to make such a determination via a hole punched out in a tab card! Working definitions of how to make such subjective determinations for these crucial counties have not been determined before hand- but on the fly.

As of Sunday, November 19, 12 days after the voting, it now appears that in one or more of the counties that seems to mean that if two corners of the ‘chad’ are visible beneath the card, then it should be clear that the voter intended to punch it out, but the voting machine failed to fully respond to the voter action. Nobody is saying that any voter may have decided to not vote, at least if it is a hole that relates to a new Gore vote to count.

On Monday, the Court may certify these rules and sanction them and any others that may be needed to offset the 930 vote advantage for Bush as reported after counting all but about a few thousand absentee ballots that were ruled invalid, mostly for lack of a clearly marked postal cancellation that shows the date within the period up to and including election day. Strange that the intent on these votes is not the concern of the Democrats. In this case they lean toward the notion that the law requires the postal date factor- so it is too bad that these voters screwed up and lost their ballot! Only it was the Post Office that failed. One would think that all such votes that arrived on the first five days after the election could be assumed to have been sent no later than the election day. But that kind of common sense is not for the Democrats - they are for the law! Except where the laws did not provide for their brand of interpretation of card punching.

We now have set the stage where the Supreme Court can rule that all such Democrat controlled county determinations will yield new votes for Gore and Bush too, if any of his supporters had the same problem with punching holes. In counties where 90% of the voters are Democrats, there may be one or two Republicans who could not follow instructions either!

If the Court then says, just wait for a few more weeks while the vote goes on...after all, who needs to know who to send to Washington until January 20, 2001? Besides, Al Gore is already there.

But what happens when the Court says ok, we now can see that Gore can win by a few hundred votes- send in the results? What if the Republicans then get a ruling in a lower court that lets them count the unpostmarked absentee ballots received before some date down stream of the election day- or upstream for that matter, if not already counted, and these votes tilt the result back the other way? 

Can you imagine how Al Gore could take office knowing that after all of his effort to get every vote counted, a few more came in that made him a loser? How could he face the American people as a righteous man and not resign? If not, would people remember it four years later?

Well, before we assume this scenario, maybe we should see how the vote is going with the hand counting effort to manufacture more for Gore without going to other counties to do the same where perhaps Bush can find a few more votes among those that were discarded as being less than perfectly executed.

Update of Dec. 3, 2000 per an e-mail to a friend:

When the smoke clears away, I do hope that someone will get a chance to manually count every paper, punched card and whatever else was used in Florida to capture:

a. How many clear machine votes are there untainted by any mark, chads, or dimples for each man?

b. How many ballots have no mark or anything for President?

c. How many have each of several combinations of punches with or without chads, dimples, etc. in each category for each candidate.

Then we can put together some informative stats to help conclude what scenario, if any, would have turned the trick for Gore! Or left it where it belonged from the first counting for Bush.

The media are sure going to learn to stop calling states before the polls close in Hawaii and Alaska.

What else can we learn from this? The historians will have a field day.


By LARRY NEUMEISTER
.c The Associated Press


TALLAHASSEE, Fla. (AP) - A historic legal battle in which Al Gore seeks to topple George W. Bush's certified Florida victory through a court-ordered study of contested ballots rests with a state judge.

After a two-day trial, he promises a fast ruling. Whatever it is, an appeal is almost certain.

Suppressing a yawn, Leon County Circuit Court Judge N. Sanders Sauls said he would deliver his conclusions Monday morning after presiding over a marathon 13-hour session Sunday that brought out testimony by a dozen witnesses and arguments by lawyers broadcast worldwide.

``We need to have these votes counted. We'd like to see Judge Sauls order it. But, if, unfortunately, that isn't his decision, obviously we'll go from there,'' Gore lawyer Ron Klain said on CBS' ``The Early Show.''

Asked what Bush would do if the judge ruled against him, lawyer Barry Richard said, ``That will be a decision for my client, but I would be surprised if the decision was not to appeal.'' He spoke on ABC's ``Good Morning America.''

Sauls rocked in his chair Sunday as he listened to lawyers plead with him. Bush's wanted him to leave Bush's 537-vote victory in Florida alone. Gore's lawyers asked him to order courthouse counts of disputed ballots that could give Gore Florida's 25 electoral votes, propelling him to victory and to the White House.

Gore lawyer David Boies said he believed ``the law is clear'' that hand recounts must begin in key areas where the Democrats believe hundreds of legitimate Gore votes were missed.

``In a close election, a manual recount is the only way to be sure how certain contested ballots should be counted,'' said Boies, who grew to fame arguing on behalf of the U.S. government for the breakup of Microsoft Corp.

He urged Sauls to ensure that 14,000 disputed ballots in Miami-Dade and Palm Beach counties are counted. He said evidence presented in court did not leave ``any doubt that they were not included, and now there can be no doubt that those are legal votes.''

Richard, representing Bush, said the Gore team was ``light years away'' from proving the kind of electoral errors the law requires before a judge can order a courthouse count.

``Voter confusion, voter mistakes, is not enough,'' he said.

Richard said the outcome of the election should not depend on those whose votes could not be recorded because they failed to read instructions or to ask for help from polling place workers.

``The voter has some obligation to do it right,'' he said.

Joseph Klock, a lawyer for Florida Secretary of State Katherine Harris, who certified the vote a week ago in Bush's favor, said the legislature never wanted ``one lone circuit court judge in Tallahassee to look through all of the ballots'' and choose the next president.

For two days, Sauls heard testimony in a case that Democrats have said may represent their best chance of getting Gore to the White House.

Both sides promised appeals to the Florida Supreme Court, whose seven members are Democratic appointees.

The trial has proceeded even as the U.S. Supreme Court considers Bush's appeal of the Florida Supreme Court's decision to extend a deadline, which allowed some hand recounts to trim Bush's lead from 930 votes to 537 of 6 million cast.

In Sauls' courtroom Sunday, a GOP expert on punch-ballot voting machines conceded that hand recounts the Democrat seeks were advisable ``in very close elections.''

John Ahmann, owner of a small election supply company in Napa, Calif., said under cross examination that he agreed manual recounts were wise in some elections, especially those decided by only a few votes.

Ahmann said recounts were the only way to identify valid votes that resulted in so-called hanging chads - ballots pierced by tiny holes but possibly missed by machines.

``You need either reinspection or manual recounts where you have that situation; yes, you do, where you have a very close election,'' he said.

Ahmann, before cross examination, appeared to be scoring points for Bush as he testified that a dimple - or indentation - easily could be produced by accident with a slight touch of the metal stylus.

``It's quite possible you can dimple the ballot and have no intention of voting,'' he said, adding, ``if you just touch it, you haven't voted.''

William J. Rohloff, a Fort Lauderdale voter, was called by the Bush side to testify that he might have indented his ballot when he didn't mean to. He said he put the punching device ``over the name of one of the candidates and I decided I just didn't want to cast the vote.''

He said he wouldn't want his vote counted either way. ``I don't believe, especially on my ballot, that anyone can interpret my intent.''


Dec. 4- a turning point?

See the AOL news from Reuters:

Florida Judge Rejects Gore Election Challenge

By Michael Conlon
Reuters

TALLAHASSEE, Fla. (Dec. 4) - A Florida judge Monday rejected Democrat Al Gore's bid to overturn the certified result of the presidential election in Florida that gave a narrow victory to Republican George W. Bush.

In delivering a severe, though not yet fatal, blow to Gore's tenacious fight for the presidency, Leon County Circuit Judge N. Sanders Sauls refused to order a hand recount of thousands of disputed ballots from Miami-Dade and Palm Beach counties.

He said the Gore camp had failed to prove that the recounts would definitely result in a win for Gore. Nor was there evidence of ''any illegality, dishonesty, gross negligence, improper influence, coercion or fraud'' in Florida's presidential election, Sauls said.

The Democrats immediately filed an appeal, which the state appeals court sent directly to the Florida Supreme Court.

''They won, we lost, we're appealing, this is going to be resolved by the Florida Supreme Court and I think that will be the end of the matter,'' lead Democrat attorney David Boies said.

Phil Beck, a Bush lawyer prominent during the two days of trial, said the result was ''a clean sweep for us ... as complete a victory as I have ever gotten in a trial.''

Both Bush and Gore need the state's 25 electoral votes to win the presidency. Florida and the other states are to certify on Dec. 12 the electors who actually choose the president under the Electoral College system on Dec. 18.

Gore attorneys sued one week ago seeking a partial, manual recount in two counties, the Democrat strongholds of Miami-Dade and Palm Beach. The lawyers contended there were enough hidden votes to overturn the certified Florida result that gave Bush victory by just 537 votes out of 6 million cast in the Nov. 7 election.

Reading a ruling that followed a marathon hearing over Saturday and Sunday, Sauls said it was not enough to show that there was ''a reasonable possibility that an election result could have been altered'' by irregularities or inaccuracies.

''In this case there is no credible statistical evidence and no other confident, substantial evidence to establish by a preponderance a reasonable probability that the results of the statewide election in the state of Florida would be different from the results which have been certified by the state election canvassing commission,'' Sauls said.

Gore had challenged Miami-Dade county elections officials' decision not to conduct a full manual recount of its ballots, and challenged the criteria Palm Beach County election officials used to determine whether imperfectly punched ballots should be counted.

He also alleged that Nassau County elections officials had improperly certified their original Election Night results, rather than results from a legally mandated machine recount, costing Gore 51 votes.

Sauls said in his ruling that the law gives county election canvassing boards broad discretion and that none in the three disputed counties had abused that discretion, therefore the court could not overturn the result.

Bush attorney Ben Ginsberg called Sauls' decision ''an awfully strong, well-reasoned ruling.''

''I could not think of a stronger way to write it,'' said Bush's chief attorney, Barry Richard.

Boies, who walked over to congratulate Bush's attorneys after the judge read his ruling, said the appeal would argue that it was impossible to know without looking at the disputed ballots whether there was evidence that the outcome of the election could change.

''You can't resolve that contest without actually looking at the ballots,'' Boies said.

He acknowledged the pressing Dec. 12 deadline, ''However, I think there is still time for those ballots to be counted,'' Boies said.

''What has happened today is that we have one step closer to having this resolved ... we all know that this is going to be decided in a few days.''

The 1.1 million ballots were trucked up to state capital Tallahassee from Miami and West Palm Beach last week and held at the Leon County courthouse in case a recount had been ordered.

The battle to become the 43rd president of the United States has now lasted 27 days from election day on Nov. 7.



Commentary:

I wonder if David Boies gets twice as much per hour to go to the Florida Supreme Court with the case of the century in U.S. history....well the Impeachment may have rivaled this, but this one is different. No author of fictional novels could have made this plot more complicated; nor could one draw out the steps to the conclusion in the context of so many other facets of world history.

The humor mills have gone crazy. One wag said: “If the Democrats had wanted so badly to make Gore President, why didn’t they Impeach Clinton?” The endless series of coincidences are beyond the power of any one author to have assembled. How did it happen that the media started the mess with a bad call based on data still not revealed to the world. Was it an accident or an intentional ploy to feed ‘garbage-in’ in order to get ‘garbage-out’? Was Dan Rather duped or an accomplice?

How did it get arranged that the nation would divide not evenly at all, but look that way? The state electoral map shows Bush took 30 of the 50, but the county map shows a far more impressive split, while the popular vote for Gore in the major cities was almost always in his favor. Why?

It is not because both candidates sold the same ‘snake-oil’! There is a perceived difference and the voters for Bush know what it is, while the Gore voters are more likely to wonder why their coalition of organized industrial, municipal and teacher unions failed to bring home the bacon for the liberal causes.

Many Democrats will fear the result of a Bush win in terms of a perceived opposition to their pet special interests, but such will not happen. Do not look for the new Congress to find a way to outlaw all abortion; or even for the Supreme Court to be packed with a way to re-try Roe vs Wade to change the vote! Democrats may think such can be done, but they should be learning from the brave decisions of Florida Democrat Judges like Soules and Burton, who would not risk their career reputations by playing games with the election laws to please some high priced lawyers from out of state. Not even the fabled David Boiles, so remarkable for his ability to speak for an hour without notes while quoting laws the way a Bible thumper quotes Scripture, not even his showmanship could sway these tough old birds. Even if they too are Democrats!

As this is written the U.S. Supreme Court has tossed the ball back to the Florida Supreme Court and effectively added some new dimensions of confusion to the saga. It is not now clear, if their decision to force a longer recount period is now null and void or not? If so, is the Bush lead back to 930 votes, subject to some changes for Absentee military votes now awaiting a decision to say that postage and date cancellation as proof of mailing is not needed by Federal law.

At some point more than a few Democrats will start to realize what damage Gore is doing. His quest in the name of the people, who did not know how to follow directions but whom might have given some unmistakable signal of intent is simply Quixotic- nothing more or less! The Courts have spoken and now all of their good judgment is going to fall again into the lap of nine Florida Supreme Court justices that allowed themselves to be ‘bull-dozed’ into agreeing to the fateful decision now rebuked by the U.S. Supreme Court. Do you think that they are anxious for Boies to tell them how to try again?

What genius will find a way to get them to divine some punched cards in a way that turns the trick, while not risking further rebuke by the U.S. Supreme Court. Boies thinks he knows of one- him! Perhaps his ego will be adjusted soon. If not, it will be too late as the clock is ticking and the nation is going to not forget how the extreme efforts by the Democrat campaign failed to win the support of their own party officials and judges. The strong Republican control of the Florida legislature and even the irony of a Bush brother as Governor, is ready to be a trump card, but it will not be needed unless Gore finds a way to corrupt some major force. So far, he has not won a single legal battle or any recount.