by Jake Tapper
In some ways, it’s not the justices’ fault. Harris and the secretary of state’s office (Kerey Carpenter, for instance) abused their positions. They may have ruled that way so as to retaliate against the clearly partisan actions of individuals like Commissioner Carol Roberts, but they did so nonetheless. The Florida Supreme Court was trying to figure out a way to smooth out the wrinkles in contradictory statutes and provide aid to counties shanked by Harris’s partisan maneuvers. But they did so in a way that awoke the slumbering giant of the U.S. Supreme Court—as nudged by Olson, Carvin, Terwilliger, etc.—who clearly outwitted the Florida justices. Thus the Florida Supreme Court tried to help the “Count Every Vote” cause, but they did so in ways that ended up hurting the state’s chances of ever finding out who really got the most legal votes.
It didn’t have to be this way. There was, after all, the contest phase of the election, which could have put the entire statewide deal in front of one judge. Gore and his legal team wanted to avoid this for PR reasons—not exactly a lofty excuse. And when they did finally contest it all, it wasn’t the statewide results they wanted examined—it was 51 votes here, 157 votes there, 215 votes that never were. “Count every vote,” indeed. How easy for randy SCOTUS justices to deride. Hell, the Gore team had given them a layup.
Sadly, none of this should have come as a shock to the Democrats. Sitting right there in their files, in the postscript of The Recount Primer, was a lesson no one learned.
The Ultimate Recount
(Indiana’s 8th Congressional District—1984)
There is no better case to demonstrate how and how not to conduct a recount than the 1984 battle between incumbent Democrat Frank McCloskey and his Republican challenger Richard McIntyre for Indiana’s 8th Congressional District seat.
The 8th Congressional District of Indiana has become known as the “Bloody 8th” because of the closeness of its election outcomes and the intensity of its political campaigns…. Election night results… showed a handful of votes separating McCloskey and McIntyre. Over a period of six months, three complete vote tallies were conducted: an election night canvass, a state recount and a federal recount. Eventually, McCloskey was seated based on a margin of four votes out of a quarter of a million cast….
The 8th District recount illustrates most of the key points addressed in this primer.
First, the importance of quickly gathering data. McCloskey’s team immediately identified areas of information to be gathered, created a format to insure consistency, and had workers in the field within two days after the election, gathering information…. Thus, strategic decisions concerning the conduct of a state recount, such as the probable effect of the lack of district-wide rules, were made on the basis of reliable information.
On the other hand, once the state recount started, McIntyre’s campaign blindly charged ahead seeking new votes, indiscriminately disqualifying McCloskey ballots and pursuing immediately advantageous positions without regard to their impact upon the contest district-wide. Thus, McIntyre’s aggressive, but misguided, strategy played to the advantage of McCloskey.
The immediate effect was to provide McIntyre with a Pyrrhic victory of over 500 votes in the state recount. But this margin was reached by rulings so seemingly inconsistent as to appear part of an improper use of the nominally Republican dominated election system to benefit the McIntyre cause. Particularly susceptible to being made offensive was the disqualification of thousands of ballots for technical reasons in predominantly black precincts in Evansville, Indiana. Ironically, these disqualifications were not needed by the McIntyre interests, a fact apparently not known to his team at the time. McCloskey supporters were able to characterize the state recount as a sham and obtain a federal recount overseen by the House of Representatives.
Sound familiar?
Some Democrats have no interest in a serious analysis of what happened in Florida, however. Like Terry McAuliffe. Clinton money-man and, as of February 3, 2001, chairman of the Democratic National Committee.
“Folks, let us never forget it,” McAuliffe says at his inaugural address as DNC chair. “Al Gore won that election….If Katherine Harris, Jeb Bush, Jim Baker, and the Supreme Court hadn’t tampered with the results, Al Gore would be president, George Bush would be back in Austin, and John Ashcroft would be home reading Southern Partisan magazine.
“George Bush says he’s for election reform. Reform this,”bellows McAuliffe. “I say park the state police cars, take down the roadblocks, stop asking people of color for multiple forms of ID, print readable ballots, open the polling places, count all the votes, and start practicing democracy in America.”
McAuliffe later claims that his speech was just intended to fire up the Democratic base, but such rhetoric is just as overheated, spurious, and fact-deficient as the various speeches made by Republicans—like, say, Racicot—during the recount. Which may be, regrettably, the lesson Democrats learned from this: Lie all you want, it doesn’t matter. The media won’t call you on it, and if they do, who cares? Surely this is not a healthy development.
But what of the charges of wholesale intimidation of African-Americans? I have no doubt that there were shady instances where blacks didn’t get to vote, but even Henry Latimer, the civil rights attorney made point man on this issue by the Gorebies, doesn’t allege any grand conspiracy. That surely won’t prevent Democrats like Jesse Jackson and other demagogues from making claims devoid of fact, or evidence, of continuing to exploit Florida for political gain.
Truth is, though the NAACP and other civil rights organizations continue to rail against the disenfranchisement of black voters, the most glaring instances of black Floridians’ votes not being counted—in Duval County—is due to a toxic combination of two things: (1) ballot spoilage from new voters and uneducated ones, and (2) inattentiveness to the issue of ballot spoilage, rooted in the indifference of elections officials. It might score McAuliffe political points to paint a picture of Election Day in Florida that conjures images of Bull Conner and civil rights struggles of generations ago, but the reality is far more complex.
When I asked David Leahy about the voting machines that failed that Election Day morning test at Dunbar and Evans Elementary schools (mentioned in chapter 1), he said that he wasn’t concerned, since the machines had worked fine in the warehouse. This seemed a rather flippant comment to make about the precincts with the highest percentage of unread ballots in the county. But while African-American activists in Miami-Dade are fired up and trying to get the caucasian Leahy replaced, they should remember one thing: a lot of the elections workers—like Evans Elementary precinct clerk Donna Rogers—are African-American. And Rogers, when I interviewed her, not only didn’t accept any responsibility for what happened in her precinct, she refused to even believe that it happened. Undervotes, overvotes, and hanging chad have been around for a long time. Where were Congressmen Deutsch and Wexler—or Commissioner Suzanne Gunzburger, for that matter—when Broward County supervisor of elections Jane Carroll, a Republican, was trying to secure funds to buy Opti-scan machines for the county? How could Iowa governor Tom Vil-sack rail against undervotes in Florida when his own state had its share as well?
That said, when elections supervisors complained to Katherine Harris and Clay Roberts about poorly functioning machines, or about the horribly inaccurate ChoicePoint felons list, many were greeted with what they felt to be complete and utter disregard. Did the fact that these problems hurt black, Hispanic, and underclass voters disproportionately play a factor in their indifference? I don’t know. But it’s probably safe to say that if these problems had been causing a stir among Sarasota Republicans—or if election reform had been a pet cause of state senate president John McKay—then Harris would have been a bit more attuned to it, committed to working on it. Who knows? Maybe she would have even allocated some of the funds she spent jetting off to Australia to set up the Florida pavilion at the Olympic Games.
But while we’re looking for people to blame, let’s not
forget how Harris and Roberts got to their positions of power. Clay Roberts was appointed by Jeb Bush who, along with Harris, was elected by the good citizens of Florida on November 3, 1998. Many of the same good citizens whose votes didn’t count because they didn’t bother to check the instructions on the ballot box and who now are looking for a scapegoat.
Which is the point: We, as Americans, are to blame for what happened in Florida. Whomever you think the subtitle of the book applies to, we are the ones who let him try to steal a presidency. We are the ones who haven’t cared about hanging chad in the past, who didn’t inform new voters of how to make sure their votes are read by the machine, who elected legislators who passed vague and conflicting laws, who nominated Gore and Bush to begin with. Gore, whose advocates bullied various Florida elections officials, who was willing to stake a presidential victory on dimpled ballots that not even Bob Kerrey considered votes in three Democratic counties. Gore, who said “count all the votes,” but made no true move to have that done. Gore, who couldn’t even win his home state, who had to struggle to win an election against a candidate as weak as Bush at a time of unprecedented peace and prosperity. Gore, the self-proclaimed champion of environmental and consumer causes, whose lusty capitulation on such issues propelled the candidacy of Green Party candidate Ralph Nader—who garnered roughly 97,000 votes in Florida alone. Gore, who was, at the very bottom of it all, a rather unappealing candidate who seemed to have not only no sense of vision but no sense of himself.
And then, of course, you have the winner, George W. Bush, who let General Baker run it all for him, who thought what happened in Miami-Dade was funny, who let Hughes, Fleischer, Eskew, Rove, Bartlett, Racicot, Baker, go out and say things on his behalf that just simply were not true, things that bashed judges and justices who were—however imperfectly—trying to make sense in an insane world.
The man in charge of the overseas absentee ballots for Bush was Warren Tompkins, who we all know was also in charge of the ugliest primary contest in modern history—the battle for South Carolina, fought against Sen. John McCain. How was it that Bush was allowed to walk out of South Carolina without the media or the Gore campaign reminding him of the disgraceful, disgusting, loathsome way he and his campaign secured a victory? How is it that our president is on a first-name basis with a man like Warren Tompkins to begin with? Or does the mere fact that Bush has been preceded by characters like Clinton and Nixon make that question asked and answered?
We have set up a world where great men do not get nominated for the presidency—only ruthless, power-mad pols with hollow centers, surrounded by political mercenaries. We have set up a world where the candidate with the more effective liars and more cutthroat scoundrels wins. Perhaps our displeasure with the products of this machinery is the reason we got into this mess in the first place.
Dirty politics and hollow rhetoric are not new to America, but in recent decades, as money and television and mass marketing have saturated the political process, the office of the presidency has been terribly tarnished. Nixon and Clinton certainly did their damage, but they weren’t the only ones. We’re a coarser society, an angrier place, made all the more so by the billions of dollars to be made in exploiting the worst in us. In 2000 we had two men running for the highest office in the land, and many of us thought neither of them truly up to the task. So perhaps there really wasn’t a presidency left to steal. You can look at dimpled ballots, questionable judicial decrees, lazy reporters, family ties, and too much money. You can scour the Florida swamps in search of submerged Votomatics. You can file Freedom of Information Act requests to track down mash notes between people who were supposed to be neutral and folks who were rabid partisans. You can look at Florida—or Iowa, or New Mexico, or just about any state—and wonder how its residents feel, knowing so many votes are routinely misread and discarded. You can look at sleazy political operatives and cutthroat lawyers and politicized judges. But if you really want to know who’s responsible for what went down in the Sunshine State, you might want to take a look in the mirror.
Notes
Chapter 1
1. Tamala Edwards, “O Brother, Where Art Thou?,” Salon.com, Dec. 19, 2000.
2. Maxine Jones, “The African-American Experience in Twentieth-Century Florida,” essay in The New History of Florida, Michael Gannon, ed. (Gainesville: University Press of Florida, 1996).
3. Glenda Alice Rabby, The Pain and the Promise: The Struggle for Civil Rights in Tallahassee, Florida (Athens: University of Georgia Press, 1999).
4. Gregory Palast, “Florida’s ‘Disappeared Voters’: Disfranchised by the GOP,” The Nation, February 5, 2001.
5. John Mintz and Dan Keating, “Minority Undercount Rate Higher,” Washington Post, Dec. 3, 2000.
6. Paul Brinkley-Rogers, “County Had Highest Rate of Invalid Ballots,” Miami Herald, Dec. 3, 2000.
7. Mintz and Keating.
8. Frances Robles and Geoff Dougherty, “Ballot Errors Rate High in Some Black Precincts,” Miami Herald, Nov. 15, 2000.
9. William Cooper, Jr., and Alexandra Clifton, “Glades Blacks’ Ballots Tossed More Than Average,” Palm Beach Post, Nov. 18, 2000.
Chapter 2
1. John Ellis, Inside.com, Dec. 2000.
2. Jane Mayer, The New Yorker, Nov. 20, 2000.
3. Evan Thomas and Michael Isikoff, “The Truth Behind the Pillars,” Newsweek, Dec. 25, 2000.
4. Alicia C. Shepard, “How They Blew It,” American Journalism Review, Jan. 2001.
5. Seth Mnookin, “It Happened One Night,” Brill’s Content, Dec. 12, 2000.
6. T. Trent Gegax, Newsweek, Nov. 20, 2000.
7. Gegax.
Chapter 4
1. Glen Simmons et al., Gladesmen, Gator Hunters, Moonshiners, and Skiffers (Gainesville: University Press of Florida, 1998).
Chapter 5
1. Adam Cohen and Elizabeth Taylor, American Pharaoh: Mayor Richard J. Daley, His Battle for Chicago and the Nation (New York: Little, Brown, 2000).
2. Edmund Kalina, Courthouse over White House: Chicago and the Presidential Election of 1960 (Orlando: University of Central Florida Press, 1988).
Chapter 10
1. The Harris quotes from the Florida-FSU game come from the ABC News producers Chris Vlasto and Eric Avram, great Americans both.
Chapter 12
1. Clay Lambert and Bill Douthat, “Miami-Dade Ballot Recount,” Palm Beach Post, Jan. 14, 2000.
Chapter 20
1. John Dickerson, “Home on the Range: The Bush Ranch Is the Way He Likes to See Himself—Rugged and Thoroughly Texan,” Time, Dec. 25, 2000.
2. Much of this is common sense to anyone who delves into the opinions, but I’m indebted to the best Supreme Court reporter in the country, Joan Biskupic of USA Today, for her Jan. 22, 2001, story, “Election Still Splits Court.”
APPENDIX
The Unfiled Gore Brief of December 13, 2000
IN THE SUPREME COURT OF THE STATE OF FLORIDA
_______________________
CASE NO. SC00-2431
On Appeal from the Second Judicial Circuit
CASE NO. 1D00-4745
_______________________
ALBERT GORE, Jr., Nominee of the Democratic Party of the United States for President of the United States, and JOSEPH I. LIEBERMAN, Nominee of the Democratic Party of the United States for Vice President of the United States,
Appellants,
vs.
KATHERINE HARRIS, as SECRETARY OF STATE STATE OF FLORIDA, and SECRETARY OF AGRICULTURE BOB CRAWFORD, SECRETARY OF STATE KATHERINE HARRIS and L. CLAYTON ROBERTS, DIRECTOR, DIVISION OF ELECTIONS, individually and as members of and as THE FLORIDA ELECTIONS CANVASSING COMMISSION,
and
THE MIAMI-DADE COUNTY CANVASSING BOARD, LAWRENCE D. KING, MYRIAM LEHR and DAVID C. LEAHY, as members of and as THE MIAMI-DADE COUNTY CANVASSING BOARD, and DAVID C. LEAHY, individually and as Supervisor of Elections,
and
THE NASSAU COUNTY CANVASSING BOARD, ROBERT
E. WILLIAMS, SHIRLEY N. KING, AND DAVID HOWARD (or, in the alternative, MARIANNE P. MARSHALL), as members of and as the NASSAU COUNTY CANVASSING BOARD, and SHIRLEY N. KING, individually and as Supervisor of Elections,
and
THE PALM BEACH COUNTY CANVASSING BOARD, THERESA LEPORE, CHARLES E. BURTON AND CAROL ROBERTS, as members of and as the PALM BEACH COUNTY CANVASSING BOARD, and THERESA LEPORE, individually and as Supervisor of Elections,
and
GEORGE W. BUSH, Nominee of the Republican
Party of the United States for President of the United
States and RICHARD CHENEY, Nominee of the
Republican Party of the United States for
Vice President of the United States,
Appellees,
CASE NO.
ALBERT GORE, Jr., Nominee of the Democratic Party of the United States for President of the United States, and JOSEPH I. LIEBERMAN, Nominee of the Democratic Party of the United States for Vice President of the United States,
Petitioners,
vs.
KATHERINE HARRIS, as SECRETARY OF STATE STATE OF FLORIDA, and SECRETARY OF AGRICULTURE BOB CRAWFORD, SECRETARY OF STATE KATHERINE HARRIS and L. CLAYTON ROBERTS, DIRECTOR, DIVISION OF ELECTIONS, individually and as members of and as THE FLORIDA ELECTIONS CANVASSING COMMISSION,
Respondents.
BRIEF OF RESPONDENTS ALBERT GORE ET AL.
ON REMAND FROM THE UNITED STATES SUPREME COURT
W. Dexter Douglass
Florida Bar No.0020263
Douglass Law Firm
211 East Call Street
Tallahassee, Florida 32302
Telephone: 850/224-6191
Facsimile: 850/224-3644
Ron Klain
c/o Gore/Lieberman Recount
430 S. Capitol St.
Washington, DC 20003