by Jake Tapper
In Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998), ballots which were defectively marked and thus unreadable by the scanner had to be hand-counted to determine the intent of the voter. Manual recounts may be particularly necessary in reviewing overvotes on optical scan ballots, where it is frequently clear that the voter colored in or otherwise marked the oval or arrow assigned to the indicated candidate, but that mark was not counted as a vote for that candidate because other marks also registered on the machine. Just as in Darby, when an “x” marked the wrong spot but it was clear from that “x” that the voter was casting the vote a certain way even though the ballot was not marked in the manner specified by the voting instructions, so it must be that when there are markings on an overvote ballot that make it clear from the ballot who the voter’s intended candidate was, that vote must be counted. See Darby 75 So. At 412. 7
This is not a new standard in Florida. It has been Florida law since its inception. When a vote can be counted, the will of the voter is recognized. Simply because machines aid in tabulation, when those machines fail to tabulate legal votes, this Court should not let such failures void legal votes and thereby disenfranchise Florida voters. 8
CONCLUSION
For the reasons stated, on remand from the U.S. Supreme Court, this Court should address the three conditions necessary to conduct the statewide recount of contested votes that this Court had already found was necessary to complete the pending judicial contest and determine the rightful winner of Florida’s electoral votes. As discussed herein, this Court should: (1) adopt adequate statewide standards for determining legally valid votes; (2) impose practicable procedures to implement them; and (3) provide for orderly judicial review of any disputed matters that might arise. These conditions can be met by an immediate order of this Court, and a full and accurate tally of the votes could be finally achieved, just as this Court directed as a matter of state law five days ago.
Respectfully submitted,
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
Telephone: 202/863-8000
Facsimile: 202/863-8603
David Boies
Boies, Schiller & Flexner LLP
80 Business Park Drive, Suite 110
Armonk, New York 10504
Telephone: 914/273-9800
Facsimile: 914/273-9810
Jeffrey Robinson
Baach Robinson & Lewis
One Thomas Circle, Suite 200
Washington, DC 20003
Telephone: 202/833-7205
Facsimile: 202/466-5738
Andrew Pincus
c/o Gore/Lieberman Recount
430 S. Capitol St.
Washington, DC 20003
Telephone: 202/863-8000
Facsimile: 202/863-8603
Kendall Coffey
Florida Bar No. 259861
2665 S. Bayshore Drive, Suite 200
Miami, FL 33133
Telephone: 305/285-0800
Facsimile: 305/285-0257
John J. Corrigan, Jr.
896 Beacon St.
Boston, MA 02215
Telephone: 617/247-3800
Facsimile: 617/867-9224
Mark R. Steinberg
2272 Live Oak Drive West
Los Angeles, CA 90068
Telephone: 323/466-4009
Benedict E. Kuehne
Florida Bar No. 233293
Sale & Kuehne, P.A.
100 S.E. 2d Street, Suite 3550
Miami, FL 33131-2154
Telephone: 305/789-5989
Facsimile: 305/789-5987
Dennis Newman
580 Pearl St.
Reading, MA 01867
Telephone: 781/944-0345
Facsimile: 617-742-6880
COUNSEL FOR ALBERT GORE, JR., AND JOSEPH I. LIEBERMAN
Notes
1. In any event, Justice Breyer correctly pointed out that whether it would be possible to finish or not was “a matter for the state courts to determine,” Id. at 3 (Breyer, J., dissenting). Even more, this is a prediction of fact, not a point of law, on which the record was inconclusive.
2. This Court can therefore impose an interim plan to remedy the equal protection problems noted by the U.S. Supreme Court. The Legislature would be free at a later date to choose the same or a different remedy to govern future elections.
3. When quick action is needed to remedy an equal protection problem that threatens an active election cycle, courts may propose an interim solution to remedy the problem pending legislative action. See, e.g., Burns v. Richardson, 384 U.S. 73, 85–86 (1966); Reynolds v. Sims, 377 U.S. 533 (1963).
4. 65 out of 67 counties in Florida use either opti-scan ballots or punchcard ballot systems. In addition, Martin County uses both punchcard ballots and a mechanical voting system and Union County uses manually-tabulated paper ballots. See election.dos.state.fl.us/votemeth/cvs.shtml.
5. During proceedings of the Miami-Dade County Canvassing Board Hand Recount, Supervisor of Elections David Leahy stated that the unvoted ballots had been separated out by the card readers the previous day. See Miami-Dade Transcript (Nov. 20, 2000), at 7. See also Miami-Dade Tr. at 4 (Nov. 18, 2000) (Judge King stating that his “first recommendation is to use the software and the program that was developed for us to identify the undercounted ballots in the presidential race… and that we would run the ballots through the readers”). Again, the software program is designed to stop where there is not a punch for a presidential candidate and those ballots would be segregated but kept with the precinct.
6. Examples of overvote ballots in the record include a damaged ballot on which the voter wrote in the phrase “Al Gore for President” but was not counted (Tr. Palm Beach County Bd. 11/18/00, at 94–97), and ballots where the voter mistakenly voted for one presidential candidate, taped over the wrongly punched chad and then voted for Al Gore, but was not counted (Tr. Palm Beach County Canvassing Board, 11/19/00, at 66, 75–76, 82, and 84–85). The clear intent of the voter standard outlined herein would address these overvote ballots and allow them to be counted for the appropriate candidate.
7. This standard is well represented in Florida law through the years. See State ex rel. Carpenter v. Barber, 198 So. 49 (Fla. 1940) (“The intention of the voter should be ascertained from a study of the ballot and the vote counted, if the will and intention of the voter can be determined, even though the cross mark “x” appears before or after the name of said candidate”) (citing Wiggins v. Drane, 144 So. 62; Nuccio v. Williams, 120 So. 310; State ex rel. Knott v. Haskell, 72 So. 651).
8. As this Court noted in its quotation from the Illinois Supreme Court case of Pullen v. Mulligan, “The legislature authorized the use of electronic tabulating equipment to expedite the tabulating process and to eliminate the possibility of human error in the counting process, not to create a technical obstruction which defeats the rights of qualified voters. This court should not, under the appearance of enforcing the election laws, defeat the very object which those laws are intended to achieve. To invalidate a ballot which clearly reflects the voter’s intent, simply because a machine cannot read it, would subordinate substance to form and promote the means at the expense of the end.” Harris v. Palm Beach County Canvassing Bd., Slip op. at 34–35 (quoting Pullen v. Mulligan, 561 N.E.2d 585, 611 (Ill. 1990)).
* After he learned that a Democrat in Columbia, South Carolina, named Sam Tanenbaum was supporting McCain, Bush mentioned Tanenbaum’s name with suspicious frequency. Additionally, Christian activist Pat Robertson placed thousands of prerecorded phone calls to likely supporters, letting them know that McCain’s New Hampshire campaign had been co-chaire
d by “an anti-Christian bigot”—former New Hampshire Republican senator Warren Rudman, a Jew. (Rudman himself, not exactly a Gore supporter, feels that this was Jew-baiting.) Rudman’s religion was mentioned, and his name was mispronounced in other pro-Bush Christian conservative–channeled phone calls to sound more ethnic,“ROOD-mahn.”
* This anti-Bush African-American zeitgeist will be outdone, remarkably, in Bush’s home state of Texas, where a full 95 percent of black voters will pull levers against the self-described compassionate conservative.
* In the coming days, assistant state attorney general Paul Hancock will say that the FHP checkpoint “was not done in accordance with normal procedure.” By not getting the location approved, or announcing the checkpoint ahead of time to the media, the checkpoint violated standard FHP protocol.
* In a July 3, 1999, op-ed for the Boston Globe entitled “Why I Won’t Write Any More About the 2000 Campaign,” then-columnist Ellis wrote,“I am loyal to my cousin, Governor George Bush of Texas. I put that loyalty ahead of my loyalty to anyone else outside my immediate family. That being the case, it is not possible for me to continue writing columns about the 2000 presidential campaign. A columnist’s allegiance must be to the reader. This is an annoying and pretentious thing that journalists say, but it is, in fact, true. Columns depend upon trust…. There is no way for you to know if I am telling you the truth about George W. Bush’s presidential campaign because in my case, my loyalty goes to him and not to you.”
* As with “fish” or “sheep,” the correct plural of “chad” is actually “chad.”
* In an interview on January 16, 2001, Ron Klain will say, “What’s so interesting and ironic about this, as this process unfolded, the decision by us that’s been the most second-guessed was, Why not the whole state?’ At the time, the pressure we felt was the exact opposite pressure…. It’s painfully ironic; the pressure we felt was to count as little as possible, to keep the thing limited and confined.”
* When I ask Daley what would have been the reaction had a first cousin of Gore been the one to call the election for Gore for one of the networks, he laughs. “They would indict him!” He guffaws. “[Congressman Dan] Burton [R-Ind.] would haul him before his subcommittee!”
* In January 2001, Jacobs will tell me that he was not lying, that he “did not know the breadth or the depth of the involvement” of Berger on the Gore team. He’ll say that he simply assumed that Berger—as well as Democratic National Committee counsel Joe Sandler, with whom he had also spoken by the time of the Hardball interview—were just outraged Democratic volunteer lawyers, much like him. That may have been true at the time of the talk, but it strains credibility that by November 29 Jacobs was still unaware of Berger’s involvement.
* And it will turn out that, as Butterworth tried to explain to judges Rouse and McDermott, many of these fifty-three counties didn’t even conduct a recount—some just double-checked their computer numbers with the total, some didn’t even do anything at all.
* The days following the nail-biter August 1948 runoff between LBJ and Gov. Coke Stevenson had plenty of vote buying and malfeasance on both sides. After a few days of this, however, LBJ was still behind by 157 votes. Until, six days after the election, in the town of Alice, 202 additional votes were found for LBJ in the fabled “Precinct Box 13.” All of these votes, except for 2, went for LBJ, who thus won the election by 87 votes. These 202 voters had supposedly come to Precinct 13 and signed in using a different color ink than the previous 840 or so voters—and in alphabetical order. In a subsequent investigation, not one of the 202 voters claimed to have voted that day, and some even were, of course, not alive at the time of the election.
† When I interviewed them in December 2000, both Bartlit and his law partner Philip Beck—Illinois residents who worked on Bush’s legal team—expressed deep admiration for both Richie and Bill Daley. Both used the word “cheap” to describe Republican potshots against Daley because of the sins of his father.
* When it’s all over, Keating will be denied a position in the Bush cabinet at least partially because of questions about his ethics, namely his acceptance of personal gifts of approximately a quarter of a million dollars from a financier.
* Actually, the “large unexplained shifts” have perfectly legit explanations: incompetence. In Palm Beach, it turns out that on Election Night, the card-reader computer operator inadvertently hit “cancel” instead of “accept” when reading the cards for West Palm Beach precinct 29-E. The mistake was corrected. In Pinellas County on Election Night, according to Republican elections supervisor Deborah Clark, one election worker counted 937 absentee ballots twice, and another completely missed counting 1,435 absentee ballots. So Gore was awarded an additional 417 votes from the Election Night count, and Bush lost 61. Nothing conspiratorial about either occurrence, however much making such a charge served Baker’s duplications ends. Baker will never correct himself.
* United States Code, Title 3, Section 5 states that if “any State shall have provided, by laws enacted prior to” Election Day a way to settle any “controversy or contest” of the election “by judicial or other methods or procedures” and the shit’s all come down and been decided by six days before the electors are to meet, December 18, that law “shall be conclusive.” The argument can be made, of course, that what’s going on is just “judicial or other methods or procedures,” but the Bushies will show an interesting propensity to omitting that clause from their briefs.
* After it’s all over, I’ll go to hear a talk by Broward County commissioner Suzanne Gunzburger at a breakfast meeting of the Hollywood Hills Democratic Club at Orangebrook Country Club. There many members of the largely Jewish group—including several who think Bush stole the election—will roll their eyes and throw out a disgusted “Feh!” when I mention Jackson’s name.
* The thoroughly soporific items of law Harris depends upon are: “101.111 (1) Immediately after certification of any election by the county canvassing board, the results shall be forwarded to the Department of State concerning the election of any federal or state officer. The Governor, the Secretary of State, and the Director of the Division of Elections shall be the Elections Canvassing Commission. The Elections Canvassing Commission shall, as soon as the official results are compiled from all counties, certify the returns of the election and determine and declare who has been elected for each office. In the event that any member of the Elections Canvassing Commission is unavailable to certify the returns of any election, such member shall be replaced by a substitute member of the cabinet as determined by the Director of the Division of Elections. If the county returns are not received by the Department of State by 5 P.M. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.”
and
“102.112 (1) The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after certification of the election results. Returns must be filed by 5 P.M. on the seventh day following the first primary and general election and by 3 P.M. on the third day following the second primary. If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.”
* The actual date for this, of course, is December 18.
* “Beckstrom” is a case that will be bandied about quite a bit. It stems from a November 1996 sheriff’s election in Volusia County, in which fraud was alleged against the winner by Gus Beckstrom, the loser. In March 1998, the Florida Supreme Court upheld a circuit court judge’s ruling that Beckstrom still was the loser—but it disagreed with one sentence in the trial court judge’s decision: “I do not have jurisdiction to set aside this election.” “The trial court clearly had jurisdiction” to do so if it wanted, the Florida Supreme Court wrote. “Thus, the correct statement is that the trial court fo
und no factual basis for requiring that the election be set aside.”
* It’s apparently this incident, as well as questions about how much Harris has spent on official travel, that leads Harvard Law professor Alan Dershowitz to say to CNN on November 14 that Harris is “corrupt. She’s had all kind of corruption allegations about expenditures of money. She’s a crook. She’s a crook and an operative of the Bush campaign.” Dershowitz is too smart to commit slander, but this is pretty close to it, were it not so amusing coming from an attorney who helped ensure the freedom of O. J. Simpson and Claus von Bulow.
* Stolen from MAD magazine’s December 1976 parody of All the President’s Men.
* In an interview on January 15, 2001, I’ll ask Boies if while he was in Florida he wasn’t wasting his time when he would talk to the media instead of preparing for trial, working on the case. He’ll say to me, “What do you think working on a case’ is? It’s thinking, it’s answering questions, it’s refining the arguments. And this was not a situation like in antitrust cases, where there are lots of obscure market-definition issues and you have to go into records and cases and research. When I got on the plane, I had in my hand the stack of statutes and cases Jonathan had pulled for me,” and there weren’t very many more cases he needed to learn about, he says. “This was not a situation where there was a great deal of undone legal analysis. A lawyer needs to be able to answer any questions the court is going to have; lots of lawyers have elaborate moot courts, which I don’t do because I find them artificial. There weren’t any questions that the Florida Supreme Court asked me that hadn’t been asked to me by members of the press, sometimes several times.”