As soon as I heard that Al Gore had won a Nobel Peace Prize, I could not help recalling the prize he had won but which was denied him: the American presidency. We should not forget how much America lost in that election. Every fact in this brief account can be verified in detail. We can’t put the past behind us because we are living with its awful consequences.
Vice President Al Gore had a more than half-million vote plurality over Texas Governor George W. Bush, but victory depended on which candidate won Florida’s electoral votes. In the early Florida vote count after Election Day in 2000, the official difference between them was less than three-hundredths of one percent (0.0299) of the total, and the Florida Election Code required an automatic recount in every one of the state’s 67 counties if the margin of victory is less than one-half of one percent. It never took place. Two weeks after the election, the Florida Supreme Court unanimously ruled that hand counts must be included in the vote totals. Every possible obstacle was placed in the path of conducting such a count. Texas, the state of which Bush was governor, required that all punch-card ballots should be counted where a chad (the piece punched out by the voter) is not completely detached, with the overriding concern being the “clearly ascertainable intent of the voter.” But that was not the intent of those who acted on behalf of candidate Bush.
The strategy of the Bush camp was to prevent a full recount before December 12, after which date Florida could avoid a challenge by another slate of electors, should the complete vote reveal that Gore had in fact won. The tactics employed were to stall, delay, object, and terminate the vote counts that had been undertaken in order to prevent a full recount before that date. When Secretary of State Harris declared Bush the victor without a recount, the Florida Supreme Court extended the vote count deadline. The Republican-controlled Florida legislature was called into special session to appoint electors pledged to Bush.
On December 8, the Florida Supreme Court ordered an immediate manual recount of all ballots on which no vote had been machine-recorded. On the next day, shortly after the Miami-Dade County manual count resumed, the Supreme Court halted the hand count. It heard arguments the following day (December 10), waited a weekend, and on December 12 announced it was now too late to conclude the count. As much as the 5-4 Supreme Court majority wanted to shoot down Gore’s candidacy, they wanted someone else to fire the shot. Whether motivated by propriety or cowardice or political calculation, they wrote an opinion returning the case to the Florida Supreme Court, but the Florida court was not allowed to formulate a rule for continuing and concluding the hand count, or to do anything except declare that Gore’s candidacy was dead. The following day, Gore conceded defeat. This shameless stealing of the election after the votes were cast was exceeded only by the tactics employed to manipulate the voting itself.
Voters were denied the opportunity to cast their votes. Evidence demonstrates that the names of black voters were removed from registration rolls, voting sites were moved without notification, ballot boxes were uncollected, polling places were understaffed, language assistance was denied, and voting machines were unreliable. Secretary of State Harris, without competitive bidding, hired a private company to compile lists of convicted felons who should be barred from the polls. Many on the lists were innocent people who had names that sounded like those of convicted felons (no effort was made to check the names against Social Security numbers), many had been convicted only of lesser crimes (a misdemeanor conviction does not involve losing the right to vote), and thousands had been convicted and served time in the thirty-seven states that restore citizenship rights. Jeb Bush and Harris both testified under oath that the verification of the felon lists was neither their responsibility nor that of the company that compiled the lists. A University of Minnesota study estimated that if 80 percent of those unfairly barred from voting had voted, this would have resulted in more than 35,000 more votes for Gore and 4000 for Bush.
Voters who were not helped when they should have been. Although Florida law allows disabled voters to have another person assist them, ballots were disallowed from elderly or disabled voters whose signatures did not match the old originals.
Illegal voters and others were helped who should not have been. The Seminole County elections supervisor allowed the Republicans two weeks to make corrections and resubmissions on thousands of absentee ballots. In Martin County, Republicans were allowed to add identification numbers to application forms for absentee ballots and to remove applications from the elections supervisor’s office. In addition, The Miami Herald found that ineligible voters were allowed to sign in at polls where they were not registered.
Voters were unconstitutionally misled. As required by law, the local newspaper in Duval County printed a sample ballot. It stated that voters should vote on every page, but the names of the presidential candidates were printed on two pages. Voters who followed that instruction cast voided ballots. Thirty percent of the undercounted ballots in Duval County were cast in heavily black precincts that voted ten-to-one for Gore. As a consequence of this two-page presidential ballot and the improper instructions that accompanied it, Duval County discarded more than three times as many ballots in 2000 (26,909) as it had in 1996 (7762).
In Palm Beach County, the so-called butterfly ballot listed candidates’ names on facing left-hand and right-hand pages. The major party candidates were listed on the left-hand page, with Bush first and Gore second. Patrick Buchanan was listed first among the minor party candidates on the right-hand page. Voters had to punch a hole in a middle column that combined the lists, alternating names of candidates from the left and right. This meant that Bush, first on the left was first in the center, while Buchanan was listed next, and Gore, who was second on the left in the list of candidates, was third in the center column where voters made their choice. A voter could reasonably assume that the candidate listed second would appear second in the order in which they voted. In that way thousands of Palm Beach County voters who intended to vote for Gore mistakenly voted for Buchanan.
This ballot format violated Florida law that clearly specifies that votes must be cast to the right of the candidate’s name. It also violated common sense in requiring that a vote for the second candidate on the ballot (Gore) meant punching the third hole, and a vote for a candidate much lower on the ballot (Buchanan) meant punching the second hole. Because many voters recognized their error, they punched two holes, invalidating their ballots.
Buchanan received one-fifth (19.6 percent) of the Palm Beach vote, compared with one-twentieth (5.4 percent) in 1996, when the butterfly ballot was not used. It takes a leap of faithlessness to believe that Buchanan received his greatest support in a precinct consisting of a Jewish old age home with Holocaust survivors, who until that election had despised Buchanan. To his credit, Buchanan publicly stated his belief that these voters had not intended to vote for him. Analyses indicate that he received between 2000 and 3000 votes that had been intended for Gore, vastly more than Bush’s official victory margin of 537 votes.
The votes of many voters were not recorded through no fault of their own. One-third of all Florida voters lived in punch-card counties with a high proportion of low-income, minority, and first-time voters, in which it was nearly three times as likely that their ballots would be rejected as would the ballots of voters in counties using optical systems. (An inventor of the punch-card machine testified as to its unreliability.) Dimpled ballots, that is, punch-card ballots in which an indentation has been made but there is no visible hole, were counted in Texas, Illinois, Massachusetts and other states, but not in Florida. It is not surprising that Palm Beach County with its butterfly ballot and Duval County with its improper instructions to voters, and both with all the problems associated with punch-card voting, had thirty-one percent of the uncounted ballots, even though they cast only twelve percent of the statewide vote.
There were voters whose intentions were clear but whose votes were never counted. Thousands of voters indicated their preference of a candidate in the normal fashion and then wrote in the name of the same candidate in the place reserved for write-in votes. (This could not occur when voting on optical scanners.) Whether due to oversight or ignorance, these voters had not followed instructions, but their intentions were unmistakable. Whatever form the voting procedure takes, it is not designed to be an intelligence test or anything but an expression of the voter’s intention. Voters who emphasize and underline their choice of candidate by both punching a ballot and writing in the same candidate’s name have made the most unmistakable demonstration of their intention. Had the overvotes been counted, Gore would have received many times more votes than were necessary to overcome Bush’s official lead.
In retrospect, it is evident that the media exit polls on Election Day that called Florida for Gore were correct, because they reported the intentions of the voters who went to the polls and who believed that they had cast valid ballots. The National Opinion Research Center of the University of Chicago was hired by a consortium consisting of The New York Times, Washington Post, Wall Street Journal, and other newspapers to undertake a first count of approximately 120,000 overvotes (where voters appeared to have made two choices, even if both were for the same candidate) and 60,000 undervotes (where the machine count had not revealed the voter’s choice).
The consortium calculated eight ways of counting disputed punch-card votes – correctly marked paper ballots, full punches, poorly marked paper ballots, chads detached at three corners, chads detached at two corners, chads detached at only one corner, dimpled ballots with sunlight, or only dimples -– and concluded that Gore would have won the Florida vote by every one of the eight methods. Of course, no examination after the fact could take into account the thousands of voters who had mistakenly voted for Buchanan instead of Gore, the thousands who compounded their mistake by voting for both Buchanan and Gore, and the would-be voters who had been turned away from the polls or were discouraged from voting because of intimidation or the improper appearance of their names on lists of felons barred from voting.
Judicial involvement and determination of the result represented an unconstitutional intervention in the political process, because it violated the Electoral Count Act. That Act, adopted to prevent a repetition of the misguided judicial involvement in the election of 1876, states that Congress is the primary body to resolve any lingering contention after the states have tried to settle electoral disputes. It is an authority that was never given to the courts.
Who were the Justices who so egregiously made it impossible to ascertain the true will of Florida voter, acted contrary to their long-proclaimed deference to states’ rights, and awarded the election to the candidate who had lost the vote? During the 1986 hearings on William Rehnquist’s nomination as Chief Justice, five witnesses testified that Rehnquist had harassed black and Latino voters at Arizona polling places in 1962, demanding to know if they were “qualified to vote.” Justice Antonin Scalia’s son was a member of the law firm of Theodore Olson, who argued the Bush case before the Supreme Court. Justice Clarence Thomas’s wife was employed by the ultra-conservative Heritage Foundation to vet prospective office-holders in a future Bush administration. When Justice Sandra Day O’Connor heard Dan Rather call Florida for Gore on CBS, she exclaimed, “This is terrible.” Her husband explained to other guests at the election night party they were attending that his wife was upset because they wanted to retire to Arizona, and a Gore win meant that they would have to wait at least another four years. These facts demonstrate not illegal conduct, but indifference to avoiding the appearance of impropriety, which would have led them to remove themselves from consideration of the case.
Gore would have won Florida and the election had there been an immediate recount in every one of Florida’s 67 counties or just a revote in Palm Beach County. An unprecedented political juggernaut was rolled out to ensure that this would not happen. It employed the political power and resources of Governor Jeb Bush, the presidential candidate’s brother, who recruited his own political operatives and volunteers to move into disputed counties; James Baker, the Bush family’s consigliere, who masterminded the teams of lawyers and political operatives who engaged in “spontaneous demonstrations,” including a window-pounding protest that succeeded in halting the Miami-Dade County recount (many participants were rewarded with appointments in the Bush administration); Secretary of State Katherine Harris, co-chair of George W. Bush’s Florida campaign, who was prepared to change the rules and interpret the results as proved necessary in order to insure Bush’s election; the Florida House of Representatives, which voted on party lines to appoint electors pledged to George W. Bush, irrespective of how the recounts turned out, and the Florida Senate, which was prepared to cast a similar vote if the U.S. Supreme Court had not resolved the election in Bush’s favor, and finally the five predictable members of that Court.
The most fundamental elements of an American presidential election include the right of all qualified citizens to cast a vote, an accurate count of all discernible votes, and the awarding of a state’s electoral votes to the candidate whose slate of electors received the most votes. None of those conditions were met in Florida in 2000. The great pleasure that most Americans feel upon Gore’s winning the Nobel Peace Prize must be tempered by our awareness that a corrupt coalition denied him the presidency after winning the election. There are banana republics that conduct more honest elections than the United States did in 2000. It was the first time that Al Gore taught us an inconvenient truth.
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Stanley Feingold
Monday, October 15, 2007
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