Election
Intensifies Inaugural Protests
Several Groups Have Planned Demonstrations
By David
Montgomery and Arthur Santana
Washington Post Staff Writers
Thursday, December 21, 2000; Page A10
The raw wounds left by the
presidential election finale have created enough irritation to unleash one
of the largest inauguration protests in years, according to veteran
organizers and police officials.
"This will be by far the biggest counter-inauguration since the
1973 Nixon counter-inauguration," predicted Brian Becker, co-director
of the International Action Center in New York, who has demonstrated at
numerous presidential swearing-in events. "We organize protests not
infrequently, and we know when something has legs and when it doesn't have
legs. This one does."
At the second inauguration of President Richard M. Nixon, police
estimated there were 25,000 to 100,000 demonstrators, including some who
threw fruit and stones at Nixon's car. The total crowd was about 300,000.
D.C. police are expecting about 750,000 people on Jan. 20 when
President-elect Bush is sworn in, and they said they think many
demonstrators will be content to voice their displeasure peacefully.
Becker's group, like several others hoping to flood parts of the city
on Inauguration Day, had been planning to be in Washington no matter who
won the election. But enough people think the outcome was illegitimate, he
said, that it has cranked up protest passion. Within hours of the Dec. 12
U.S. Supreme Court decision blocking Vice President Gore's effort to
recount votes in Florida, Becker and other organizers said, their Web
sites were deluged with inquiries.
"There's a tremendous amount of spontaneous organizing going
on," said Becker, 48.
A rainbow of left-leaning groups had planned to rally on the Mall to
vent outrage at a variety of demons, including racism, the death penalty
and the corporate influence on politics. But complaints that some Florida
votes were not counted, including those of many African Americans, have
given demonstrators powerful common issues.
Unlike the street protests against the World Bank in April, no civil
disobedience has been planned, organizers say. They said the
demonstrations will feature signs, chants, giant puppets, skits and a
squad of radical stilt walkers being trained in Philadelphia.
"We are not planning to shut down the inauguration," Becker
said. "We are planning to make it plain that the inaugural route is
not the private property of those who support the death penalty, so we're
going to be well-represented on that parade route."
D.C. police aren't taking any chances with protesters' intentions,
according to Executive Assistant Chief Terrance W. Gainer. He said he
expects fewer than 5,000 unruly demonstrators might try to disrupt the
inauguration, along with thousands of peaceful demonstrators.
In addition to the D.C. force, thousands of suburban and federal
officers will participate in what officials described as an unprecedented
level of security.
The Justice Action Movement, an alliance of Washington area protesters,
yesterday sent D.C. Police Chief Charles H. Ramsey a letter requesting a
meeting to discuss plans for peaceful protests. Cmdr. Michael Radzilowski,
who is in charge of special operations, said yesterday that he would be
happy to meet with the protesters.
Half a dozen groups have requested permits, but none have been granted.
A National Parks Service spokesman said the agency is waiting for
inauguration planners to make final arrangements before it allots space to
protesters.
The National Organization for Women plans to be there. "It's
important for our own spirit to let people know there is a place to plug
in, take that anger and use it to fuel some additional activism," NOW
President Patricia Ireland said.
The Rev. Al Sharpton and the Rev. Walter Fauntroy plan a "shadow
inauguration" outside the U.S. Supreme Court to swear in those
pledging to uphold the Voting Rights Act.
"We feel the act was violated by George Bush," Sharpton said.
Fauntroy, pastor of New Bethel Baptist Church in Shaw, said he has
witnessed every swearing-in since President Franklin D. Roosevelt's fourth
in 1945, and "I know of no inauguration that has been the source of
greater controversy than this . . . following a shameful election."
Other activists are planning a Voters March to call for election reform
and the abolishment of the electoral college. "Our nation has been
traumatized by what has happened in this election," said Louis
Posner, a New York attorney leading the effort.
Another group, the D.C.-based New Black Panther Party, and its allies
plan to stage a Day of Outrage march, said spokesman Malik Shabazz.
Other local protest efforts are being coordinated by the Justice Action
Movement, a coalition of many who protested the World Bank. They have been
holding public meetings for several weeks at George Washington University.
They scheduled a news conference today to bring together organizers of
various protest efforts.
On Monday, several dozen people attended a Justice Action Movement
meeting. Most were students or young members of progressive organizations
and unions, but several were old enough to have protested Nixon's
inauguration. Justice Action Movement has dubbed Jan. 20 the "InaugurAuction,"
a reference to members' belief that the major parties buy the White House
with corporate funds.
"Because of a corrupt political system, we now have a president
who is going to be threatening the lives of many innocent people because
of his support for the death penalty, military policies abroad and free
trade," said Adam Eidinger, 27, a movement organizer.
At the meeting, the group voted not to use violence, vandalism,
weapons, alcohol or drugs. They also decided to remain in small groups
scattered all over the Mall, employing creative visual effects and stilt
walkers to make their points.
After the meeting, several organizers said they suspected a police
infiltrator was in their midst. A man with a goatee looked just like a
plainclothes officer who figured prominently in confrontations with World
Bank demonstrators, according to organizers who said they have videotapes.
Before ending a brief telephone interview with The Washington Post, the
man denied he was an undercover officer. A police spokesman said there is
no one on the force with the name the man used at the meeting. Gainer
confirmed that the police have infiltrated the protesters, but he didn't
identify anyone."They're looking for excuses to shut us down,"
Eidinger said.
This week, a few members of Justice Action Movement held a practice
InaugurAuction in front of the White House, offering to auction the
building for $10 to carpenters building bleachers for the parade.
"I don't feel this particular election demonstrates ideally what
the presidency is for this country," said Elizabeth Croyden, 30, an
actress and film producer who participated. "It exposes a lot of
flaws in the system, and I'm upset about it. If you don't get involved,
how can you make a difference?"
High Court in Awkward Spot Over Equal
Protection Ruling
Los
Angeles Times 12/16/2000
By DAVID G. SAVAGE, HENRY WEINSTEIN, Times Staff
Writers
WASHINGTON--Over
the last 15 years, the Supreme Court under Chief Justice William H.
Rehnquist has made it nearly impossible to win constitutional claims of
unequal treatment.
To succeed, the court
has ruled, claimants must prove that government officials were biased and
engaged in blatant discrimination. This high threshold is rarely crossed.
That is why many legal experts were
taken aback this week when the high court relied on the equal protection
clause to stop the manual recount of presidential ballots in Florida.
No one had alleged that the judges who
would supervise the recounts were motivated by discriminatory bias.
Nonetheless, the claim proved to be a
winner for lawyers representing Texas Gov. George W. Bush.
"We find a violation of the equal
protection clause," the conservative majority said in Bush vs. Gore,
because the recount process lacked the "procedural safeguards" to assure
that counties would not treat unread ballots differently.
Until this week the court had
consistently turned away equal protection claims, even when confronted
with strong allegations of racial bias.
When defense lawyers challenged
Georgia's death-penalty system as racially biased, they cited studies
showing that murders involving whites were 11 times more likely to result
in a death sentence than murders of blacks.
But on a 5-4 vote, the court in 1987
rejected that claim, ruling that the statistics did not prove that the
Georgia officials were biased.
Rehnquist Rejects Drug Case
Study
Four years ago, public
defenders in Los Angeles alleged a pattern of bias in federal drug
prosecutions. They said that during one year every person charged with a
federal crack cocaine offense was black. A federal judge then ordered a
study of drug cases in the U.S. attorney's office and cleared the way for
the defense lawyers to question prosecutors.
But Rehnquist, speaking for the high
court, overturned that order and quashed the study based on what he called
"ordinary equal protection standards. . . . The claimant must demonstrate
that the federal prosecutorial policy had a discriminatory effect and was
motivated by a discriminatory purpose."
Since the public defenders had no proof
in advance that U.S. attorneys in Los Angeles were biased, they were not
entitled to the study, he said.
The gap
between the court's usual approach and this week's ruling has caused both
debate and some despair among legal scholars.
University of Chicago law professor Cass
Sunstein, who considers himself an admirer of the Rehnquist court, said
that his faith in the justices has been shaken.
"The good thing you can say about this
case is that it settled things in the least messy way. But as a matter of
law it is a real embarrassment. It's the worst moment for the court, at
least since Roe," Sunstein said, referring to the 1973 ruling in Roe vs.
Wade that upheld the right to abortion.
"The equal protection holding is a bolt
out of the blue. There is no precedent for it and there's no support in
history for this type of ruling," Sunstein said. "And for it to come now
in a 5-4 decision, it's just very hard to explain."
University of Virginia law professor A.
E. Dick Howard also said that he finds the ruling difficult to explain on
legal grounds.
"This is a remarkable use
of the equal protection clause. It is not consistent with anything they
have done in the past 25 years," Howard said. "No one even claimed there
was intentional discrimination here."
Clause Dates Back to the Civil
War
The guarantee of equal
protection of the laws was added to the Constitution after the Civil War
to protect black Americans from discrimination in the South.
During the late 19th century, the
Supreme Court nearly erased this clause from the Constitution with the
"separate but equal" doctrine that permitted rigidly racist practices.
The court revived the equal protection
guarantee in 1954 with the Brown vs. Board of Education ruling that struck
down official segregation.
The closest
precedents for Tuesday's ruling came in reapportionment cases of the early
1960s. Then, the court confronted a situation in which rural counties had
far more power in many state legislatures than their populations would
justify. For example, a rural county with 50,000 residents might have the
same one vote in the state Senate as a city of 500,000.
Citing the right to vote and the equal
protection clause, the court of Chief Justice Earl Warren said that voters
were entitled to roughly equal representation. One such ruling, Reynolds
vs. Sims in 1964, was cited in Tuesday's opinion.
UC Berkeley law professor John Yoo
applauded the court's Bush vs. Gore ruling and said that the equal
protection analysis "followed the logic of one person, one vote. This case
took that logic and extended it to what the states do after the vote,"
said Yoo, a former law clerk for Justice Clarence Thomas.
In their dissenting opinions, two of the
liberal justices--David H. Souter and Stephen G. Breyer--said they agreed
that the Florida recount required "uniform standards" for deciding what is
a legal ballot. It would not do to have "dimpled" ballots counted in one
place but not in another, they said.
But
the two justices acknowledged that an even wider disparity results from
different voting systems. The older punch-card tabulators used in South
Florida are far more likely to miss legal votes than the optical scanners
used elsewhere in the state.
These
"voters already arrive at the polls with an unequal chance that their
votes will be counted," Breyer said in his dissent.
Until now, this difference in vote
counting has not been seen as an equal protection violation. And academics
who closely study the court and voting rights said they were uncertain
whether Tuesday's decision says something important about equal protection
or merely this year's election.
The
conservative majority said that its constitutional ruling was "limited to
the present circumstances, for the problem of equal protection in election
processes generally presents many complexities."
J. Clark Kelso, a professor at the
McGeorge Law School in Sacramento, said that the ruling may have little
effect on the law, despite its enormous effect this week.
The equal protection analysis was
"extremely underdeveloped" in the opinion, said Kelso, who clerked for
Justice Anthony M. Kennedy when he was a federal judge. "Scholars are
scratching their heads [because] the court was trying to say as little as
it could to justify the opinion. It probably won't have much effect on the
law other than in a case involving a manual recount of punch-card ballots
in a presidential election."
But because
the unsigned majority opinion speaks of the "fundamental rights of each
voter," some say it might prove significant in the future.
It "certainly opens up a new avenue of
litigation about voting--or at least it potentially does," said Harvard
University law professor Randall Kennedy, who clerked for the late Justice
Thurgood Marshall. "That is very ironic in that the razor-thin-margin
majority is mainly constituted by people who in other areas have shown a
quite remarkable indifference to equal protection claims."
In the past, claims of unequal treatment
have been routinely rejected by the Rehnquist court.
For example, the justices have refused
to hear constitutional challenges to federal drug laws, even though the
punishment for those caught with crack cocaine is 100 times greater than
for those caught with the same amount of powder cocaine.
In 1992, a new homeowner in Los Angeles
brought an equal protection challenge to California's system of unequal
property taxes.
Thanks to Proposition
13, which froze property values for existing homeowners, new buyers often
found themselves paying taxes five or 10 times higher than their
neighbors, even when their homes were identical. But the high court
rejected the claim and said that states "have a large leeway" in setting
tax rules.
Gay Bias Upheld in Boy
Scout Case
The Rehnquist court also
has turned away equal protection claims from gays and lesbians who have
been discharged from the military because of their sexual orientation.
Earlier this year, the court intervened
when state judges in New Jersey ruled that the Boy Scouts had violated
state antidiscrimination law by kicking out a Scout leader who said he was
gay. The court, on a 5-4 vote, said that the Scouts have a 1st Amendment
right to exclude gays. The majority was the same as in Tuesday's ruling in
Bush vs. Gore, with Rehnquist joined by Justices Sandra Day O'Connor,
Antonin Scalia, Kennedy and Thomas.
Before this year, Scalia has insisted
that the court not use the equal protection clause to second-guess the
states.
In 1996, the court struck down a
Colorado anti-gay rights law on a 6-3 vote. In a thunderous dissent,
Scalia accused his colleagues of an "act not of judicial judgment but of
political will." The Constitution's equal protection clause does not
warrant "the holding that homosexuality cannot be singled out for
disfavorable treatment," Scalia said in a dissent joined by Rehnquist and
Thomas.
There is one major exception to
the trend of not invoking the equal protection clause. In a series of
cases brought by whites challenging affirmative action, the Rehnquist
court has intervened to strike down state laws that benefit minorities.
When North Carolina lawmakers redrew
their congressional districts in the early 1990s, they created two of 12
with black majorities. They noted that while nearly 1 in 4 North
Carolinians is black, the state had not sent an African American to
Congress in the 20th century.
But on a
5-4 vote, the court struck down these districts as "racial gerrymandering"
that violated the equal protection clause of the Constitution.
The court also struck down federal
contracting laws that set aside some work for minority-owned firms. The
majority consisted of Rehnquist, O'Connor, Scalia, Kennedy and Thomas.
Law professor Richard Lazarus, who runs
Georgetown University's Supreme Court Institute, called Tuesday's Bush vs.
Gore ruling "unsettling." The majority's legal position "seemed
antithetical to most of their jurisprudence in the equal protection area,"
he said.
Added USC law professor Erwin
Chemerinsky: "The Rehnquist court almost never uses equal protection
jurisprudence except in striking down affirmative action programs. I can't
think of a single instance where Scalia or Thomas has found discrimination
against a racial minority or women or the aged or the disabled to be
unconstitutional."
DECISION 2000 Supreme Court Ruling: Right or Wrong?
David G. Savage ; Henry Weinstein
12/21/2000
Los Angeles Times
Home Edition
Page A-25
Copyright 2000 / The Times Mirror Company
In the week since the Supreme Court handed down its decision on the
presidential race, the ruling has attracted harsh criticism from many legal
scholars and passionate defenses from others.
Critics say the five justices in the majority decided what result they wanted
to reach--an end to ballot recounts--and then cobbled together a weak rationale
to get there.
The critics also say the court departed from its usual conservative
principles by resolving the type of "political question" that the
justices have shunned in other cases and by holding that Florida's inconsistent
standards for judging ballots violated the Constitution's guarantee of
"equal protection of the laws."
Defenders of the ruling say the court did the nation a service by resolving a
seemingly intractable dispute. The justices had no choice but to overturn a
Florida Supreme Court decision that was allowing ballot recounts to go
forward with no guarantees of fairness or accuracy, defenders say.
What follows are excerpts from the majority and dissenting justices' opinions
stating the opposing sides of the case along with explanatory material by The
Times and commentaries by leading scholars
*
Question 5
Did recounting the ballots under the standard used by the Florida Supreme Court
violate the U.S. Constitution's guarantee of "equal protection of the
laws"?
JUSTICES' OPINIONS
The ruling: The recount mechanisms implemented in response to the decisions
of the Florida Supreme Court do not satisfy the minimum requirement for
non-arbitrary treatment of voters necessary to secure the fundamental right.
Florida's basic command for the count of legally cast votes is to consider the
"intent of the voter." This is unobjectionable as an abstract
proposition and a starting principle. The problem inheres in the absence of
specific standards.
*
Dissent [Breyer]: [T]he ballots of voters in counties that use punch-card
systems are more likely to be disqualified than those in counties using
optical-scanning systems. ... Thus, in a system that allows counties to use
different types of voting systems, voters already arrive at the polls with an
unequal chance that their votes will be counted. I do not see how the fact that
this results from counties' selection of different voting machines rather than a
court order makes the outcome any more fair. Nor do I understand why the Florida
Supreme Court's recount order, which helps to redress this inequity, must
be entirely prohibited based on a deficiency that could easily be remedied.
*
WHAT'S AT ISSUE
The fact that this turned out to be the key question in the case was a
surprise in itself. In constitutional law, "equal protection of the
laws" has a special meaning. Because all laws make distinctions, people can
always claim they were subjected to different treatment. Motor vehicle laws, for
example, say a person who is 16 years old can obtain a driver's license, but a
15-year-old cannot. The two people are not treated equally, but that does not
violate the Constitution because the government has a rational basis for
treating them differently.
The high court has used the equal protection clause to strike down
laws that discriminate based on race, gender or national origin. In the 1960s,
the court also used the equal protection clause to reject laws that
infringed on the right to vote, such as the poll tax that discriminated against
poor people. But the court in recent years has almost always ruled against equal
protection claims unless a person can prove that he or she was discriminated
against intentionally.
In this case, counties in Florida were using different rules to determine
whether indentations on a ballot reflected an actual intent to vote. While no
one alleged intentional discrimination, the result of the process was that
people's ballots would count differently depending on where they lived. The
issue was whether that unintentional variation violated the equal protection
guarantee.
*
Expert analysis
Yes
Bradford Berenson, is an attorney at Sidley & Austin in Washington, D.C.
"It seems to me there is an equal protection problem of a fairly serious
kind if you are applying different standards to votes in different parts of the
state. ... It can't possibly be that the 'clear intent' of the voters means one
thing in Palm Beach and something else in Broward County. Seven justices agreed
on that basic proposition, including a Clinton-Gore appointee, which shows the
majority was not off on some adventurous journey. It's true there was a wide
variety of defects exposed in this election, including the disparities caused by
the voting machines. But there was no way to unscramble that egg, except by
throwing out the entire election. I think the justices concluded there was no
fair and constitutional way to conduct a statewide recount at this late date.
So, if you can't fix the problem and make it perfect, they decided that
ultimately the fairest way was to take the guy who received the most votes in
the machine count."
*
No
David D. Cole is a professor at Georgetown University Law Center.
"Every state of the union uses different procedures in elections and
counts vote with different machines. Sometimes it differs by county and by
precinct. In the end, this means ballots are treated differently, and they
always have been. Of course, there is no intent to treat people differently, but
it is the necessary result of a messy voting process. Until now, no court, let
alone the Supreme Court, had held these differences raised any
constitutional concern, much less violated the equal protection clause .
This was entirely unprecedented. The Legislature here used a system with
different machines to get a statewide result, and no one thought that raised an
equal protection problem. Yet, when a state court steps in to try to make sure
all the votes are counted, they said it does make for an equal protection
violation. It seems to me that shows this was a legal standard that was made up
to decide this case, and this case only."
Analysis: High Court Fractures, And Exposes the
Seams
By Charles Lane
Washington Post Staff Writer
Sunday, December 10, 2000; Page A01
Abandoning all pretense of unanimity, the U.S. Supreme Court's liberal
and conservative members openly attacked each other yesterday over whether
to stop the manual recounting of ballots in Florida.
The court's four center-left justices, spearheaded by 80-year-old
Justice John Paul Stevens, publicly dissented from the five-member
center-right majority's decision to grant Texas Gov. George W. Bush's
request to halt the recounts and to hear his case against them. Justice
Antonin Scalia, the court's most dynamic conservative, fired back with an
opinion defending the majority's decision.
It is barely precedented for justices to express themselves at such a
preliminary phase of a case; the writings yesterday not only broke that
unwritten rule of the court but also left no doubt that members of the
court disagree passionately about the merits of the underlying issues in
the election dispute, now officially docketed at the high court as Bush v.
Gore.
Ironically, each side asserted that it was acting to save the country
from the disaster that would befall it if a questionable electoral process
were to go forward, producing a president whose legitimacy would be widely
doubted.
n legal terms, perhaps the most important immediate issue before the
court was whether, as lawyers for Bush claimed, he would suffer
"irreparable harm" if the counting continued, or whether, as Vice
President Gore's lawyers argued, Gore would be equally injured if it were
halted as the court considered the underlying legal questions.
"The counting of votes that are of questionable legality does in my
view threaten irreparable harm to [Bush], and to the country, by casting a
cloud upon what he claims to be the legitimacy of his election," Scalia
wrote. "Count first, and rule upon legality afterwards, is not a recipe
for producing election results that have the public acceptance democratic
stability requires."
Yet Stevens, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg,
and David H. Souter, argued that it was the majority that had acted
"unwisely," and "cast a cloud on the legitimacy of the election."
Since blocking the recounts so close to the Dec. 12 deadline for
completing them makes it all but impossible for Gore to take advantage of
the Florida Supreme Court's order issued Friday, the dissenters argued,
the majority's action was "tantamount" to a decision for Bush on the case
itself.
Then the dissenters telegraphed what their own conclusion would be: "As
a more fundamental matter," Stevens wrote, "the Florida court's ruling
reflects the basic principle, inherent in our Constitution and our
democracy, that every legal vote should be counted."
Scalia, responding to the dissent, all but predicted the outcome. "It
suffices to say that the issuance of the stay suggests that a majority of
the court . . . believe that [Bush] has a substantial probability of
success."
The court's Dec. 4 opinion in a previous chapter of the controversy
came after evident disagreements between liberal and conservative justices
at the oral argument three days earlier. But the justices managed to paper
over those differences by essentially sending the case back to the Florida
Supreme Court for a clarification of the compatibility of the state
court's opinion with the Constitution and federal law.
This time, the differences emerged even before the oral argument, with
the dissenters accusing the majority of departing from "venerable rules of
judicial restraint."
The court called for briefs to be filed by 4 p.m. today and set oral
argument, again stretched to 90 minutes instead of the usual hour, for 11
a.m. Monday.
The argument is likely to center on the same question that was debated
before the court on Dec. 1: whether the Florida Supreme Court has, in
effect, invented new post-Election Day rules for conducting the
presidential election in the state, contrary to the 1887 Electoral Count
Act and to Article II, Section 1 of the Constitution, which grants power
over the selection of presidential electors to the state Legislatures.
Additionally, the Bush application for a stay claimed that the manual
recounts would violate the Constitution, because they would result in the
votes of residents of different counties being treated differently, and
because they would proceed without consistent standards, which the Bush
lawyers called a violation of voters' rights to due process of law.
In their filings with the high court, Bush lawyers once again depicted
the Florida Supreme Court as a rogue institution bent on rewriting
election rules that had been carefully devised by the Legislature.
For example, they noted that, by ordering that the results of a partial
manual recount in Miami-Dade County be included in the certified returns,
the Florida court had "essentially overruled" a part of Florida's election
law requiring county canvassing boards to "manually recount all
ballots."
One of the Bush team's key contentions is that Florida's election
contest law may not apply to presidential elections, and that, even if it
did, the Legislature never expressly granted the Florida court the right
to review the decision of a lower court in such a contest, as it did in
overturning Judge N. Sanders Sauls's Dec. 4 ruling against Gore.
Thus, the Bush team contends, the Florida court could only have derived
its authority to do so in this case from the state constitution's general
provisions giving the court the power to hear cases on appeal. The Bush
team argues that the U.S. Supreme Court had suggested in its earlier
opinion that this would not be permissible.
"The Florida Legislature never provided for such judicial meddling in
its legislative structure," the Bush attorneys argued, adding: "It is no
answer to characterize the Florida Supreme Court's decision as an ordinary
exercise of judicial review."
In a filing to the justices opposing Bush's application for a stay,
Gore's attorneys previewed the arguments that they will urge on the court
in briefs today.
They contended that the Florida Supreme Court's latest decision took
full account of the concerns expressed in the U.S. Supreme Court's opinion
about both the 1887 law and the Constitution, and therefore did nothing
more than interpret Florida's election contest statute consistent with the
intention of the Legislature.
"The court based its interpretation on conventional tools of statutory
construction, including relevant precedents," the Gore team argued; "in
other words, it engaged in routine statutory interpretation."
There is no "federal question" for the U.S. Supreme Court to consider,
the Gore attorneys maintain, because the Florida court did not see "the
Florida constitution as circumscribing the Legislature's authority under
the federal Constitution. Indeed, the Florida Supreme Court clearly
recognized the limitations imposed by Article II--it expressly
acknowledged them at the outset of its opinion."
Responding to Bush's argument that the Legislature never intended for
the Florida Supreme Court to have appellate review over election contest
cases, the Gore team argues that when the Legislature passed the relevant
law last year, it knew that previous contests had been appealed to the
state Supreme Court, so it must have intended that this one would be.
Whatever the merits of these arguments, legal analysts said that it is
unclear how the court could decide the case for Gore without seeming to
violate some of the very principles that the majority has said it was
attempting to protect by granting the stay.
For example, if the court did affirm the Florida court's order
requiring manual recounts across Florida and lifted the stay it imposed
against them, it could do so only on or about Dec. 12, the deadline set by
federal law after which Florida's electors would lose their presumptive
legitimacy in the eyes of Congress, which will count the electoral votes
in January.
Thus, the justices would presumably have to accompany such a holding
with an additional rule loosening that deadline.
"They're boxed in. They theoretically could say because we had to stay
this, we're going to order the recount to continue," Stanford Law School
professor Pamela Karlan said. "But the justices in the majority on this
stay suggested that the real vice is the Florida Supreme Court making new
law for the situation. Boy, would it be new law to say the deadline
doesn't apply."
Constitutional scholars expressed astonishment at the forcefulness with
which the court's majority intervened in the case, and at the unmistakably
angry way in which the minority objected.
"I'm surprised," said Karlan, a former law clerk to the late Justice
Harry Blackmun. "You seldom see something like this because it exposes the
raw workings of the court."
History suggests that, if the court is to play an effective role as
national arbiter of politically charged legal disputes, it is better to do
so through unanimous decision-making.
That was the rule the court adhered to in both its landmark 1954
decision ordering public school desegregation, and in its 1974 decision
ordering President Richard M. Nixon to surrender his secret Watergate tape
recordings to a special prosecutor. In each case, the court was bitterly
attacked by those who disagreed with its ruling, but unanimity helped
insulate the justices from the criticism.
"They've come down off Mount Olympus," said professor Akhil Amar of
Yale Law School.
"There's really a war there," said a Washington attorney who recently
clerked for one of the current justices.
© 2000 The Washington Post Company
Machines
didn't pass polling test
But all were
in use on Election Day
BY ANDREA ROBINSON
Miami Herald
December 22, 2000
Thirteen of 20 voting machines in the two Miami-Dade County precincts with
the highest rates of discarded ballots did not show votes for at least some
candidates during a test-vote minutes before the polls opened Nov. 7, a review
of those tests by The Herald shows.
Whether those results were caused by improper testing or because the machines
themselves were not recording votes properly is not clear.
Elections department supervisors say they believe precinct workers
conducted the tests improperly. The precinct workers, whose initials appear on
the test ballots, deny that.
In any case, the machines at Dunbar Elementary in Overtown and Lillie C.
Evans Elementary in Liberty City were not taken out of service as they should
have been.
``I don't know why that would have happened. We always make sure the holes
go through,'' said Sherrill Blue, who initialed three test ballots at Evans
Elementary. Two of those were perfect, but the third one lacked all 10 punches
in the presidential race.
The testers probably didn't press hard enough or didn't hear the numbers
when they were called out, said Gisela Salas, assistant elections director.
``They didn't do the test properly,'' she said.
John Clouser, another assistant director, said that test is only a backup,
similar to one conducted at a county warehouse in the week before an election.
``We punch through every single position just to make sure everything is
OK. If it's OK we send [the Votomatic] out,'' Clouser said, adding that all
machines sent to the precincts passed tests beforehand.
``On election morning, to make sure we didn't send one to the wrong
precinct, the clerk runs a check. If a mistake were to occur, they could catch
it before a poll opened,'' he said.
The two precincts -- Dunbar and Evans elementaries -- had the highest rate
of discarded presidential ballots in the county. Ballots were rejected when
counting machines failed to read punched holes, or when a voter marked too
many candidates.
The Evans precinct had a discard rate of 13 percent of presidential
ballots, or 113 of 868 ballots cast; Dunbar's was 12.8 percent, 105 of the 820
ballots cast.
The results were more than double the rate of discards in the 1996
presidential election. That year at the Evans precinct, 819 presidential
ballots were cast and 54 were not counted, a discard percentage of 6.2
percent. At Dunbar, 754 presidential votes were registered. Of those 46 were
not counted, or 5.8 percent of the total.
A Herald review showed missed punches on six of the 10 machines at Dunbar
and on seven of the 10 machines at Evans.
In a check of the 10 presidential candidates on the ballots, two test
ballots -- one in each precinct -- lacked punches for any of them. A third
ballot at Evans failed to register a mark for the number assigned to Vice
President Al Gore.
Two of the Evans test ballots also failed to register punches for Dorothy
Bendross Mindingall, the Evans principal who was elected to the state House of
Representatives last month.
By comparison, test results were flawless in the precinct with the county's
lowest percentage of discarded ballots -- St. John Neumann Catholic Church in
Kendall. The Kendall precinct had a perfect record -- no discarded ballots or
mispunched test ballots.
Larry Williams, an Evans worker whose initials appear on five test ballots,
said the machines were tested 15 minutes before opening. One poll worker read
the all the names or items on the ballot, and a second worker punched the
number corresponding to each name or item.
After each test, the person who punched the card is supposed to make sure
each hole was completely punched and that each punch aligned with the number
of each ballot item.
When that check is completed, the worker writes on the card his or her
initials and the serial number of the Votomatic. Clouser said if workers
detect a problem, they should take the machine off line and request a
replacement. But he added that he hadn't seen the test ballots from those
precincts and couldn't comment on them specifically.
``If there are any problems [with test results] they're supposed to report
it to the clerk,'' he said. ``At that point the clerk should immediately close
the lid and set that Votomatic aside so nobody could get at it to accidentally
vote at it.''
On Nov. 7, the two precincts each had an eight-person crew consisting of a
clerk, an assistant clerk, sheriff and five inspectors. According to elections
records, most of the workers at both precincts had several years of
experience, and both clerks have worked for more than 20 years. Neither of the
clerks could be reached for comment.
Williams and Blue, both workers at Evans precinct 255, were surprised when
they learned that punches were missed on their cards.
Williams, who has staffed precincts for five years, said he tested five
machines about 15 minutes before the polls opened. ``We take [the ballot] out,
check it and initialize. We make sure it's all right and we turn it into the
clerk,'' he said.
When told that a ballot he initialed was missing punches -- including one
for Al Gore -- he said he had some difficulty in punching one of the machines,
but managed to work the stylus through the slot.
``I had to work it a little but it went through,'' he said.
A 70-year-old worker at the Dunbar precinct who said she had worked one
other election initialed a ballot that had no punched holes in the first four
columns. The woman, who did not want to be identified, said it was her first
time testing the machines but she didn't recall any mishaps.
``When you punched [the hole] you could see whether it went through if you
were paying attention,'' she said.
Unregistered
voters cast ballots in Dade
Dead man's
vote, scores of others were allowed illegally, Herald finds
BY MANNY GARCIA AND TOM DUBOCQ
Miami Herald
December 24, 2000
André Alismé died of cancer in 1997. Yet a vote in his name was cast in
last month's presidential election, one of more than 100 illegal ballots
uncovered by The Herald in Miami-Dade County.
Violating rules meant to safeguard the integrity of balloting, Miami-Dade poll
workers allowed scores of unregistered voters -- including out-of-state
residents -- to vote on Nov. 7.
They cast ballots at polling places where they were not listed on voter
rolls. All they had to do was sign sworn statements that they were eligible to
vote.
They were not.
Nobody at the polls checked, as required by county regulations and state
law -- which meant that those illegal ballots counted in one of the closest
presidential races in history.
All of those voters would have been caught before casting ballots had poll
workers followed a simple procedure -- making a phone call to elections
headquarters to check whether each voter was indeed eligible to vote.
The Herald examined ballots cast at just 138 of Miami-Dade's 617 precincts,
finding that 144 ineligible voters had been allowed to sign in at polls where
they were not registered. If that trend holds true in the rest of Dade,
hundreds more illegal ballots may have been cast.
Poll workers overwhelmed by heavy voter turnout struggled with two
competing mandates: sustaining citizens' right to vote while combating fraud
at the ballot box. As a result, the anti-fraud rules weren't always followed:
- Frustrated poll workers said they were stymied by constant busy signals
when they tried to call an Elections Department hot line to verify voter
registration.
- Some were so poorly trained that they didn't know the verification
requirements. They said they let people vote -- some without any
identification -- based on gut feelings that voters were honest.
- Other poll workers, feeling pressured by long lines and short
tempers, said they ignored the rules or bent them just to avoid ugly
confrontations.
Some poll workers were too trusting, said Miami-Dade Elections Supervisor
David Leahy. ``Some clerks obviously did not follow procedures,'' Leahy said.
``A lot of what we do is on the honor system. Clearly you cannot have a
deceased person voting.''
The Herald investigation shows that the already controversial Florida
presidential election also was marred by illegal voting. Those votes also
point to a larger problem: The safeguards enacted after Miami's fraud-tainted
1997 mayoral election didn't keep cheaters from voting.
Much of the fraud unearthed in 1997 involved absentee balloting, and most
reforms were aimed at stamping out fraudulent mail-in ballots. The trouble
this year came at the polls, where some precinct workers ignored systematic
safeguards.
The vote cast for André Alismé exemplifies what went wrong.
A Haitian immigrant, Alismé registered to vote in Miami-Dade on Sept. 10,
1996. The registered Democrat cast his first and only ballot as an American
citizen in the presidential election that year.
He was 60 years old when he died the following May. After spotting his
obituary in the newspaper, the Elections Department routinely verified his
death with the Florida Department of Vital Statistics. Then his registration
was canceled, on June 2, 1997.
On Nov. 7, Alismé's name was resurrected at the Korean Presbyterian Church
of Miami, 13700 NE 10th Ave., the polling place for Precinct 141. Alismé's
name was handwritten on Page 65 of the precinct roll, along with an obvious
forgery of his signature. The roll shows that Ballot No. 119451 was cast in
Alismé's name.
``No, no, that cannot be! André Alismé is deceased,'' said Elda Suffret,
who lives with Alismé's son at the family's El Portal home. ``There is no
other André Alismé in Miami. His sons have different names, and they are not
U.S. citizens. I don't know how this could happen.''
THE CASE OF AN IMPOSTOR
Dead man's identity is used to cast an illegal vote
Precinct 141 was particularly busy on Election Day -- 855 ballots were cast
there, a 67 percent turnout. Nearly 90 percent of the presidential vote went
for Al Gore.
Despite the heavy turnout, precinct supervisor Thomas Dennard said he
clearly remembers the man who called himself Alismé.
``It was early in the morning, and it was a madhouse,'' Dennard said. ``He
was sitting at the end of a long table waiting to be helped.''
Like 46 other voters at Precinct 141, the impostor needed Dennard's
approval to cast a ballot because Alismé's name was not printed on the
precinct's voter rolls.
The procedure is clear. Poll workers are supposed to get identification
from the walk-in voter -- preferably a current voter registration card and
photo identification.
If the voter doesn't have that, poll workers are supposed to write down the
voter's name, current address, birth date and Social Security number, then
verify the information against voter registration records before having the
voter sign an affirmation swearing that the information is correct.
Dennard said he followed official procedures, calling an Elections
Department hot line to verify that Alismé was registered to vote. Elections
Department officials doubt that he made the call.
They said that if Dennard did call, alarms would have gone off:
- The impostor gave Alismé's old address, 8800 NE Fourth Ave. -- which is
in Precinct 159, about three miles south in El Portal. Under county
regulations, Dennard should have directed the man to the correct precinct
and not issued him a ballot.
- The impostor told poll workers he was born June 27, 1922,
elections records show -- making him 14 years older than Alismé would
have been. Alismé's correct birth date, on file at the Elections
Department: Nov. 30, 1936.
- Dennard said the voter presented him with photo identification --
either a passport or a driver's license -- as well as a voter registration
card identifying him as Alismé. He said the voter was white and spoke
with a thick Hispanic accent. ``He was, like, from Cuba,'' Dennard said.
Voter registration records list Alismé as black. He was born in
Port-au-Prince, Haiti.
When Alismé's records are called up on any Elections Department computer,
a message flashes on the screen, an alert that he is deceased.
No record could be found that Dennard called the hot line on Nov. 7 to
check out Alismé or any other voter. Hot line operators were supposed to log
in all calls from precincts. Dennard stood by his story. ``I did make the
calls,'' he said.
Dennard has worked at Miami-Dade polls since 1982, but that was only the
second time he had been in charge of a precinct. An unemployed food-service
worker, Dennard earned $99 for the 14 hours he spent at Precinct 141 on Nov.
7.
Alismé was not the only questionable voter in Precinct 141.
``I am not a registered voter, but I voted,'' Michel Guerda, 20, told The
Herald.
Guerda said she voted in Precint 141 after two girlfriends persuaded her to
ride with them to the polls and try to vote.
``I told the man there, the supervisor, `I'm not a registered voter.' He
said, `That's OK. You can vote,' '' Guerda said. ``He asked me for a
photo ID. I showed him a photo ID. I filled out some paper and I signed the
book. He gave me a ballot and I voted. It was easy. Am I in trouble?''
Dennard said he does not remember Guerda, who lives within Little Haiti's
Precinct 505, six miles from Precinct 141.
Aldo Rios also voted -- although his family says he lives in New Jersey.
Rios filled out an affirmation listing his granddaughter's North Dade address.
Dennard signed it, although elections officials confirm that Rios is not a
registered voter.
``He lives in Union City,'' said Yanelis Cabrales, Rios' granddaughter.
``He comes back and forth, but his home is up there, not here.''
Christina Ashby admitted in her affirmation that she lives in a Broward
County apartment. Dennard said he signed it because Ashby showed him
identification, possibly a driver's license, listing an address within the
precinct.
Ashby, an activities director for a nursing home, said she is registered to
vote in Miramar, but twice got turned away when she tried to vote at another
precinct near her son's school.
``They would not even let me fill out an affirmation,'' she said. ``The
Broward clerks tried calling the elections department but never got through.
It was busy all the time.''
Frustrated, Ashby said she drove to her original precinct where she had
registered to vote in 1992 -- Precinct 141. She explained her ordeal and got
to vote. Ashby said she did not know that was illegal.
``I was tired and frustrated,'' Ashby said. ``All I wanted to do was
vote.''
That happened all over Miami-Dade -- unregistered voters wanting to vote.
Most voters interviewed by The Herald said they were unaware that state law
requires voters to be registered in the county where they currently reside.
Registration cards from other counties and other states are invalid.
A QUESTION OF RESIDENCY
Voters not on the rolls were able to cast ballots
South Dade resident Aurora Ojeda was one of nine unregistered voters in
Precinct 759 who cast ballots at South Kendall Community Church, 16550 SW
147th Ave. Ojeda, who moved here from Monroe County several years ago, said
she remembered filling out a registration form about a year ago, but never
received a registration card.
``I wanted to vote, so I drove to the Keys first thing in the morning. But
they told me I had to vote in my precinct here,'' Ojeda said. ``So I came back
and they let me vote here.''
Claudine Richard said her mother, Claudette Richard, was allowed to vote
even though she was registered outside Florida. Poll workers in Precinct 759
allowed her to vote anyway. Claudette Richard was in Haiti and could not be
reached for comment.
``She was registered to vote in New York,'' her daughter said. ``I tried to
register her online a few weeks before the election, but it was too late. Does
this mean she wasn't supposed to vote?''
The state registration deadline was Oct. 10. Anyone registering after that
was ineligible to vote.
In Precinct 146, Pamela Perez signed affirmations for seven people who gave
her addresses within that precinct. Elections records show that none were
registered voters.
``I'm sure several people got by me who should not have voted. I know I
made some boo-boos. I should have checked more thoroughly,'' said Perez, who
oversaw voting in Keystone Point, a well-to-do neighborhood in North Miami.
``I had a lot of people coming in without voting cards and people who were
not registered in the book,'' she said. ``I tried calling the elections
office, but it was busy the whole day.''
Perez said she was caught unprepared for the onslaught of people who showed
up on Nov. 7. She registered to vote in February and had never done election
work.
Poll clerks must attend a two-hour class and study a 32-page procedural
manual before they set foot inside a precinct. Perez said she warned Elections
Department trainers that she was not prepared for such responsibility.
``The poll worker training lasted 40 minutes, maybe an hour,'' Perez said.
``I told them, `I never voted in my life. I never did this in my life. I
didn't have any experience doing this,' and they said, `You can do it. You'll
be fine. It's easy.' Well, it wasn't easy.''
Leahy, the elections supervisor, said the hardest part of his job is
finding enough qualified poll workers, especially for larger elections.
``We have to beg people to take these positions for what we pay,'' Leahy
said. ``Basically, we are asking you to take a Tuesday off, work at least a
14-hour day, plus two hours of training.''
BENEFIT OF THE DOUBT
Some voters' word accepted about where they were living
Perez said she gave several people the benefit of the doubt because they
said they lived in her neighborhood.
``They said they lived in Keystone Point, and I believed them,'' Perez
said. ``Maybe I should have been more strict in some cases.''
But Perez said she also turned away plenty of people, mostly those she felt
were Haitian, because she believed they did not live in Keystone Point.
``They wanted to come in to vote,'' Perez said. ``I said, `I know you don't
live in this precinct,' and they said `OK' and would leave.''
But how clerks determined who got a ballot differed from one precinct to
the next.
In Opa-locka, for example, clerk Herman Ralph Davis Jr. said he did not
allow anyone to vote without showing a picture ID. Davis said he turned away
several potential voters at Precinct 271, 2105 Ali Baba Ave., because he could
not reach elections headquarters.
``They had to have a picture ID,'' Davis told The Herald. ``If you're not
registered in the book and did not have a picture ID, and I couldn't get
through the phones to the Elections Department, then you couldn't vote. I had
about four I turned away like that, but part of my job is to guard against
fraud.''
Poll clerk Joe Galante said his job was to facilitate voting at Precinct
126, Allen Park Community Center, 1770 NE 162nd St.
``If they didn't have a driver's license or picture ID, voter's
registration, nothing, we filled out that affirmation,'' Galante said. ``I
made them raise their right hand and take an oath that they were telling the
truth. Our job is to help people vote. We're on the honor system here.
``I remember we had one guy,'' Galante said. ``He hadn't voted in years.
But he looked like a nice guy. So we let him vote.''
Herald staff writers Mireidy Fernandez and Jasmine Kripalani contributed
to this report.
INELIGIBLE
VOTES CAST
Miami Herald
December 24, 2000
Miami-Dade election workers allowed at least 144 people to vote on Nov. 7,
although Elections Department records show they are ineligible. Here is a
breakdown:
IF THE VOTE WERE FLAWLESS...
Gore would have had the edge in glitch-free Florida balloting, based on a
Herald analysis
BY ANABELLE de GALE, LILA ARZUA AND CURTIS MORGAN
Miami Herald
December 3, 2000
If no one had ever heard of hanging chads, if the butterfly ballot had never
flown, if no voter had bungled in the booth, who would have won Florida and
the presidency of the United States?
In a race so tight, it may never be known for certain. But a
Herald-commissioned analysis of voting patterns in each of the state's 5,885
precincts suggests that Florida likely would have gone to Al Gore -- by a slim
23,000 votes -- rather than George W. Bush, the officially certified victor by
the wispy margin of 537.
It's a hypothetical result derived from something that clearly doesn't
exist in Florida or anywhere else in the nation -- an election where every
ballot is fully filled out and every one of those ballots gets counted, an
elusive ideal going these days by the buzzword ''the will of the people.''
It is also as close as anyone is likely to get to the statewide manual
recount that some people say is the only way to fairly assess who should be
awarded Florida's 25 Electoral College votes.
Reaction to the analysis, from the two camps locked in an exhausting and
tense legal battle, was radically different. The Gore campaign called it
''compelling evidence,'' and the Bush campaign dismissed it as ''statistical
voodoo.''
One fundamental flaw, Republicans argued, was an assumption that every
voter actually intended to cast a vote in the presidential race. A large
majority of ballots in the disputed counties of Palm Beach and Duval didn't
even have a dimple on them, said Bush spokesman Tucker Eskew.
''If you want to divine voters' intent when there isn't even a mark on the
ballot, you'd do better to hire a palm reader than a statistical analyst,'' he
said.
But Stephen Doig, a professor at Arizona State University who crunched the
numbers for The Herald, defended the analysis.
For example, he said, even if the analysis were adjusted to include the
remote possibility that 90 percent of voters whose ballots were discarded
actually intended to skip the race, the margin still would make a decisive
difference for Gore -- about 1,400 votes.
Doig described it as a matter of analyzing extremes. He started his
analysis with the assumption that every one of the 185,000 discarded ballots
represented an intent to vote in the presidential race. The other extreme, he
said, is the Bush contention that none of them should count.
''That extreme is the reality that we have, that Gov. Bush won by a
razor-thin 500 votes,'' Doig said. ''I'm no psychic. I don't know what they
really intended to do, but I do know that almost anywhere in that margin, Gore
wins. You can argue about where in the range it should be.''
Political analysts were mixed on what the numbers mean.
Larry Sabato, director of the University of Virginia's Center for
Governmental Studies, said he considered the analysis open to questions.
''That is a reasonable assumption for the purposes of analysis,'' he said.
''For the purposes of politics, it's highly questionable. In most precincts,
that may well be true, but in some precincts it may not be, and that's a
critical difference.''
Still, Sabato said he found the end result ''perfectly reasonable.''
''What you're providing evidence for, however speculative, is that more
people showed up on election day for Al Gore,'' he said. ''But I'd also state
that in our system, woulda, shoulda, coulda doesn't matter. Only legal votes
matter.''
And all statistical and anecdotal evidence he'd seen, he said, indicated
that Bush probably collected more of those -- the ones that counted.
Susan MacManus, a political science professor at the University of South
Florida, said there were too many variables in the analysis ''to feel
comfortable.''
''Inferring what the voters' intent was, I have a real problem with people
who can say they can do that,'' she said.
No one, of course, can accurately assess what 185,000 voters intended to do
with their discarded ballots, but in purely statistical terms, there are
consistent trends.
The Herald determined those trends by examining precinct results from each
of the state's 67 counties. Those results showed that statewide, at least
185,000 ballots were discarded, either as undervotes (ballots that for
whatever reason didn't record a vote for president) or overvotes (ballots
where more than one candidate was selected).
Those ballots then were assigned to a candidate in the same proportion as
the candidate had received in each precinct as a whole. Under that analysis,
Bush would have received about 78,000, or 42 percent, of the uncounted votes,
and Gore would have received more than 103,000, or 56 percent. The remaining
4,000 or so would have gone to the minor candidates.
That assumption of voting patterns is based on a concept long accepted by
pollsters -- that the opinions of a small percentage of people can be
extrapolated to project the views of a larger group. In this case, however,
the projection uses a larger group, generally from 90 to 98 percent of the
successful votes in precincts, to project the intent of a few.
The result: Gore ahead by 23,000 votes, a comfortable lead in comparison to
the official statistical tossup, though still narrow enough to trigger the
state's automatic recount, which kicks in when elections finish closer than
one-half of one percent.
The analysis also confirmed that the voters in Democratic precincts had a
far greater chance of having their ballots rejected. Only one of every 40
ballots was rejected in precincts Bush won, while one of every 27 ballots was
rejected in precincts Gore won.
In addition, Doig, a former Herald research editor who now holds the Knight
chair at the Walter Cronkite School of Journalism specializing in
computer-assisted reporting, found a number of other interesting trends:
Voting machinery played a large role in rejections.
Of the 51 precincts in which more than 20 percent of ballots were rejected,
45 of them used punch cards -- 88 percent. Of the 336 precincts in which more
than 10 percent were tossed out, 277 used punch cards -- 78 percent.
The overall rejection rate for the 43 counties using optical systems was
1.4 percent. The overall rejection rate for the 24 punch-card counties was 3.9
percent. That means that voters in punch-card counties, which included urban
Democratic strongholds such as Broward and Palm Beach counties, were nearly
three times as likely to have their ballots rejected as those in optical
counties.
- In dozens of Florida precincts, at least one out of every four
ballots were discarded as having no vote or too many votes for president.
- Nearly half of Gore's margin, more than 11,000 extra votes, would
come from Palm Beach County alone. The other counties that would give him
more than 1,000 new votes are Broward, Miami-Dade, Duval and Pinellas. Of
those, Bush carried only Duval in the official tabulation.
- Palm Beach, home of the infamous butterfly ballot, and Duval,
where candidates' names were spread across two pages, had 31 percent of
the uncounted ballots, but only 12 percent of the total votes cast.
- Only 11 percent of precincts statewide recorded no discarded
ballots.
- Only one county would actually switch preferences for president --
tiny Madison, which officially went to Bush, but would have gone to Gore
under The Herald's projections. More than 10 percent of Madison's
4,000-plus ballots were rejected.
QUESTION OF FAIRNESS
The analysis provides some evidence to bolster the Bush camp's claim that
recounting some counties but not others is unfair to the Texas governor. For
example, the analysis shows that if discarded ballots were to be reconsidered
in Collier County, which Bush won, Bush might pick up about 1,000 net votes.
Bush might also gain about 600 net votes in Lee County and about 500 net votes
in Nassau County.
In all, the analysis shows Bush gaining in 43 counties. But many of those
counties are rural and have relatively low numbers of votes, and the gains
would be quickly eclipsed by the numbers Gore might pick up in the 23 mostly
urban counties where the analysis shows he would show a net gain.
In only one county does the analysis show that neither candidate would gain
on his rival. That is Volusia County, where the ballots already have undergone
a controversial manual recount.
REFLECTION OF VOTE
Doug Hattaway, a spokesman for the vice president's campaign, said the results
bolstered Gore's contention that the official results did not fairly and
accurately reflect the vote.
''The outcome of the presidential election rests on determining the will of
the voters of Florida, and this new evidence makes it extremely hard for the
Bush forces to ignore the people's will,'' he said.
Eskew, the spokesman for the Texas governor, flatly rejected it as
''hocus-pocus'' and ''an utterly unfounded scientific process.''
In addition to mistakenly assuming that voters handing in undervotes
intended to vote, he said, the analysis also ignores the notion that many of
the double-punched ballots may have been ''protest votes,'' intentionally
spoiled.
''That is a deeply flawed model that suggests statistical voodoo,'' he
said.
There are, however, ways of analyzing the data that attempt to account for
the possibility of protest votes and deliberate nonparticipation in the
presidential balloting. Even so, Gore hypothetically still would have
collected enough votes to change the election's outcome.
Historically, about 2 percent of votes in presidential races don't count --
most often because voters skipped the race or their marks weren't recorded by
counting machines. Florida's rejection rate this year, however, was around 3
percent.
The analysis tested even higher percentages of nonvotes, ranging from 10 to
90 percent of the 185,000 discarded ballots. In each instance, Gore still
earned more votes.
The analysis also attempted to discard all undervotes as intentional
nonvotes, counting only overvotes. That analysis was hampered by the fact that
37 counties did not differentiate in their reports between ballots discarded
as undervotes and those discarded as overvotes.
But based on results from the 30 counties that did, 43 percent of the
uncounted votes were undervotes. If that pattern held statewide and every
undervote were tossed out, ignoring the entire chad issue, Gore still would
have a 13,000-vote margin.
Assuming the overvotes are protests and counting just the undervotes leads
to a similar result.
STANDARDS CRUCIAL
That analysis underscores, however, the importance of the debate over the
standards for judging ballots with dimpled chads, swinging door chads and
other variations.
For example, if the undervotes are counted using the experience of
Broward's manual recount, where approximately 20 percent of the undervote
ballots yielded a vote, Gore's net statewide total rises by about 1,500 --
enough to overcome Bush's 537-vote official margin.
But if the standard used is the much stricter one that prevailed in Palm
Beach County, where only 5 percent of the undervote ballots yielded votes,
Gore's statewide net gain would be about 390 votes, not enough to overcome
Bush's lead.
That, however, is the only scenario in which Gore would not overtake Bush.
Overall, the analysis suggests generally that Gore's gains would top Bush's, a
challenge to assertions by the Bush camp that the Texas governor would prevail
in a statewide recount.
Republicans and some analysts didn't think the results were strong enough
to stand up.
ANALYSIS REVIEWED
MacManus, the USF political scientist, echoed Eskew's concerns about protest
and apathetic votes. She also said there were such wide variances in the size
and the social and economic mix of precincts that it would be too difficult to
extrapolate accurate results.
''In polls, you're used to a margin of error,'' she said. ''Here, there's
no room for margins of error.''
Others saw more validity in the analysis.
''You can always raise criticisms. You can never know for sure,'' said Alan
Agresti, a professor of statistics at the University of Florida who reviewed
the methodology. ''But I think when you do it at a very fine level like this,
at the precinct level, it's very interesting, a good projection of what could
have happened.''
Jim Kane, an independent pollster based in Fort Lauderdale, agreed that the
analysis contained many uncertainties. But he also said, ''I'm not shocked
that Gore would have won.''
In fact, Kane, Agresti and Doig agreed that the formula probably was
conservative, awarding Bush too large a share of the pie. The biggest problems
with rejected ballots were in low-income, mostly minority neighborhoods
statewide -- areas that voted heavily Democratic. That could suggest that the
same group, which included a larger percentage of first-time and less educated
voters, might have made similar errors in all precincts.
Stephen Hess, a senior fellow at the Brookings Institution, a Washington,
D.C., think tank, also found the numbers persuasive.
''It's perfectly scientific, if it's presented in a sense as the most
massive statewide poll in Florida,'' he said. ''Sure, it's fun and games, but
it says something about what would have happened if everybody knew how to
vote.''
Statistical
Analysis Would Cheer Gore
By Dan Keating
Washington Post Staff Writer
Tuesday, December 5, 2000; Page A24
As his chances of
claiming the presidency become slimmer, can Vice President Gore go down
believing that in a world of perfect voters, he would have won?
Yes, according to a study done of uncounted ballots in every precinct in
Florida by an Arizona State University professor on behalf of the Miami
Herald.
The study by journalism professor Stephen Doig, a former Pulitzer Prize
winner at the Herald, looked at more than 185,000 ballots that did not
register a presidential choice, either because no vote was detected on the
ballot or because the voter selected two presidential candidates, which voids
any vote in that race. He assumed that those uncounted ballots would have
fallen to Gore and Texas Gov. George W. Bush in the same pattern as the
ballots that were counted in the same precinct.
Doig found, as other studies have noted, that a preponderance of the
uncounted ballots were in Gore strongholds. So, if they had counted as votes,
Gore would have won Florida.
If every single one of the ballots were a vote, Gore would have won by
around 23,000 votes--a victory of less than one-half of one percent. But since
Bush's 537-vote majority is so slim and the miscast ballots were so skewed to
Democratic precincts, not all the ballots would have to count to make Gore the
winner, Doig said.
He said yesterday that critics of his study have attacked the extreme
possibility that every single voter intended to express a choice for
president. But even at the other extreme--that less than 10 percent of the
miscast ballots were intended to be votes--Gore would still have won, he said.
Doig found the uncounted ballots were more likely in counties that use
punch-card machines, and especially in the two punch-card counties that had
the most famously confusing ballots: Palm Beach County's butterfly ballot and
Duval County's list of presidential candidates spread over two successive
pages.
"All I've really done with my study is underscore how flawed and
fragile the voting systems in a lot of Florida counties were," he said.
"They had always been that way, we just never knew it until we had an
election that was this important and this close."
Critics of the study for the Herald said that some voters intentionally
leave their ballots blank and other intentionally vote for more than one
candidate as a form of protest. They also complained that the behavior of
other voters is insufficient to guess the intentions of a blank ballot, and
that pretend scenarios about invalid ballots are meaningless.
Bush spokesman Tucker Eskew was quoted by the Miami Herald calling the
study "statistical voodo," "hocus pocus" and "an
utterly unfounded statistical process."
One aspect of Doig's analysis may buoy Voters News Service, the news
organization cooperative whose Election Day exit polling indicated that Gore
won the state.
"What my data shows is actually what VNS found," Doig said.
"Exit polling was based on people coming out of the precinct saying, 'I
voted for so-and-so.' Those people didn't know their vote really didn't
count."
© 2000 The Washington Post Company
The
Supreme Fix Was In
by Daniel Schorr
Christian Science Monitor
December 15, 2000
In developing countries such as Pakistan, Chile, and Sierra Leone, a
transfer of power is often accomplished by military coup. In our country, it
is done by judicial coup.
Admitting to something short of cool dispassion, I marvel at the way the
gang of five, led by arch-conservative Antonin Scalia, tried to camouflage
their 5-to-4 operation behind a nominal 7-to-2 agreement that there was a
problem with the Florida recount. That seemed to leave open the chance of
fixing the system. Their fix was in, all right, but a different fix. It
suppressed the recount for good.
Any one of these five could have returned the contest to limbo. But none
did. Decades of conservative support of states' rights, by overturning federal
statutes from affirmative action to federal review of criminal cases, went out
the window in an arrogation of authority to judge voting in Florida.
The tactics were adroit. First, the junta on Saturday halted the vote
count. That enabled them to say on Tuesday that there was no more time left
for vote-counting.
One thing about Tony Scalia is that he levels with you. Not every justice
would say, as he did Saturday, that issuing the voting stay suggested Bush had
"a substantial probability of success." Not every justice would own
up to partisanship by saying the recounted votes "threaten irreparable
harm to petitioner" - Governor Bush - "and to the country."
Justice Stevens, for the embattled minority of himself, Stephen Breyer,
Ruth Bader Ginsburg, and David Souter, said on Saturday that halting the vote
recount "will inevitably cast a cloud on the legitimacy of the
election." Tuesday he said we may never know who was the winner of the
presidential race, but "the identity of the loser is perfectly clear. It
is the nation's confidence in the judge as an impartial guardian of the rule
of law."
Justices have not always been so beholden to politicians. President
Eisenhower, after leaving office in 1961, said his greatest mistake had been
appointing to the high court Earl Warren and William Brennan, who sparked a
liberal revolution. Chief Justice Warren Burger, a friend of President Nixon,
joined the unanimous 1974 ruling obliging Nixon to release the Oval Office
tapes that led to his undoing.
Reagan and Bush appointees Anthony Kennedy, Sandra Day O'Connor, and Mr.
Souter, in 1992, cast the swing votes that preserved the constitutional right
of abortion. Their opinion stated that overturning Roe v. Wade would do
"profound and unnecessary damage to the court's legitimacy."
This legitimacy was something the tribunal has enjoyed almost alone among
American institutions of government, unlike the presidency and the Congress.
There was a perception that the black-robed nine march to different drummers,
that they are not beholden to their presidential sponsors or their political
views, that they harken to the law and Constitution, affected by the court's
tradition and collegiality.
That legitimacy has been endangered by the court's intervention into the
white-hot controversy over the presidency that opened the court to suspicion
of partisanship. Before this issue arose there were suggestions of
partisanship. Mr. Bush referred to Scalia and Clarence Thomas as models for
the kind of justices he would name. Chief Justice Rehnquist and Justice
O'Connor reportedly said they would like to retire under Bush to ensure being
succeeded by conservatives. But now, these five have had a banner day. They
have selected a president.