Understanding the 2000 Election
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Understanding the 2000 Election

A Guide to the Legal Battles that Decided the Presidency

Abner Greene

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eBook - ePub

Understanding the 2000 Election

A Guide to the Legal Battles that Decided the Presidency

Abner Greene

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About This Book

Paperback Edition: Updated and with a New Foreword

The nation will not soon forget the drama of the 2000 presidential election. For five weeks we were transfixed by the legal clashes that enveloped the country from election night to the Gore concession. It was instant history, and will be studied by historians, lawyers, political scientists, media critics and others for years to come.

Even for those who followed the events most closely, the legal twists and turns of the post-election struggles seemed at times bewildering. We witnessed manual recounts of election ballots, GOP federal court lawsuits challenging those recounts, two Florida Supreme Court opinions, lawsuits over butterfly and absentee ballots, questions about the role of the Florida legislature and the United States Congress in resolving presidential election disputes, and two United States Supreme Court decisions, the second of which finally handed the election to Bush. Although the 2000 Presidency was decided through much legal wrangling, one should not have to be a lawyer to understand how we came to have Bush rather than Gore as our President in that hotly contested election.

Understanding the 2000 Election offers an accessible, comprehensive guide to the legal battles that finally gave George W. Bush the Presidency five weeks after election night. Meant to stand next to and clarify the numerous journalistic and personal accounts of the election drama, Understanding the 2000 Election offers a offers a step-by-step, non-partisan explanation and analysis of the major legal issues involved in resolving the presidential contest. The volume also offers a clear overview of the Electoral College, its history, what would be involved in switching over to a direct election, and the likely future of the Presidential electoral process. While some still decry the 2000 election outcome as the result of political manipulation rather than the rule of law, Greene shows that almost every legal conclusion of the post-election struggle can be understood through the application of legal principle, rather than politics.

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Part I. Counting by Hand

2. Manual Recounts
In Florida, and Across the Nation

On the morning after election day, it was clear that neither Bush nor Gore had the 270 electoral votes needed to become our forty-third president. Whoever would win Florida’s twenty-five electoral votes would win the election, but that state was still too close to call. The focus of the postelection period in Florida became the battle over manual recounts of punch-card ballots. Bush led Gore after the initial statewide count, and again after a mandatory recount, but the election was not over, because Florida law permits a candidate to ask for manual recounts. Gore pushed for the hand counts, Bush opposed them, and the election ended when the U.S. Supreme Court held unconstitutional the Florida system for counting ballots by hand. Many of us watched on television as officials held punch-card ballots up to the light, scrutinizing the ballots for evidence of a voter’s intent. To some of us it seemed perfectly understandable; to others, just downright odd. This chapter examines the purpose of manual recounts, discusses how officials try to figure out a voter’s intent from looking at a ballot, and looks at some of the statutes and cases from around the country dealing with manual recounts.
First, some terminology. The phrases “hand count” and “manual count” are identical, and the phrases “hand recount” and “manual recount” are identical. If a county tallied ballots by hand on election night, without using a machine, that would be a hand or manual count. If a county used a machine first, and then counted ballots by hand afterward, that would be a hand or manual recount. And even those phrases are somewhat inaccurate. Although human hands are in fact picking up and sorting the ballots during a manual recount, the human eye plays the central role. Finally, here is the Webster’s definition of the term “chad,” a word heard often during the 2000 election: “[a] small piece[] of paper or cardboard produced in punching paper tape or punch cards.”1 In counties that use punch-card ballots, when the voter punches a hole in the ballot, the hole is created by pushing a little rectangular piece of cardboard out of the ballot. That little piece of cardboard is a chad.
Why have manual recounts? The simple answer is that the human eye can evaluate a ballot in a way that the machine eye cannot. The machine eye is a laser of light, looking for either a punched hole or a filled-in circle. In counties using punch-card ballots, the voter should punch a chad out of the punch-card for the candidate the voter prefers. When the cards are fed through the counting machine, the laser eye counts a vote if it sees a hole and doesn’t count a vote if it doesn’t see a hole. In counties using so-called optical scan ballots—the ones that look like SAT test forms—voters fill in little oval circles with a pencil. These ballots are also fed through counting machines, and here the laser eye is looking for a filled-in circle. If it sees one, it counts a vote; if it doesn’t see one, it doesn’t count a vote.
Manual recounts are helpful if, for whatever reason, the counting machines can’t read all the ballots. One immediate response to this is: If a voter properly punches through a ballot card or properly marks an oval on a ballot card, then won’t machines be completely accurate? In theory, yes. But the main purpose of manual recounting is not to ensure that properly punched and properly marked ballots are counted; they usually are. The main purpose of manual recounting is to ensure that improperly punched and improperly marked ballots are counted. States generally do not have laws providing that votes won’t be counted if voters don’t punch or mark ballots exactly right. Florida does not have such a law. Rather, states generally operate under a different principle: that every vote should be counted, if possible. So, although states try to educate voters to make sure their ballots are punched or marked correctly, votes are not automatically discarded if the ballots are improperly punched or marked.
Once one understands that voter error does not disqualify a ballot, the purpose of manual recounting is clear. Take two easy cases. Assume that a voter in a punch-card county punches a chad, but it does not fully detach. Assume it is hanging by one corner, detached at three corners. When that ballot is fed through the machine, the machine laser eye might not read the ballot as a vote. It might read the ballot as registering no vote for the office in question, here, the president. It would, in other words, record that ballot as an “undervote.” A person who took that ballot and looked at it, however, could see that the voter intended to vote for a particular candidate—the candidate whose chad is almost fully detached. Similarly, assume that a voter in an optical-scan county fills in an oval incompletely, and assume, again, that the machine doesn’t read the ballot as containing a vote. Here, too, the human eye could see that the voter intended to vote for the candidate whose oval was partially filled in.
So manual recounts can ensure that more votes are counted. They can ensure that voter error—or perhaps more charitably, incomplete punches or incomplete markings—does not sacrifice votes. Although the Bush team occasionally argued that only machines should count votes, that was never their main contention. Mostly they argued (a) that the Florida system for manual recounting is unconstitutional, and (b) that, while some incompletely punched ballots should be counted, others should not be.
On which ballots should chads count as evidence of a vote? A chad is “hanging” if it hangs onto the ballot by one of its corners and is detached at three corners. Here, the chad has clearly been punched but didn’t detach fully. There was never much dispute about counting these ballots. They are clear evidence of a voter’s intent.
A chad is “swinging” if it hangs onto the ballot by two corners and is detached at the other two corners. Here again, the chad has clearly been punched but didn’t detach fully. There was never much dispute about counting these ballots, either. They, too, are clear evidence of a voter’s intent.
A chad is called a “tri-chad” if it is attached to the ballot at three corners and has been detached at only one corner. Ballots containing these chads were disputed throughout. The Gore team wanted these counted as votes; the Bush team did not. Likewise, the two camps disputed whether to count ballots containing “dimpled” chads, otherwise called “indented” chads. These chads are not detached at all from the ballot. Although fully attached, they bear the impression of the voting tool (or “stylus”). Gore wanted ballots containing indented chads counted; Bush did not. Politically, the reasons were obvious. Bush, always ahead in the complete state count, feared that Gore would pick up a net gain of votes if ballots were counted by hand and would pick up an even larger net gain of votes if ballots with tri-chads and indented chads were counted. The reasons for this fear were (a) the manual recounting was occurring in majority Democratic counties, and (b) there is some evidence that Democratic voters failed to punch ballots fully more often than did Republican voters. Bush translated these political arguments into this question: If the only evidence of a vote is a tri-chad or an indented chad, can we really be sure the voter intended to vote? One detached corner of a chad or the impression of the voting tool on a chad could mean an intent to vote but could just as easily mean the voter changed his mind or could merely be a stray marking on the ballot. We should count votes only when we are clear that they are votes, and not otherwise, argued Bush.
Gore responded that we must start from the presumption that when a voter takes the time to go to the polling place on a presidential election day, the voter intends to cast a vote for president. We have a high rate of citizens not voting at all; we shouldn’t assume that those who show up at the polls don’t mean to vote for president. If the ballot contained no evidence of a vote for president, or evidence of a vote for more than one candidate, then even Gore would back off. But so long as the ballot contained some evidence of a vote for one candidate—albeit slight evidence, such as a tri-chad or an indented chad—the presumption should favor counting that ballot as a vote, maintained Gore.
What does Florida law say? If Florida law said “count ballots containing indented chads” or if Florida law said “other than fully punched ballots, count ballots only if they contain hanging or swinging chads,” much of the controversy would have disappeared. But Florida law is less clear. In the section specifically covering manual recounts, the law states only that officials should examine the ballot to determine “the voter’s intent.”2 In a separate section of Florida law, officials are instructed to look for a “clear indication of the intent of the voter.”3 There is a difference between the two standards. Requiring “clear” evidence of voter intent is a higher evidentiary burden than requiring evidence of “voter intent,” without the requirement that such evidence be “clear.” This difference did not play much of a role, though, in the squabble over manual recounting in Florida. Furthermore, although Florida law empowers the secretary of state to issue regulations interpreting election law, there are no regulations interpreting either of these statutory provisions. Neither are there any Florida cases interpreting the meaning of “voter’s intent” or “clear indication of the intent of the voter.” The statutes give each county the power to recount ballots by hand, and, at various occasions throughout the postelection saga, Florida courts at different levels reiterated the statutory language, refusing to say anything more about how to ascertain the intent of the voter. What the courts all said, in one way or another, was that counties may not establish per se rules—they may not, that is, refuse to count certain chads or certain markings as evidence of a vote.4 Rather, they must examine the totality of the circumstances—a legal fudge phrase meaning, “Look at all available evidence, but we won’t tell you precisely what counts and what doesn’t.”
Thus, Florida law (a) sets forth a broad, vague standard, requiring an examination of ballots for evidence of voter intent, and (b) delegates that task to county officials. Bush challenged both aspects. He argued that the standard is too vague and that the discretion given to county officials is too subject to bias and inconsistent application. As discussed in Chapter 9, a version of those arguments prevailed at the U.S. Supreme Court and helped end the election in Bush’s favor. For now, though, it is helpful to see how the Florida standard for manual recounting compares with that used in other states. As it turns out, Florida is not unique. Many state statutes authorize manual recounts, and almost all do so without specifying clear rules for counting. Moreover, many judicial decisions have approved counting ballots on the basis of all sorts of evidence of voter intent.
In addition to Florida, statutes in the following states authorize manual recounts without specifying a standard for counting ballots: California, Indiana, Kentucky, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Washington, and West Virginia.5 That is a fairly broad array of states, from different geographic regions, of different sizes, and with different demographic makeups. In all these states, manual recounts are a standard part of elections practice. Some of these states make clear that manual recounts are the best way to ensure an accurate count. For example, Montana law provides that recount boards may “order manual counting of the votes cast if they believe it is necessary to resolve all questions relating to the election.”6 In Nebraska, if an initial machine recount reveals a substantial change from the initial count, “the ballots shall then be manually counted in any precinct which might reflect a substantial change.”7 Nevada insists on a manual recount for all ballots for an office if an initial partial recount reveals a significant discrepancy from the original machine count.8 In Rhode Island, if an initial recount results in a margin of less than 3 percent between the winner and the second-place finisher, the losing candidate has a right to a manual recount of all ballots.9 In Washington, a manual recount is also required (unless both candidates waive it) for close elections.10 West Virginia requires a complete manual recount if the result of an initial sample manual recount is significantly different from the initial machine count.11
Thus, it is clear that manual recounts are part of elections practice in many states. But states generally do not provide guidance for counting ballots by hand. When officials are examining ballots, they are looking for what the voter did on the ballot, for evidence of the voter’s preference. But precisely what should count as evidence of voter intent, and what should not count? Before examining how various state courts have dealt with this problem, it may be helpful to look at the one state that provides specific guidance for manually recounting punch-card ballots. It is, ironically, Texas.
George W. Bush, as governor of Texas, signed into law the one statute that gives clear guidance on counting ballots by hand. Here is what it says:
(d) Subject to Subsection (e), in any manual count conducted under this code, a vote on a ballot on which a voter indicates a vote by punching a hole in the ballot may not be counted unless:
(1) at least two corners of the chad are detached;
(2) light is visible through the hole;
(3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote; or
(4) the chad reflects by other means a clearly ascertainable intent of the voter to vote.
(e) Subsection (d) does not supersede any clearly ascertainable intent of the voter.12
These subsections apply both to initial counting by hand and to manual recounting, which is the preferred method of recounting under Texas law.13 The Texas statute sets out a general standard similar to that in Florida: “[C]learly ascertainable intent of the voter” is the basic rule officials must follow. But, unlike Florida, Texas gives statutory guidance. It lists at least three ways a ballot should be counted as a vote. Item (1) covers both swinging chads (two corners detached) and hanging chads (three corners detached). Item (2) covers ballots that have been punctured enough so that light is visible through the hole. Item (3) covers indented, that is, “dimpled,” chads. If the Texas statute had been in effect in Florida, the Bush team could not have argued that the standard was too vague or that counties were applying different rules. If the Texas statute had been in effect in Florida, many more ballots would have been counted as votes, rather than rejected as undervotes. It is not clear whether Gore would have picked up enough net votes to prevail. But the entire course of the postelection period would have been different. Indeed, the argument on which Bush eventually prevailed at the U.S. Supreme Court—that the Florida standard was too vague and subject to inconsistent discretion of various county officials—would have disappeared. But Florida isn’t Texas, and despite the ironic fact that the most specific hand-counting statute in the nation was signed into law by George W. Bush, that fact could be used only as effective rhetoric against Bush, not as binding law. The clear-intent-of-the-voter standard, although present in both Texas and Florida law, is not further defined in Florida, as it is in Texas. That proved to be a big difference.
Courts in many states have allowed voter intent to be discerned in a variety of ways. An early-twentieth-century Florida Supreme Court decision held that ascertaining voter intent is more important than strict adherence to instructions:
While the general election law of the state directs that the X mark of the voter be made “before” the object of the elector’s choice, there has been no authoritative holding here that the provisions requiring the X mark to be placed before the words voted on is mandatory, and that if the X mark is placed after the words voted on, the ballot should be discarded. … Where a ballot is so marked as to plainly indicate the voter’s choice and intent in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated.14
The Gore legal team frequently cited a Massachusetts high court decision, which included helpful language about dimpled, or indented, chads:
The critical question in this case is whether a discernible indentation made on or near a chad should be recorded as a vote for the person to whom the chad is assigned. The trial judge concluded that a vote should be recorded for a candidate if the chad was not removed but an impression was made on or near it. We agree with this conclusion. …
We find unpersuasive [the] contention that many voters started to express a preference in the congressional contest, made an impression on a punch card, but pulled the stylus back because they really did not want to express a choice on that contest. The large number of ballots with discernible impressions makes such an inference unwarranted, especially in a hotly contested election.
It is, of course, true that a voter who failed to push a stylus through the ballot and thereby create a hole in it could have done a better job of expressing his or her intent. Such a voter should n...

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