A Different Florida Vote–in Hindsight

By Richard T. Cooper, Los Angeles Times

It was like a seed. For Al Gore and his senior field commanders, almost everything they did during the historic postelection battle over Florida and the presidency grew out of what was there at the beginning.

Events had an impact. So did forces and individuals beyond their control.

But from the earliest strategy meetings, the vice president and his top aides initiated the recount battle plagued by a gnawing sense that the very legitimacy of their effort was open to question. And to the end, while never doubting they had votes enough to win–if only they could get them counted–the Gore camp feared that going one step too far would exhaust the public’s patience and end the game.

The opposite mind-set prevailed in the camp of George W. Bush. To the Republicans, Gore was simply trying to snatch away a prize that they already had won. They saw the recount battle as a holy war.

“We thought it was a valid election,” says GOP election law guru Ben Ginsberg. Case closed.

Did Gore and his senior advisors miss pivotal opportunities because they lacked the same conviction? Did their fear of antagonizing the public cause them to shy away from more aggressive steps that could have brought victory?

The game will be replayed by scholars and politicians for decades. Change a decision here or a deadline there and the country might have got a different president.

That will be hindsight. But in the fog of the battle, both sides made on-the-spot decisions dictated by their beliefs and gut feelings.

Here is what participants say about how they saw their choices and made their decisions at six critical junctures in the fight:

The first major decisions were forced on both sides less than 48 hours after election night, almost before their hastily assembled teams had unpacked their bags in Tallahassee, Fla. The decision makers had too little time, too little information, too little sleep. And the choices they had to make were fraught with risk.

Yet these decisions would define–and potentially limit–the scope of the battle. Opportunities given up might be gone forever.

Bush and his advisors gathering in Florida had to decide what kind of defense to mount. They could stand pat, fighting to protect their razor-thin lead. Or they could counterattack, seeking additional votes to offset gains the Gore forces might make.

The entire Bush high command would take part in the final decision, with Ginsberg–the campaign’s chief counsel–playing a key role. In 1998, Ginsberg had helped Florida’s GOP Sen. Connie Mack stave off an absentee ballot recount effort by Democratic challenger Buddy McKay.

The day before the presidential election, Ginsberg had lunch with a group of Republican lawyers in Austin, Texas. When someone raised the possibility of a recount, “we all agreed it would never happen,” he says. “It would be a lawyer’s nightmare.”

By 4 a.m. on Nov. 8, the day after the election, the nightmare had arrived. Ginsberg woke up GOP election law specialists across the country before he flew off to Tallahassee.

Under Florida law, candidates can challenge the outcome of an election in two phases. In the first, the protest phase, Bush and Gore had 48 hours to notify any of Florida’s 67 counties that they wanted vote totals there reexamined. Local officials would decide how to respond.

The second phase would come after Florida’s secretary of state–in this case Bush campaign official Katherine Harris–had certified the result. The loser then could “contest” the election, and the issue would move into the courts.

The Bush commanders considered but rejected initiating the protest phase by calling for recounts in some northern counties, where they believed they could pick up enough new votes to neutralize any Democratic gains in the south.

GOP voters, they decided, had had no significant trouble voting anywhere in the state. And strategically, Ginsberg says, “we felt it was important to validate the results of the election rather than challenge them. Otherwise, we might have cast additional doubt on the validity of the election and slowed down the process.”

The choices were more complicated for Gore’s lieutenants.

Some Florida legal experts argued that forgoing protests and moving straight to a contest phase would give them more time and remove the struggle from the political arena and into the courts.

Politically, however, the risks seemed prohibitive. Everything depended on posting more votes–not just the outcome but the public perception that Gore had legitimate grounds for dragging out the final determination of the winner.

So they would protest immediately. But where?

When former Secretary of State Warren Christopher joined other top Gore strategists at the Governor’s Inn in the state capital that Wednesday afternoon, less than 30 hours before the decision deadline, uncertainty reigned.

Numbers were pouring in from the machine recount, which begins automatically in close Florida elections but does not involve examining ballots. “There was no great precision in knowing how many counties you needed to close the gap,” says Florida Democratic strategist Kendall Coffey. “It was still a moving target.”

Moreover, the race had been so tight and there had been so many problems in some places that “it was completely impossible . . . to get a grasp of what the issues were,” says Karl Koch, a Boston-based Gore consultant.

Should Gore demand a statewide recount? Chris Sautter and John Hardin Young–the on-board recount experts–recommended one. “I felt we had a better chance of winning this thing on a statewide basis,” Young says. “There were rumors of a lot of undercounted votes for us in Miami and Palm Beach, but it never works that way.

“I’d like to say I looked ahead and realized that we’d have the moral high ground if we asked for a statewide recount, but it really wasn’t that. I thought we had a better chance of finding more votes if we went statewide. Plus we were better organized, so we could get people in every county and the Republicans couldn’t.”

Others in the room disagreed.

“There is no provision in Florida law to permit a statewide recount. One would have had to file 67 petitions with 67 canvassing boards,” says Democratic strategist Mark Herron, an expert in Florida election law. “The other requirement is you have to state a reason when you request one.

“At that point in time, we didn’t know of problems in but a handful of counties,” Herron says. “The media had extensively reported on Palm Beach, Dade and Broward. We knew about Volusia.” In all four, there seemed to be evidence that thousands of Gore votes might never have been counted.

Christopher weighed in strong against going statewide.

“My only contribution was to ask for hand counts only in places where there was an objective justification in terms of anomalies,” Christopher says. “I had very much in mind that we were going to have to persuade individual canvassing boards to do this recount. It’s not as if we could just snap our fingers.”

Uppermost in the minds of many senior aides was another need: justifying to the American people the almost unprecedented step of challenging a presidential election. In more than 200 years, nothing exactly like it had ever happened. Would people stand for it?

Confining the challenge to four counties in which irregularities already had received attention seemed most likely to win acceptance.

In reaching that conclusion, the Gore team was hobbled and helped by another issue–Palm Beach County’s infamous “butterfly” ballot. The design of the ballot caused such confusion that many elderly Jewish voters mistakenly cast ballots for conservative Reform Party candidate Pat Buchanan. Nationwide, media coverage of the anguished and obviously sincere voters was intense. It helped establish the legitimacy of Gore’s claim that Florida merited a second look.

As for decisions that had to be made Wednesday and Thursday, however, the butterfly was a red herring. Short of a new election, which no one considered feasible, there was no way to disentangle the unintended Buchanan ballots from those cast in earnest.

The real opportunity was in the counties with large “undervotes”–ballots on which machines did not register a vote for president.

Eventually, even Young came to accept the practical necessity of limiting protests to the four counties. Given the legal and logistical problems, he says now, “a statewide recount might well have imploded of its own weight without having any benefit to either party.”

As senior aide Ron Klain and others kept emphasizing, what Gore needed was to put votes on the board quickly.

Focusing only on counties with glaring problems and on counting votes instead of mounting legal challenges not only held out the best hope of quick gains but also gave Gore “a moral strength and legitimacy,” in Coffey’s words.

Win or lose, all the chips would rest on Broward, Volusia, Miami-Dade and Palm Beach counties.

Reasons for second thoughts were not long in coming. Republicans–it soon became clear–were standing pat but not standing idle.

Publicly, former Secretary of State James A. Baker III, Bush’s recount point man, chanted the mantra, “Counted. Recounted. We won.” The Bush team accused the Democrats of undermining constitutional tradition by refusing to accept defeat. Gore only wanted selective recounts in Democratic strongholds, the GOP complained.

Gore refused to let Democrats fire back, whether from principle, as his supporters say, or for fear of a backlash. “Some wanted to step it up, [but] I don’t think he ever wavered,” a senior aide says. “We were a little bit disadvantaged. . . . They were effective in their PR war.”

On the ground, moves by Harris and others slowed the recounts. The Florida secretary of state warned county officials that she intended to enforce tally deadlines strictly. She cast doubt on the legality of what they were doing.

The result was a series of temporary halts and delays. Mitchell W. Berger, a prominent Florida lawyer helping the Democrats, attributes 11 days of delay to Harris and four more to a U.S. Supreme Court stay issued before its final opinion. “I don’t know what we could have done to avoid those 15 days.”

Nor were GOP lawyers sitting on their hands. “They had paid lawyers all over the place,” Koch says. “They were aggressive, in people’s faces. They slowed the process down, which is what they wanted. It’s the classic football metaphor: They had the ball, time was running out and all they had to do was sit on the ball.”

The result, especially in Palm Beach and Miami-Dade counties, was that the recounts were ominously slow to deliver the cascade of new Gore votes that Democrats were counting on.

Worse yet, before the week was out, evidence began to emerge that suggested Gore strategists might have missed a potential treasure trove in a fifth county. Heavily Republican Duval had gone for Bush overwhelmingly–in part because Jacksonville’s large African American population had failed to deliver in the expected numbers for Gore.

Why? Again, voter confusion over ballot design seems to have played a role. Thousands of people in black precincts marked their ballots twice for Gore; these so-called overvotes are considered illegal and must be discarded.

In addition, evidence emerged of thousands more undervotes that could be legal ballots if the voters’ intent could be determined.

Gore strategists’ failure to include Duval on the short list where recounts would be sought apparently occurred because critical information came too late.

“We knew about the Duval overvotes” before the Thursday night deadline for seeking recounts, Herron says. “The problem is an overvote is an illegal vote. . . . A manual recount isn’t going to get you those votes. At the time we were focusing on this issue, we didn’t have the information we needed [on the undervotes].”

But the possibilities were tantalizing even on the overvotes. Herron says the Democrats learned only too late that many of the discarded ballots were ones on which a voter selected Gore and also penciled in the vice president’s name on the write-in line. These were ballots that a hand recount might have allowed.

Gore’s hard-pressed agents, however, did not sit down with Democrats in Jacksonville until after the deadline had passed.

On Nov. 15, the politics gods made a decision of their own: to play a little joke on Gore.

On that day, Harris went into court in Leon County with two requests. The first was for the Florida Supreme Court to halt all manual recounts. Gore’s lawyers opposed it and won.

The second request, contained in a 12-page document that was all but lost in the avalanche of paper landing on court clerks each day, seems to have gotten little attention from anyone–except Bush aides in Texas.

The document asked that the high court consolidate the myriad suits being filed all over the state and manage them directly. At that point, more than a dozen lawsuits had been filed in South Florida, most in Palm Beach County. Voters were protesting the butterfly ballot, and Democrats were attempting to secure a looser standard for weighing whether a ballot contained a valid vote.

Harris, says one attorney, “sensed a train wreck. She thought the litigation was going to spin out of control.” The different standards being used in South Florida to decide whether a disputed ballot should count might yield a large number of new votes for Gore.

In effect, Harris asked the Florida Supreme Court to act as a trial court and assume jurisdiction over all the lawsuits, taking them away from the circuit court judges.

Bush’s camp had not been warned of the move. “[They] were just livid about it,” says Donna E. Blanton, a Tallahassee attorney who represented Harris and state election officials.

The Bush camp had become terrified of the state Supreme Court, whose seven justices all had been appointed by Democratic governors.

GOP feelings about the court “evolved from believing that we probably had an uphill struggle against the political background of those judges to knowing that we didn’t have a prayer,” says George J. Terwilliger III, a deputy attorney general in the George Bush administration and an advisor to George W. Bush’s campaign.

The Republicans feared Harris’ proposal could kick the recount process into overdrive–exactly what they did not want.

“The Florida Supreme Court would have said, ‘You can have a statewide recount.’ And they would have said it a lot earlier,” says Jonathan E. Sjostrom, another Tallahassee lawyer who represented Harris and other Florida election officials.

Moreover, having the state court take over the recounts–and possibly establish a uniform standard for judging ballots, as Harris seemed to suggest–might have nullified one of the arguments the U.S. Supreme Court would eventually use to kill Gore’s challenge.

Luckily for Bush, Gore’s lawyers opposed Harris’ proposal, and won.

Later, Gore aides explained that they thought their chances were better in the lower courts.

A GOP lawyer has this explanation: Without thinking, the Gore camp “assumed Harris was being a Republican lap dog.” Whatever she was for, he says, the Gore team was automatically against.

Poor Mark Herron. As significant documents go, the memo he sent out seemed like a no-brainer.

Herron is so steeped in Florida election law that, when Gore pulled back his concession, Rep. Peter Deutsch (D-Fla.) called the Tallahassee lawyer at 4:30 a.m. Nov. 8 and said: “Get up and go to work.”

So when Harris announced she would certify the election as soon as possible after the Nov. 17 deadline for tallying overseas absentee ballots, it was natural for Herron to swing into action. The counting of such ballots had a spotty history in Florida; the Legislature had instituted reforms specifically designed to assure greater legitimacy.

All Herron did was tap out a memo explaining how the rules worked. Four pages long, single-spaced, it made dry reading.

The document, he says, was intended to inform Gore’s troops what to look for when counting absentee ballots. In Florida law, “there is a statute that says you have to have a postmark.”

The first questions to pop up came from Democrats who’d encountered questionable postmarks on Gore ballots. “Apply the rules as we sent them” was Herron’s response.

It didn’t turn out to be that easy.

Both camps had assumed the overseas absentee ballots would benefit Bush. Most came from people in the military, who have historically voted Republican.

So when sharp-eyed Bush observers noticed their counterparts checking documentation on overseas ballots, they pounced.

The Gore campaign was attempting nothing less than the disenfranchisement of American men and women serving their country from afar, Republicans declared. That kicked off an uproar in the media.

Gore aides tried to disavow the whole thing. The memo was not directed toward military ballots, they said. Gore’s running mate, Sen. Joseph I. Lieberman (D-Conn.), went so far as to say that overseas ballots “should be given the benefit of the doubt”–a statement some Democrats in Florida took as an unmerited rebuke.

“All of a sudden, the Republicans were able to turn this into an anti-military issue,” Christopher recalls. “It is remarkable that their characterization stuck, and it did.”

Democratic National Committee attorney Joseph E. Sandler is still indignant. “This was a Republican distortion,” he says. Canvassing boards were just being asked to apply the rules, whether to an overseas employee of an oil company or a member of the military.

Democrats pointed to examples of seemingly gross violations of the statute, including purported overseas ballots submitted by fax from inside the United States.

But the rebuttals never caught up with the allegations.

Before it was over, Herron says, “a significant number of illegal ballots” were accepted.

He thinks the memo cost them “185 votes at the end of the day”–no small loss in the microcosm of the Florida recount.

As the struggle wore on like a game of legal and political crack-the-whip, a trend emerged in Palm Beach County that deeply disturbed the Gore team.

They were convinced that Palm Beach alone could nearly put them ahead. Yet day by day, the gains from the recount were disappointing. And the process kept bogging down.

The same pattern developed in Miami-Dade County in a more severe form. But Gore strategists always had thought, until near the end, that they could win without Miami-Dade. The problems in Palm Beach were what kept them awake nights.

For one thing, Harris’ actions led to repeated pauses. So did various legal proceedings, including some initiated by Gore. And Republicans on the Palm Beach recount teams challenged so many ballots that they created a bottleneck; when the volunteers could not agree, a ballot was held up for consideration by the three-person canvassing board. Thousands of ballots were set aside because of GOP protests, and time ran out before they could be examined.

Equally damaging to Gore, tension developed between his team and the board. Although Democrats nominally controlled the board, things did not go as smoothly as they had in Broward and Volusia counties.

The Palm Beach board decided to shut down for Thanksgiving when the Gore team–worrying about the clock–wanted them to keep counting. The board also took a relatively strict approach to determining voter intent.

Gore’s lawyers decided to go to court to challenge the standard. They won a partial victory from Palm Beach County Circuit Judge Jorge LaBarga, who embraced the concept they advocated but stopped short of issuing explicit instructions to the Palm Beach board on what to do.

“The Friday after Thanksgiving, the Palm Beach board began evaluating ballots under LaBarga’s new directive but was still denying hundreds and hundreds of ballots that were far more than dimples,” says Benedict Kuehne, a former state Democratic Party counsel and member of Gore’s legal team.

Gore’s lawyers did not go back to court. “That was a tactical mistake on our part,” Kuehne says. “The number of ballots they passed over was more than enough to put the vice president ahead. Both sides knew it.”

On the other hand, Kuehne says, “we didn’t want them to stop counting.”

Looking back, some members of the Gore team believe Charles Burton–a local judge who sat on the three-member canvassing board–was playing a double game, pretending to be independent but actually helping Bush. Others insist circumstances were to blame.

The Gore team missed the boat, says Democratic recount expert Young, by not appreciating the magnitude of the problem, “both in timing and in determining the intent of the voter.” Republicans made “a conscious effort to slow it down. I don’t think Burton took all of that into consideration.

“The Republicans won it not on standards, not on anything fancy. They won it on being able to delay the process.”

Burton himself admits failing to realize some 15,000 challenged ballots were piling up behind him and his fellow board members. The disputed ballots were locked away out of the board’s sight, he says, and they did not realize how much work they had to do.

Republicans “objected to a ridiculous amount of ballots,” he says. “We didn’t really run the process. We let the process run us.”

As for not working on Thanksgiving, “in hindsight, we should have done it,” Burton says. “But I’m not going to make any apologies for it. We had been at it every day, every night since Nov. 7. We made a lot of personal sacrifices.”

Besides, he says, “We didn’t play by the script. . . . There was this notion that our mission was to go get Gore votes. Don’t count Bush votes. Just Gore votes. Forget the fact that I’m a judge and I’m not supposed to do that.”

Gore lawyer Kuehne takes a fatalistic view: “There is nothing in the law to kick them in the butt, to move them along, other than to scream and yell and try to throw some kind of moral suasion to get them to go forth. Other than to fight the way we fought and as ugly as we fought, there was no other way to get there.”

If the Gore campaign hit quicksand in Palm Beach County, it won a new lease on life when it brought in trial lawyer David Boies and pushed the legal phase of the struggle into the state Supreme Court.

“It may be that the best piece of lawyering I saw done was Ron Klain’s decision on the need for a trial lawyer of the caliber of Boies,” says senior Gore aide Mark Steinberg. “What Ron recognized coming wasn’t just high stakes but intense, complex, turn-on-a-dime trial work.”

Republicans as well as Democrats admired Boies’ skill. As one legal expert points out, he took a sprawling set of legal issues, streamlined them and carried them from trial court to Supreme Court with great speed and success. Boies also became Gore’s most articulate public advocate for the argument that every vote deserved to be counted.

Yet some believe Boies caught his toe and made a little-noticed misstep that cost Gore dearly.

It happened Nov. 20, when the state Supreme Court agreed to hear Gore’s appeal on hand recounts–an appeal Boies had to win, and did win, in perhaps the greatest Gore victory of the battle.

Early in the two-hour hearing, Chief Justice Charles T. Wells asked a pointed question: How long could the court let recounts continue without running a risk that Florida’s electors would not be certified by the time the electoral college met Dec. 18, as the Constitution specified?

In what sounded to some like a too-casual response, Boies said recounts could be completed in a week. And he accepted the Dec. 12 deadline for certifying electors that was part of Florida law.

A few days later, when the court issued its opinion, it let the recounts continue, but it set a deadline for completing them–the one Boies had approved.

As it turned out, Palm Beach County ran out of time. Miami-Dade shut down its recount entirely. And lack of time later played a central role in the U.S. Supreme Court’s decision to end the whole process.

Did Boies make a fatal mistake? “The record shows he unnecessarily gave the courts his blessing to put more time pressure on the process than was required,” says one longtime Gore associate.

Not so, several members of the legal team say. The campaign thought it could finish in a week and understood the Florida Supreme Court’s concern about time. Moreover, says Gore lawyer W. Dexter Douglass, “You had to have certification in by the 12th, or . . . you threw it into Congress. It’s Republican. They would elect Mickey Mouse if he was a Republican.”

“You need to distinguish between a legally required deadline and practical barrier,” Democratic lawyer John Newton says. “Getting it done by the 12th means nobody can monkey with the results. That’s not a deadline, but it’s a really important date.”

“Should that position have been explained better? As it turns out, probably,” Kuehne concedes.

Whether Boies erred or not, when the court agreed to continue hand recounts, some senior Bush aides were becoming alarmed. Baker beefed up the Bush legal team with more seasoned trial lawyers, including Irv Terrell from Texas and Phil Beck from Chicago. “There was just a sense that we were losing,” Terrell recalls. “I thought we could make a difference.”

Terrell and the others focused on using the Florida courts to build a case for a federal appeal. “The whole Bush strategy was to build a record in state court and then get the Supreme Court of the United States to reverse it,” Terrell says. “Our desire was to get to the [U.S. Supreme Court] with another unbelievable decision from the Florida Supreme Court.”

Republican strategists feel they succeeded brilliantly. Some Democrats take a more jaundiced view of the federal high court. “Five of them were going to shut it down [just] because we were there,” says one bitter Gore lawyer.

Others see the outcome more broadly: Gore, they say, had the harder task of coming from behind. And Bush, with so many home-court advantages in Florida, played a nerve-racking but effective game of defense that might have gone either way, right down to the end.

”. . . it will be years before anyone figures this out,” says Gore legal team member Karl Koch.

Src: https://www.latimes.com/archives/la-xpm-2000-dec-24-mn-4251-story.html

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