Michael T. Griffith
@All Rights Reserved
Did Al Gore try to steal the 2000 election
by asking for manual recounts in four largely Democratic counties in
I contend that both political parties have
valid arguments and complaints about the battle for
First, let's consider the arguments that can
be made in support of the Democrats' contention that the
1. When the possibility of appealing to the Supreme Court of the United States (SCOTUS) was first discussed very early in the recount dispute, even GOP attorneys stated in television interviews that this was "a long shot" because they didn't see how the SCOTUS had any jurisdiction in this matter. They expressed the view that this was a state matter and that they doubted the SCOTUS would get involved. Mind you, these were Republican lawyers.
2. Concerning the issue of jurisdiction and
the argument that the election battle in
3. About three weeks later, on December 6,
2000, the 11th Circuit Court of Appeals again rejected a Bush request to stop
the manual recounts in
4. Although the Florida Supreme Court (FLSC) did extend by twelve days the certification deadline established by the state legislature, they only extended it so that the manual recounts could be completed. The FLSC cited the case of Boardman v. Esteva. The Boardman ruling, in a case concerning an election contest over absentee ballots, unequivocally rejected "strict compliance" with "statutory requirements." It held that the people's right to vote should not be sacrificed to the "technical" requirements imposed by the state's legislature. The court reasoned that if absentee ballots could be counted even though they were technically in violation of statutory election law, regular ballots could be manually counted past the certification deadline and that votes could be determined from those ballots as long as the voter's intent could be reasonably determined.
5. Republicans spent weeks complaining that the manual recounts were unfair because they were only in four handpicked Democratic counties. Fair enough, a reasonable point. But when the FLSC ruled that a manual recount would have to be done statewide, in every county where there were significant undervotes, the GOP still objected to the recount.
6. To believe the GOP rhetoric that was
heard during the
7. The Republicans did not object to manual
recounts in heavily Republican counties. During the first statewide recount,
that is, during the machine recount, at least nine counties manually canvassed
returns rejected by machines using the statutory "intent of the
voter" standard. These included Seminole, Polk,
8. In heavily Republican Seminole County, the supervisor of elections permitted two Republican campaign workers to use her office so that they could fill in missing voter ID numbers on over 4,000 Republican absentee ballot applications that otherwise would have been rejected. The Bush team raised no objections to this. Nor did they contest any of the Bush votes that they received as a result of the Seminole County absentee ballots. In Martin County, the supervisor of elections, who was a Republican, let Republican Party workers take away absentee ballot requests on a daily basis, add missing voter identification numbers to them, and then resubmit them, in violation of Florida election law. The Bush team didn't object to absentee votes from Martin County either.
9. The Seminole County absentee ballot dispute ended up in court. The Bush team did not object when a circuit court judge ruled that the Seminole County absentee ballots, which heavily favored Bush, could be counted even though they were not in technical compliance with state election law. The judge said the issues were governed by a 1975 Florida Supreme Court case, Boardman v. Esteva, which, as mentioned, held that absentee voters need not "strictly comply" with the "technical" requirements imposed by the Florida legislature. But this line of reasoning is exactly what the Bush team objected to in the FLSC's decision when the FLSC extended the statutorily designated seven-day deadline for certifying election results. The Bush team loudly complained and sued when the FLSC, citing the Boardman case, stated that the people's right to vote, guaranteed by the Florida Constitution, superseded the "technical" requirements of the certification deadline imposed by the Florida legislature. Yet, the Bush team did not complain when the circuit court judge who ruled on the Seminole County case cited the Boardman precedent and allowed the absentee ballots from Seminole County to be counted, even though, by his own admission, many of those ballots were not in "strict compliance" with "technical statutory requirements." In other words, when a circuit court judge decided to wave the technical requirements of Florida election law in the case of the Seminole County absentee ballots (which, as mentioned, heavily favored Bush), the Bush team had no objections. But, when the FLSC used this same sort of reasoning, based on the Boardman case, to permit manual recounts beyond the certification deadline set by the legislature, the Bush team cried foul. Most Democrats saw this as brazen hypocrisy that belied the GOP's professed concern for "strict compliance with state election law."
10. The Martin County absentee ballot dispute also ended up in court. The Bush team didn't object when another circuit court judge ruled that absentee ballots from heavily Republican Martin County could be counted, even though they, like the ones from Seminole County, were not in strict compliance with state election law. As mentioned, the Martin County supervisor of elections, a Republican, let Republican Party workers take away the ballot requests on a daily basis, add missing voter identification numbers and then resubmit them. However, Florida election law stipulates that only a voter, a family member or guardian may complete all information on the absentee ballot application. What the GOP election workers did was "technically" illegal (in other words, it was illegal), by the judge's own admission. This was another case where the Bush team seemingly forgot about its loud insistence that Florida election law be strictly followed, perhaps because the Martin County absentee ballots heavily favored Bush. Here, too, most Democrats found it hard to take seriously the GOP's professed concern for "strict compliance with state election law."
11. Florida Secretary of State Katherine Harris's decision to exclude late manual recount results from Palm Beach County seemed arbitrary, since the statutes did in fact contain conflicting language--one statute, the more recent, said such results "may" be rejected. Given that the Palm Beach County recount was completed just two hours late, and given that Palm Beach officials faxed Harris raw recount data on a large portion of the disputed ballots just before the certification deadline, her refusal to count any of the Palm Beach recount results appeared to many as rather partisan and arbitrary.
12. The Bush camp's appeal to the SCOTUS didn't seem to be in harmony with GOP rhetoric about federalism, states rights, trusting the people, keeping disputes at the lowest level, etc., etc. Numerous legal scholars have complained that the the five conservatives on the court "hypocritically threw overboard" their judicial philosophy of restraint, deference to the states, and a repeatedly voiced preference that the political process, rather than the courts, resolve disputes. The court's critics claim that in a crucial case, the conservative justices betrayed their principles, liberally and expansively interpreted the equal protection clause of the 14th Amendment, failed to defer to the Florida Supreme Court's interpretation of Florida law, and aggressively intervened in the political process before it had a chance to play itself out.
13. Palm Beach County was slow in starting its manual recount and then decided to delay the recount five days after the Gore campaign had requested a manual recount. The election officials in Miami-Dade County were likewise slow and hesitant in their recount efforts. Should Gore have suffered because the election officials in Palm Beach and Miami-Dade counties were indecisive and slow?
14. Each manual recount was supervised by a judge. Each recount panel usually consisted of three counters and included at least one member from both political parties. Both political parties had observers at all the recounts and could appeal any vote determination to the judge overseeing the recount. In many cases, the vote determination was approved by all members of the recount panel.
15. During the recount battle, GOP attorney and columnist Ann Coulter admitted on the FOX News show "Hannity and Colmes" that Katherine Harris did have the legal authority to extend the certification deadline and not just in cases of natural disaster and machine malfunction.
16. On a Friday night, December 8, 2000, in the Leon County Circuit Court, before Judge Terry Lewis, Bush attorney Phil Beck clearly seemed to contradict the Bush team's claim that a hand recount amounted to "reading the voter's mind" and that such recounts were "wholly subjective and unreliable." Beck admitted that a partially detached chad was a "clear indication" of voter intent. Beck also admitted that one could identify an indentation made by a punchcard stylus. Beck further admitted that if a ballot showed an indented chad for one of the presidential candidates and also showed indented chads in other races, and if these indentations were made by a voting machine stylus, this was "a fair indication" the voter intended to vote for the presidential candidate whose chad was indented. And, Beck admitted that it was the standard in other parts of the country that indented chads could be counted if the voter indented chads in other races and not just in the presidential race.
17. The SCOTUS cited "equal protection" in its Bush v. Gore decision, yet the court apparently saw no "equal protection" issue in the fact that the counties that used the archaic punch-card systems were heavily Democratic counties and that those counties had a much higher rate of undervotes than the counties that used optical scanners, most of which were predominantly, wealthier Republican counties. The eighteen counties that used punch-card systems reported an undervote rate of more than 1.5 percent. The counties that used optical scanners had an undervote rate of only .03 percent. That's a huge disparity, and it heavily favored Bush.
18. The SCOTUS's insistence that the statewide recount had to be finished by December 12 seems particularly unfair and unreasonable. The court could have given Florida as much as six more days to complete the statewide recount, since the federal deadline for certifying the list of electors wasn't until December 18. The SCOTUS did not actually order the statewide recount to be halted; rather, it ordered that the recount had to be completed by December 12, even though it knew this was impossible. Florida may have been able to complete the recount by December 18. There was no compelling legal reason the recount had to be finished by December 12. As mentioned, the federal deadline for certifying electors wasn't until December 18. Even many conservative legal scholars agree that the SCOTUS's remedy, i.e., the December 12 deadline, was the most questionable aspect of the court's decision.
19. Subsequent analyses of the Florida ballots have shown that Gore would have won under several recount scenarios. One review of the ballots, conducted by a consortium of newspapers and statisticians, determined that Gore would have won in six of nine vote-counting scenarios. See:
http://www.latimes.com/la-111201recount.story (don’t let the article’s title throw you off; keep reading)
It seems likely that a majority of Florida voters went to the polls intending to vote for Al Gore, but that for various reasons (such as overvotes, machine malfunction, and confusion over the butterfly ballot in Palm Beach) this was not reflected in the official vote tally. Even conservative legal scholars Peter Berkowitz and Benjamin Wittes concede that a majority of Florida voters probably intended to vote for Gore:
"There is good reason to believe that on November 7, 2000, a majority of Florida voters cast their ballots intending to vote for Vice President Al Gore." ("The Professors and Bush v. Gore," The Wilson Quarterly, Autumn 2001)
I believe one can see how Democrats can conclude that the hand recounts were valid, that the GOP's professed concern for strict adherence to the letter of state election law was selective if not doubtful, and that the SCOTUS, on a 5-4 conservative vs. liberal vote, unfairly stopped a manual recount that should have satisfied the GOP complaint that the previous recount was unfair because it was only in pro-Gore counties.
Now, this being said, let's consider the arguments that support the GOP position that the manual recounts were unfair and illegal, that the FLSC was wrong, and that Bush legally won the election:
1. The Gore team only asked for manual recounts in four heavily Democratic counties. If they were so concerned that "every vote be counted," why didn't they ask for a manual recount in every county that had a significant percentage of uncounted votes?
2. The FLSC, which was composed of seven Democrats, extended the seven-day deadline set by the legislature for certification. The law set a specific deadline for certifying election results. Article 1, Section 4 of the U.S. Constitution stipulates that state legislatures are to determine the time, manner and place of elections. State supreme courts do not have that authority. The FLSC overstepped its authority and acted as a legislature, and therefore its decision to order a statewide recount deserved to be overturned. See:
3. The FLSC's decision to order a statewide recount of undervotes in Florida was decided by a narrow 4-3 margin. In other words, even three of the seven Democrats who comprised the FLSC dissented, including the chief justice of the court, Charles Wells. Chief Justice Wells wrote a stinging dissent, in which, among other things, he said the court's ruling had no foundation in Florida law:
I believe that the majority's decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution. . . . The majority's decision to return this case to the circuit court for a count of the undervotes from either Miami-Dade County or all counties has no foundation in the law of Florida as it existed on Nov. 7, 2000, or at any time until the issuance of this opinion. . . . The prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. . . . I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, to our state and to this court as an institution.
4. Seven of the nine SCOTUS justices agreed that the statewide recount was constitutionally problematic. Justices Stephen Breyer and David Souter wanted to give Florida six more days to complete the statewide recount, but they agreed there were equal protection problems with the recount process. They voted with the minority because the five conservatives insisted on demanding that the statewide recount be completed by December 12. As Joseph Farrah observes,
To remind everyone what happened in that historic ruling, the court ruled 7-2 that the recount system in place did not meet constitutional muster. Seven justices in all found an equal protection violation. Five found three violations of federal law.
Where the court was split more closely (5-4) was on the remedy. Only five justices agreed that recounts must stop by Dec. 12, the state of Florida's deadline for certifying elections. Two other justices, David Souter and Stephen Breyer, would have given the recounts six more days because Dec. 18 was the federal deadline for certifying the list of electors. ("Setting the Clintons Straight," WorldNetDaily, November 7, 2002, http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=29576)
5. The FLSC did not order a statewide manual recount of all uncounted votes, but only a recount of the undervotes, i.e., the ballots that didn't register a vote when they were read by vote-counting machines. Berkowitz and Wittes explain:
It was not a full manual recount of the presidential vote. Nor was it a full manual recount of undamaged ballots that failed to yield a valid, machine-readable vote for president, as would appear to have been required by the Florida Supreme Court's own principle that all votes should be counted in pursuit of a "clear indication of the intent of the voter." Rather, the Florida court ordered a manual recount of a subset of the so-called nonvotes, the undervotes, which are ballots (estimated to number about 60,000) with no machine-readable vote for president. Despite the objections raised by Florida chief justice Charles T. Wells in his dissent, indeed without explanation, the majority excluded from the recount overvotes, an entire class of undamaged ballots (estimated to number about 110,000) that were invalidated because machines detected multiple votes for president. And yet, like the undervotes, they too may have contained (and we now know did contain) discernible choices. ("The Professors and Bush v. Gore")
6. It wasn't Bush's fault that the four Gore-selected counties couldn't complete their manual recounts prior to the statutory certification deadline. One of the counties that Gore selected, Miami-Dade County, didn't even begin its manual recount until after the statutory certification deadline had passed. Then, Miami-Dade County suspended its manual recount five days after it started it. Another one of the four Gore-selected counties, heavily Democratic Palm Beach County, failed to complete its manual recount even by the extended deadline set by the FLSC because it chose to only work half days and to take Thanksgiving Day off! It wasn't Bush's fault that the Democratic election officials in Palm Beach County were so lazy and inefficient even though the outcome of the presidential election was on the line.
7. The Gore campaign targeted military ballots for rejection on any technical grounds no matter how trivial. Gore lawyer Mark Herron sent a five-page letter on November 15, 2000, to Democratic attorneys throughout Florida, detailing how to challenge military absentee ballots. This certainly didn't seem to be in keeping with the Gore team's battle cry of "count all the votes" and "every vote should be counted."
8. One of the Gore-selected counties, Broward County, changed the criteria for determining votes from manually counted ballots in the middle of the first manual recount. Broward County began their recount using a strict standard for determining votes, which primarily required clear punches or chads hanging by one or two corners in order for a vote to be counted. About midway through the process, the standard was changed to a more liberal standard, which allowed dimples and pregnant chads to be considered primary evidence of voter intent. This change gave Gore an extra 884 votes. Changing the rules in the middle of the game is not usually viewed as fair or proper.
9. Another one of the Gore-selected counties, Palm Beach County, also changed vote-counting standards during the manual recounts. Before the recount got under way, the canvassing board set a hard, clear policy on "how to judge invalid ballots." According to those rules, a vote could be counted from a ballot only if the ballot's chads had two or three corners disconnected. But, just hours into the recount, the canvassing board, which was controlled by Democrats, changed the standard to a more liberal one in which only one corner of the chads had to be disconnected.
10. One can make the perfectly valid argument that Bush won the Florida election among votes that were properly and legally cast. It wasn't his fault that so many Democratic voters in Palm Beach County couldn't figure out the butterfly ballot, which, after all, was designed by a Democrat. Nor was it Bush's fault that so many Gore voters made extra marks on their ballots, which caused them to be disqualified (as overvotes).
11. There would have been more time for a court-ordered recount in the contest phase if Gore hadn't challenged the certification of the election results, as Katherine Harris points out in her new book, Center of the Storm. Some of Gore's legal advisors urged him not to challenge the certification but to focus on the contest phase that would follow certification. If Gore had done this, there may have been enough time to complete the manual recounts. But, Gore chose to listen to his political advisors rather than his legal advisors. Gore's political advisors were afraid that if Bush were "certified" as the winner, this would create the impression that the election was over. So Gore chose to contest the certification. He failed, and in the process he used up precious time that could have been used for the manual recounts. That wasn't Bush's fault either.
12. Bush may have received several thousand more votes in Florida if the TV news networks had not prematurely projected Florida as going to Gore even though he had only a razor thin lead and even though the polls in the heavily Republican Florida panhandle region were still open. The Florida panhandle is in the central time zone, an hour behind the rest of the Florida. There were reports of long lines at the polls in that area, and of people leaving when they heard the state had been called for Gore. Some analysts suggest the media's premature projection of a winner in Florida may have cost Bush as many as 10,000 votes from the panhandle. Other analysts put the number at around 5,000 votes. If this is true, the recounts may never have been requested in the first place because Bush would have had a much larger lead from the first machine count. See:
(However, some experts argue that the effect of the premature media projections for Gore was minimal.)
13. Bush may have won a statewide manual recount. An independent accounting firm studied over 20,000 of the Florida undervotes and concluded a manual recount of the undervote ballots would not have produced a Gore victory. Studies have also shown that Bush would have won if the first manual recounts had been allowed to continue (i.e., if the recounts in the four Gore-selected counties had been completed). Another study found that Bush would have won in three of nine recount scenarios. In an article titled "Under the Two Most Likely Scenarios, Bush Wins Florida," Palm Beach Post staff writers said,
Al Gore was doomed. He couldn't have caught George W. Bush even if his two best chances for an official recount had played out, according to a Palm Beach Post analysis of 175,010 uncounted Florida ballots from last November's chaotic presidential election.
I think these points should enable us to understand why Republicans believe that Bush legally won the battle for Florida's electoral college votes and that therefore he legally won the general election and has every right to be president.
Neither the Bush team nor the Gore team engaged in strictly honorable, saintly conduct in the battle to secure Florida's electoral college votes. Both sides played hardball. Both sides tried to get rules bent or ignored. And both sides had valid complaints about what the other side was doing.
On an aside note, the Bush team's appeal to the SCOTUS was unnecessary, since the GOP-controlled Florida legislature could have (and was absolutely prepared to) reject Gore electors and to replace them with Bush electors.
So what do we "know for sure" about the battle for Florida in the 2000 election? What major facts can we agree upon concerning the election?
1. Bush won the first machine count.
2. Bush won the second machine count.
3. Some of the absentee ballots that were counted were not disqualified even though they were technically in violation of state election law.
4. The hand recounts were not conducted according to a uniform standard, and two of the four Gore-selected counties changed their manual recount standards after the recounts had begun. Some of the hand recounts were done in Republican counties and were not done in a uniform manner either, yet the Bush campaign did not complain about them because they favored Bush.
5. A district court and a circuit court of appeals declined to stop the manual recounts, but the U.S. Supreme Court decided on a different course of action and halted the statewide recount that had been ordered by the FLSC.
6. Florida election law specified that the election results were to be certified seven days after the election.
7. The Florida Secretary of State had the legal right to certify Bush the winner by the seven-day deadline and certainly by the extended deadline set by the FLSC.
In conclusion, I think it's fair to say the following: Bush won Florida among votes that were properly cast on election day. A straightforward reading of Florida election law supports the Bush position with regard to the certification deadline and with regard to the halting of the statewide manual recount. It's unfair to say that Bush stole the election or that there was no valid legal reason to stop the statewide manual recount. Personally, I wanted to see the statewide manual recount continue. But, it must be conceded there were legal grounds for halting that recount. Gore had every right to request recounts in the four counties he selected. In all probability, more Florida voters went to the polls intending to vote for Gore than for Bush, but for various reasons this was not reflected in the vote count. It seems likely that if all the undervotes and overvotes had been counted according to fair and consistent standards, Gore probably would have won the vote. If this had happened, the Florida legislature could have (and very probably would have) intervened and elected Bush electors anyway, which they had the legal, constitutional right to do. One can understand the frustration of Gore supporters. If more Gore voters had voted properly on election day, Gore most likely would have won. If all Florida counties had been using optical scanners, Gore probably would have won. But they didn't and they weren't.
About the Author: Michael
T. Griffith holds a Master’s degree in Theology, a Graduate Certificate in
Ancient and Classical History, a Bachelor of Science degree in Liberal Arts,
and two Associate in Applied Science degrees. He also holds an Advanced
Certificate in Civil War Studies and a Certificate in Civil War Studies.
He is a two-time graduate of the Defense Language Institute in