I'm currently working with a publisher, Biting Duck Press, to publish a book (title as yet undetermined) on the corruption in our election system. We intend to have it published prior to the November election, and hope that it will help to make Americans more vigilant and concerned about the way our elections are run. I’ve drafted most of the book. I am currently intending to post large portions of it on DU, in the hope of stimulating discussion and obtaining useful feedback.

My first post on this topic dealt with Election Day 2000, and included explanations for the national networks’ two wrong calls that day and the automatic machine recount – all of which helped to explain how screwed up this election was. In this post I’ll discuss the highly controversial 36-day Florida recount, which ended when the U.S. Supreme Court abruptly ended the vote count and awarded Florida and thereby the national election to George W. Bush in what many consider to be one of the three worst U.S. Supreme Court decisions in U.S. history.


Controversies over the hand recounts and vote counting standards

The effort to initiate and conduct a hand recount was a long and arduous affair, with a great amount of legal wrangling, arguments, and posturing before the press, finally ending on December 13th, 36 days after Election Day, when the U.S. Supreme Court abruptly stopped the vote counting and essentially declared Bush the winner.

In the initial days following Election Day, the Bush team went to great effort to stop the recount from occurring, despite the fact that it was specifically allowed by Florida statute. Publicly, they tried to cast Gore as a "sore loser" for trying to obtain the recount. They even began to develop and use (in protest marches) big signs which read "Sore Loserman", as a pun on Gore/Lieberman.

Bush team arguments to stop the recount
Their most common arguments were several versions of the allegation that the Gore campaign was trying to obtain "recount after recount after recount, no matter how many times Bush won the election". This was the favorite refrain of James Baker, Bush's campaign chief in the post-election. Of course the phrase "recount after recount after recount" was meant to convey the impression that Gore was trying to obtain an infinite number of recounts, until he won the election. This impression was apparently facilitated by the fact that the networks had originally called the election for Bush.

But the fact of the matter is that only one full recount was ever completed, and that was the recount that took place automatically, immediately after the initial election returns put Bush ahead with a margin of less than a tenth of a percent of the total vote, without the Gore team having to request it. The hand recount that Gore requested, on the other hand, was never completed.

In the same vein, the Bush team frequently noted that Bush won the election after each recount. Apparently what they meant by this was that every time a county stopped counting and a new vote total was announced, with Bush still ahead, that was considered to be another winning of the election. As time went on, this line of attack became less and less frequent, as it became obvious that not enough people were buying it.

Another line, which I associate with Mary Matelin, was that "These votes weren't meant to be counted by hand, they were meant to be counted by machine because machines are much more accurate," (why didn't someone ask her how she knew this?) After a parade of voting experts made the point that nothing could be further from the truth, this line of attack also slowed to a crawl.

The fact is, as the experts explained it, that an unknown number of ballots that were not counted in the second machine count (i.e., the automatic recount) may still have had hanging chads or have been partially punched through, indicating the intent of the voter to vote for a given candidate. In order to get a better look at what the voter intended, the best way to do this is to look at the ballots with the human eye. This was in fact what Florida law allowed for, as did the law of many other states. Yet the Bush team tried repeatedly to give the impression that the request for the recount was some sort of radical request.

When it was pointed out that Bush himself, as Governor of Texas, had signed into law in Texas a similar statute, which in fact clearly stated that hand recounts are preferable to machine counts because they are more accurate, this contention was made less often. But it didn't stop completely, because the Bush team was still able to think of all sorts of implausible explanations as to why the Texas law was different from Florida’s.

Then there was the contention that repeated handling of the ballots changed their nature, therefore magically producing additional votes for Gore. To "prove" this point, the Republican "observers" in counties where the votes were being counted actually photographed chads that had fallen onto the floor during the vote counting process. Apparently they believed that since they had photographic evidence of this, a certain number of unknowledgeable people would believe that this was important information. But it seems to me that a reasonably inquisitive person should have been able to question what the ballots looked like before the chads fell onto the floor. Did the chads that fell to the floor originate spontaneously from being handled by the vote counters, or were they created by the voters when they voted?

When Bush team people were finally challenged to explain how it was that these chads that ended up on the floor originated in the first place, they claimed that it happened from mere handling of the ballots. Chris Matthews of MSNBC wouldn't totally buy this, and I heard him at least once say to a Bush team person that he didn't see how that could happen (and noted that he couldn't do it himself). He even asked the guy to show him how it was done. When the man made a lame excuse for not being able to do this, rather than embarrass him further, Matthews quickly dropped the matter – thus missing a great opportunity to shed light on the fraud being perpetrated upon the American people.

Another excuse was that the recount would take too long, so that it would not be finished by Inauguration Day, or by the time that the Electoral College was supposed to vote. There might have been some believability to this originally. However, the individual canvassing boards made it clear that it would not take anywhere near as long as the Republicans would have us believe, and later events were to prove this beyond any doubt.

Another Bush team argument was that a hand recount could allow for cheating, whereas machines don't cheat. That could be theoretically possible, I suppose, but the fact that "observers" from both sides were on the scene at all times made that argument considerably less powerful. And machines do cheat when they’re programmed to do so.

Another theoretically plausible argument for not doing the hand count was that there was a big question as to what standard to use for counting the ballots. The Florida statute merely said that "the clear intent of the voter" should be ascertained. Nobody quite knew precisely how that should be done, and many of the canvassing boards sought legal input into this question and had a great deal of trouble in deciding upon the appropriate standard. The Bush team point of view on this was that since there was no well defined standard it would be unfair to count these votes at all, because that would "dilute" other votes cast in Florida. I will come back to this all important point later.

The great majority of arguments that the Bush team made for public consumption were not made in their court challenges because they knew that no court would buy them. In court they argued:

1. The count was unfair because only selected Democratic counties were chosen by the Gore team.

2. The law specified that the count should take place only when there was a demonstrated problem with the machine count.

3. The count was unfair because the standards for counting votes varied between one county and another, and there were no uniformly agreed upon standards. As such, it violated the equal protection clause of the U.S. Constitution by applying different standards to different voters.

Gore team arguments to continue the recount and extend the deadlines
The main Gore argument was that Florida law required that counties be given the opportunity to hand count votes in a close election. Given that, the part of the law that specified a deadline for certifying the returns did not make sense because it did not leave enough time to count the votes. The Bush team had no real counter argument to that (in my opinion), other than to reiterate that the law specified a deadline.

In court the Gore team rebutted the above noted Bush arguments with the following:

1. In response to the fact that the Gore team had requested only that selected counties be counted, the Court asked the Gore team if they would have any objections to Republican Counties being counted as well. Gore’s answer was that there would be no objections to that. The Court then asked the Bush team if they would like to do that, and the answer was no, they would not.

2. With regard to the issue of a demonstrated problem with the machines, the Gore team noted that there were in fact problems with the punch card machines, as it was demonstrated statistically that counties that used them had five times the undervote rate as counties that used other voting methods. Furthermore, the very fact that the first machine recount resulted in many additional Gore votes, and that the hand counting so far in every disputed county resulted in many additional Gore votes was further indication to this effect.

3. With regard to standards, the Florida statute said plainly that the ballots shall be evaluated to determine the clear intent of the voter. True, that statement could and was in fact interpreted in different ways. But that is what the statute said, and it was up to the individual counties to decide how to interpret it. With regard to the issue of equal protection, how could that even be an issue? It was obvious that different voting methods were used in different counties. So how could different ways of evaluating the votes make protection less equal? In any event, it seemed clear that hand counting the undercounted ballots made the protection more equal than it would be without any counting at all.


The Brooks Brothers riot

The Brooks Brothers riot occurred in the midst of all the legal and public controversy over the recount. Made to appear as if it were a spontaneous protest against the recount, which the Bush team vociferously argued against at so many levels, it was later found to be organized by the Republican Party. In fact, many of the participants later went on to jobs in the Bush administration or other high level Republican positions. The riot/protest is commonly referred to as the Brooks-Brothers riot because the expensive clothes that many of the rioters wore were not exactly what you’d expect of protesters.

The purpose of the riot was to intimidate Miami-Dade County election officials and thereby prevent them from concluding their recount in time to get the results officially certified. That goal appears to have been successful, as the Miami-Dade County recount officially ceased on November 22.

In the long run it does not appear that the episode had any effect on the final results, as the Florida Supreme Court later ordered the partial results of the Miami-Dade County recount to be added to the official vote count and that the counting be resumed as part of a state-wide total hand recount effort. The counting then was stopped a couple days later by order of the U.S. Supreme Court. Nonetheless, this episode is worth recounting as an example of the violent extent to which some will go to win an election.

According to Democratic County Chairman Joe Geller:


The New York Times reported:



Florida Supreme Court Decision – December 8

Following a series of bitter legal challenges, hand recounts initiated in four Democratic counties selected by Gore, failure to meet recount mandated deadlines, stops and starts in the various county recounts, and the waxing and waning of Bush’s lead as recount results came in, Florida Republican Secretary of State Katherine Harris certified Bush as the winner of the Florida election on November 26. On December 4, the Leon County Circuit Court ruled against Gore’s contest of the election results, thus upholding Secretary Harris’s certification of Bush as the winner. Gore immediately appealed that ruling to the Florida Supreme Court.

On December 8, the Florida Supreme Court ruled in favor of Gore by a 4-3 margin, totally repudiating the Leon County Circuit Court’s ruling. They ordered not just a review of the ballots that the Gore team requested, but a recount of all of the undervotes in Florida that had not been previously recounted by hand. The majority ruled:


The Court also ruled that the results of the Palm Beach County hand recount and the partial Miami-Dade recount, both which had been rejected by Secretary Harris for being late, be added to the official record – thus dwindling the Bush lead to a little over 100 votes. As the statewide recount began, it appeared that Gore would win.


None Dare Call it Treason – The awarding of the Presidency to George W. Bush by the U.S. Supreme Court

On December 12, four days after the Florida Supreme Court had ordered the hand recounting of the 2000 Presidential election by all of Florida, the U.S. Supreme Court, in their Bush v. Gore decision, by a vote of 5-4 ordered the vote counting to cease, thereby awarding the U.S. Presidency to George W. Bush. Many constitutional scholars consider Bush v. Gore to be one of the three worst U.S. Supreme Court decisions in U.S. history.

In his article, “None Dare Call it Treason”, Vincent Bugliosi (best known for his successful prosecution of Charles Manson before he wrote his expose on the Bush v. Gore decision) goes a little further, as the title of his article implies. His bottom line point is that the Court, in rendering their decision, acted as a surrogate of the Republican Party, rather than as arbiters of the law, as they are required to do. I believe his reasoning is quite sound.

His first point is that only grounds on which the Supreme Court was justified in even hearing the case would be to prevent the petitioner (Bush) from being harmed. Yet the only harm that could accrue to Bush from a full counting of the votes would be that he would lose an election – if Gore received more votes than him.

The first argument that the Supreme Court used to justify their decision to stop the vote counting was based on the Equal Protection Clause of the 14th Amendment. They argued that since different interpretive standards were used in different counties to count the undervotes, equal protection was not provided to voters from different counties. So their solution was to not allow any of the hand counted undervotes to count. That decision was absolutely bizarre on several levels. First, every state, and most counties within every state use different methods of voting, which impinge on election results. By the reasoning of the Court, the whole Presidential election would have had to have been invalidated on that basis. Furthermore, how are the voters protected by having their votes not count at all? Yet the Court argued that their decision was meant to preserve the “fundamental right” to vote. And their decision was tragically ironic because the 14th Amendment was initially passed to protect minorities, and yet it was largely minority voters who were disenfranchised by their decision. Bugliosi notes that the real violation of the Equal Protection Clause was the Supreme Court’s decision to stop the vote counting. Thus Bugliosi concludes (correctly in my opinion) that:


Bugliosi marshaled several other lines of evidence, which I won’t go into, to prove that there was no legal foundation on which the decision was rendered. He provides his final argument by first noting that decisions by high courts are supposed to stand for legal principles, yet the Court’s majority gives plenty of evidence that they knew that their decision did not stand for any legal principle. Based on their decision, all future national elections could easily be invalidated on the same grounds that the Court invalidated this one, since every state and most counties within states use different equipment and voting machines in their elections. So, to get around that problem, the Court majority wrote that their ruling was “Limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”. Bugliosi comments on this:


Another way of putting this is that the majority justices said that their decision should definitely not be used as a precedent for any future cases – an unprecedented statement in the annals of U.S. Supreme Court history. Bugliosi concludes with the consequences of the decision:


John Paul Stevens, one of the four dissenting judges in the case, was slightly more cautious than Bugliosi in his criticism of the decision. Stevens was a life long Republican, appointed by Richard Nixon to the U.S. Court of Appeals in 1970 and nominated to the U.S. Supreme Court by Gerald Ford in 1975. Sevens’ 7-page dissent may be unprecedented as a scathing indictment of his fellow justices in the annals of U.S. Supreme Court history. At the end of his opinion, Stevens writes, after noting that the majority decision represented an assault on Florida election law caused by an utter lack of confidence in the Florida judges who ordered the recount:



My next post will complete my coverage of the 2000 Presidential election in Florida. In that post I’ll discuss: 1) the Florida voter purge prior to the election; 2) how the Miami Herald spun the results of its own recount to make it appear that Bush won the election anyhow, and: 3) a summary of the many ways in which Al Gore was cheated out of the presidency in Florida.