Counting The Vote

The lasting legacy of Florida’s 2000 presidential election.

By Lindy McCollum-Brounley

Bitter words from Al Gore, a man who  should know. Gore, who won the majority of the nation’s popular vote in the 2000 presidential election, ultimately conceded Florida’s 25 electoral votes — and the White House — to George W. Bush after a landmark decision by the U.S. Supreme Court to end Florida’s vote recount. The final margin of victory for Bush in Florida consisted of 537 votes, .0002 percent of the state’s nearly 6 million certified ballots.

“What happened in 2000 is exactly what everyone feared, that it would go down to a few thousand votes or less,” said Stephen N. Zack (JD 71), one of the attorneys representing Gore following the election and a partner in the Miami firm Boies, Schiller & Flexner. “I think one thing important to look at from a historical perspective is that there is virtually no election that is free of problems. What usually occurs is that the margins are so large that those problems do not become significant.But when you have a very narrow margin, they become very, very significant, and that’s what happened in Florida in 2000.”

Florida’s 2000 presidential election was initially called in favor of Bush by 1,784 votes. This tiny margin of victory triggered statutorily-mandated machine recounts of ballots in all 67 Florida counties, the results of which narrowed the margin to a Bush lead of little more than 300 votes. Bush’s tenuous majority, coupled with voter complaints of confusing butterfly ballots and malfunctioning voting machines in several counties, compelled Gore, as he was entitled to do under Florida law, to protest the results in Broward, Dade, Palm Beach and Volusia counties. He pressed for recounts in those counties of “undervotes” — ballots that did not show a valid legal selection during machine counting, but which might demonstrate voter intent when examined manually.

Gore’s decision to ask for manual recounts in these heavily Democratic counties, which many critics described as “strategic cherry-picking” of votes, kicked up a legal scrum of epic proportions. After weeks of litigation in Florida’s courts, examination of thousands of ballots with chads in various states of detachment, and media attention that characterized Florida’s election and state politics as national jokes, the U.S. Supreme Court intervened with a judgment — one likely to be argued in law schools and living rooms for generations — that effectively ended the spectacle.

“There can be no doubt that a majority of Americans voted for Al Gore to be president of the United States — that more people voted for Al Gore, or thought they were voting for Al Gore, than for George Bush,” said Zack, who is slated to be the next president-elect of the American Bar Association. “It definitely indicates that elections are subject to human variables, and in a contested election that is razor thin, those human errors are going to cause problems.”

‘FLORIDA CAN’T COUNT’

Many people are still confused by  the series of events leading up to the  U.S. Supreme Court’s intervention in Florida’s recount of the 2000 presidential election. By the time the nation’s highest court ended the litigation on Dec. 12, the battle had been raging in Florida for 36 days and a dizzying number of suits and countersuits had made the rounds through Florida and federal courts. The

country was obsessed with hanging chads, but Florida law did little to shed light on how to discern the voter intent they might reveal.

“We’d tended to overlook the importance of elections until the 2000 presidential election, in which we realized we were using outdated equipment, machines and so on, particularly in the large populated counties,” said W. Dexter Douglass (LLB 55), Gore’s lead Florida counsel and long-time state politico who previously served as general counsel for Gov. Lawton Chiles and chair of the Florida Constitution Revision Commission. “The combination of antiquated voting systems and antiquated voting laws put us in a position when we became pivotal to the election to cause the court proceedings that followed.”

The first case that made its way to  the U.S. Supreme Court involved the Florida Supreme Court’s ruling in favor of Gore’s protest of the vote count in Broward, Palm Beach and Volusia counties. Central to the question was the statutory deadline, set by section 102.111 of Florida law, for counties to certify their election returns no later than seven days after the election. Several of the counties conducting manual recounts were unsure they could complete the recounts in time to certify their returns by the deadline. Although the deadline was ruled to be immutable by a Florida Circuit Court, the court also ruled the counties conducting manual recounts could amend their returns later and that Secretary of State Katherine Harris, the state’s chief election officer, had the discretion to accept those amendments after the deadline.

Nonetheless, at the close of business hours on Nov. 14, Harris announced she was in receipt of certified returns from all 67 counties, although three were still conducting manual recounts. She also released criteria by which she would accept amended filings and required those counties intending to make one to submit a written statement outlining the  circumstances compelling them to do so.
Broward, Dade, Palm Beach and Volusia counties submitted written statements, but Harris determined none of them warranted an extension of the deadline.
She certified the election on Nov. 18.

The Gore legal team immediately protested in Florida courts, a move Douglass advised against.

“My suggestion early on was that they should allow the secretary of state to certify the election and then contest it. Instead of choosing a recount, you could choose a contest statute, which would immediately place the question of a statewide recount under the jurisdiction of the courts,” said Douglass. “But Klain [Gore Chief of Staff Ron Klain] and others said, ‘Well, it had already been determined that we would go with recounts in these four counties.’ ”

Despite Douglass’ recommendation, Gore directed his legal team to pursue extending the certification deadline to allow the counties to complete their recounts. This litigation would later prove to run the clock out on Gore’s future contest of the vote.

“Had they allowed me to certify on time, there would have been time for the statewide recount,” Katherine Harris stated in a June 2, 2008, interview on FOX News Channel’s Hannity & Colmes. “His [Gore’s] political team was concerned that… would harm him politically. So he listened to his political advisers instead of Dexter Douglass, his Florida counsel, who said that, indeed, I should certify in the time according to the will of the law as the law was written.”

The case, the first Gore v. Harris, eventually arrived on the docket of the Florida Supreme Court, which ruled on Nov. 21 that the recount would take place, that amended returns must be accepted from the counties that were party to the case, and that Harris could not certify the election until Nov. 26.

“We made a statutory construction analysis of the law, and we found there were ambiguities in the statute which required there to be a construction that would permit the intent of the statute to be carried out,” said Florida Supreme Court Justice Charles T. Wells (JD 64), who was chief justice at the time.The ruling was appealed to the U.S. Supreme Court in Bush v. Palm Beach County Canvassing Board. The Supreme Court remanded it back to the Florida Supreme Court on Dec. 4 with a request for an explanation of how it reached its ruling.

“The United States Supreme Court made a determination that it was not a matter of statutory construction under state law, but that the federal scheme for electing presidential electors gave to the Legislature plenary power to make the determination as to how the selection of electors was going to be done,” said Wells. “They remanded the case to us, saying that they did not understand the basis upon which we reached the decision to extend the time for the certification.”

Meanwhile, Harris, pursuant to the Florida Supreme Court’s order in Gore v. Harris, certified the election results on Nov. 26 in which Bush was the victor with a lead of 537 votes. Gore’s team then filed a petition contesting the election, the second Gore v. Harris. The case moved through circuit and district courts to the Florida Supreme Court, which ruled on Dec. 8 that a statewide recount would proceed with a deadline for completion of Dec. 12. That date was the federal “safe-haven” deadline for states to appoint its electors before the Electoral College’s federally mandated Dec. 18 meeting.

The second Gore v. Harris ruling allowed for a statewide hand recount of undervotes, but it did not include “overvotes” — votes where selections for president were clearly indicated, but which also included the candidate’s name handwritten on the ballot. Neither state law nor the court provided uniform standards for how to conduct the recount. Instead, each county’s canvassing board would use its own standards.

“In the first case, the case involving the protest in the certification to the secretary of state, we had been unanimous. In the second case, we were not,” said Wells. “I wrote in my dissent that I felt like the majority’s decision created a basketful of practical problems. The statute didn’t provide any standards for making a determination of voter intent that, at that point, our court was requiring to be done statewide. Again, those questions seem to me to have been a difficulty of the elections statutes, which really just didn’t address them.”

SUPREMELY CONTROVERSIAL
Bush asked the U.S. Supreme Court to intervene, which it did on Dec. 9 when it issued a writ of certiorari for Bush v. Gore and enjoined Florida’s recount.

“In the case of the second lawsuit, there were a couple of federal questions involved,” said Clifford Jones, associate in law and lecturer at the University of Florida Levin College of Law’s Center for Governmental Responsibility. “One of them had to do with whether or not the process of counting votes and recounting votes satisfied the constitutional protections of equal protection and due process. A secondary issue, which was related to the fi rst appeal, was whether or not what the Florida court did was interfering with the constitutional direction that the electors for president be selected by direction of the Legislature as opposed to by direction of the courts.”

The court issued a per curiam opinion that the Florida court ruling was in violation of the Equal Protection Clause of the 14th Amendment because there was no standard by which all 67 counties could conduct the ballot recount. The opinion stated that it applied only to the specific circumstances of Bush v. Gore, and should not be considered precedential because “the problem of equal protection in election processes generally presents many complexities.” In addition, a majority of the court agreed that no constitutionally valid recount could be conducted in time to meet the federal safe haven deadline of Dec. 12. The court was divided as to whether the Florida Supreme Court’s statutory construction to allow a recount after the state’s Nov. 14 certifi cation deadline was in violation of Article II.

“Frankly, the most controversial aspect of the Supreme Court’s decision was to stop the recount, as opposed to merely remanding it for further proceedings in the court below,” said Jones. “I think the court did that because they considered that the Florida Supreme Court had indicated intent to rely on the safe harbor provision of the federal statute.”

The Supreme Court issued its opinions on Dec. 12. The controversial decision left Gore little time for further action and he soon conceded the election.

Legal scholar Cass Sunstein later wrote, “For those who believe in the rule of law, it is more than disturbing to find that by far the best predictor of one’s attitude toward Bush v. Gore. …  it is extremely disturbing to find that on the highly technical, even esoteric issues involved in the case, the attitudes of so many specialists — including journalists who follow the court, political scientists, historians, law professors and even judges — seem determined, almost all of the time, by their political preferences.”

Nonetheless, Americans, despite their political preferences, accepted the high court’s decision as final and got on with business as usual.

“Everyone believed this would resolve itself and a lot of people believed, at the end of the day, the Electoral College would step in as it is designed to do if necessary,” said Zack. “I’ve recently spoken at law schools in China, Russia and Poland, and this was a common question. My unequivocal answer was that we as a people are fully committed to the constitutional electoral process and, at all times, were going to turn to our lawyers and not to our generals.”

That reliance on the law hasn’t squelched cynical speculation by some that partisan fervor motivated decisions made by both the Florida Supreme Court and the U.S. Supreme Court. Yet the truth of the matter may have been in plain sight all along.

“The [Florida] election laws really were not designed in such a way that fit a presidential election where the margin of victory was within the margin of error. The courts were trying to deal in a very short time span with the proverbial square peg in a round hole. It just was not something that could be dealt with in a very satisfactory way,” said Wells. “What I have said, and what I truly believe, is this was the election of the president of the United States, and no matter what the legal avenues or approaches were for the United States Supreme Court to get to it, it still was necessary for the United States Supreme Court to have the final say.”

ELECTION REFORM, FLORIDA-STYLE
Florida is no stranger to presidential election problems. Few are aware that the congressional Electoral Count Act of 1877 — which, ironically, established the Dec. 12 safe haven deadline driving litigation in Florida’s 2000 presidential election — was enacted in part as a result of Florida’s disputed 1876 presidential election between Rutherford B. Hayes and Samuel J. Tilden. The scandal of that election involved alleged ballot box stuffing and suppression of Republican voters, mostly freed slaves.

With Florida’s 27 electoral votes up for grabs and tight margins reported in advance of the 2008 election between John McCain and Barack Obama, many worried the state could again experience chaos. This election went smoothly, for the most part, despite heavy voter turnout — 73 percent of the state’s registered voters, nearly 8.2 million Floridians, voted (4.3 million of those during early voting).

“The 2000 situation was unique in history,” said Jon Mills, a UF professor of law, dean emeritus, and director of the Levin College of Law Center for Governmental Responsibility (which sponsored a post-election conference at the Levin College of Law featuring the principals of the court cases, including

David Boies, Douglass, Zack and counsels for Harris). “Since 2000, there have been a series of statutory responses that, if there was a recount, would make it much more streamlined, standardized and easier to conduct.”

After the embarrassment of its 2000 presidential election experience, the state passed the Florida Election Reform Act of 2001, directly addressing inadequacies in state law regarding voting and tabulation problems. The act outlawed the venerable computer punch card machines as well as lever and manual paper voting systems — effectively banishing the hanging chad to history. Instead, the act recommended electronic voting systems, and mandated all voting systems must be certified by the secretary of state before the canvassing boards can use them.

Initially, both optical-scan and ATM-style touchscreen systems replaced the old voting machines. Concerns that the touchscreen system was vulnerable to software glitches or hacking, combined with the lack of a paper trail for ballot recounts, led Gov. Charlie Crist to ban its use in 2007 after the machine recorded 18,000 undervotes in a hotly contested 2006 Sarasota County congressional race. Optical-scan machines, which tabulate the vote electronically but provide a paper record of each vote, are now the standard in use statewide. The optical-scan machines also alert voters if they have recorded over-or undervotes as the ballot is scanned, giving the voter opportunity to correct his or her ballot before leaving the polling place.

The Florida Election Reform Act also implemented more uniform ballot design, and instructed the secretary of state’s office to standardize interpretation of ballot marks and mismarks to determine “clear indication that the voter has made a definite choice” in the event manual recounts are necessary. The standards adopted into the Florida Administrative Code were written using ballots cast in the 2000 election as examples to assist in identifying common mismarking problems, resulting in clear guidelines to interpret virtually any mark on a ballot as a valid or invalid vote.

Lastly, the act removed vote recounts from the discretion of the county canvassing boards and no longer allows a candidate to protest votes in specific counties. As the law stands now, an automatic statewide machine recount is triggered if unofficial returns for presidential elections indicate a margin of victory less than one-half of 1 percent of the vote. If the machine recount shows a difference of less than one-quarter of 1 percent in the margin of victory, a statewide manual recount must take place of both under- and overvotes, unless the combined total of those ballots is less than the number of votes necessary to change the outcome of the election.

“The new standards and voting system make the election more uniform and provide tangible evidence for review if a recount does arise. So, Florida is much better off than we were in 2000 or even 2004,” said Mills. “But, that doesn’t mean it’s perfect.”

This year, Florida’s election was a fairly uneventful mega-event. Despite long waits to vote at some polling places and occasional malfunctioning machines, the votes of more than 8 million Floridians were cast and counted — with little post-election drama. If a recount had been necessary, new laws are in place to standardize the process that would, hopefully, quarantine the controversy within the bounds of Floridian’s courts.

Florida has come a long way since its 2000 presidential election, and one might now offer it as a model of how to run a smooth election in a big, hotly-contested swing state … As long as the margins aren’t razor-thin.