Cover Story

Broward Ball

After striking out on three pitches-the original vote tabulation, the machine recount, and the hand recount-Al Gore continues to demand additional swings

Issue: "Gore strikes out," Dec. 9, 2000

in Broward County, Fla. -Al Gore needs help from the Florida courts and the U.S. Supreme Court, and nonintervention by the Florida legislature, and (if he made it that far) the U.S. Congress. The Florida Supreme Court would have to switch its position from allowance of local discretion in vote-counting to insistence on counting votes the way officials in Broward County did. WORLD took an up-close look at how Broward's dimple standard works in practice, and how this standard could change the final score. At 7:30 p.m. on Nov. 26, George W. Bush finally won the election. Katherine Harris, the Florida Secretary of State, strode into the cabinet room in Tallahassee to certify that the Texas governor had won the state's 25 electors by a bare 537 votes out of nearly 6 million cast. As far as Florida's election canvassing board was concerned, the race was over. But eight years into the Clinton-Gore era, all the normal political rules seem made to be broken. Taking a page from the playbook of his politically defiant boss, Vice President Al Gore went before the nation the next day to announce that he refused to accept the Florida count. Instead, the vice president's lawyers filed suit in Tallahassee asking courts there to force three Democrat-leaning counties to recount their ballots yet again, using a standard almost guaranteed to manufacture hundreds of additional votes for Mr. Gore. Nearly a month after going to the polls, voters sat helplessly by as an army of lawyers asked a handful of judges to decide who the next president should be. The shift from polling booth to courtroom was unprecedented: Never before has a presidential election been decided by the judicial branch. The Republican side had also stepped up to the judicial bar. On Nov. 24, the U.S. Supreme Court stunned most legal observers by announcing that it would hear a Bush challenge seeking to bar all hand recounts in Florida. Lawyers on both sides scrambled to file briefs and prepare for oral arguments to meet the high court's Dec. 1 schedule. Through it all, Mr. Bush stressed again and again that he had won the election-again and again. Ahead on election night, ahead after a statewide mechanical recount, and ahead after a grueling hand recount in several counties, the Bush team argued that their man was the rightful occupant of the Oval Office. Following the certification in Florida, that argument seemed to be gaining traction. An ABC News-Washington Post poll found that 60 percent of Americans thought Mr. Gore should concede, while only 35 percent wanted him to keep fighting. (About 40 percent thought Mr. Gore should concede because the count was "fair," while another 20 percent wanted a concession just "to get this over with.") But Mr. Gore himself, for once, was in no mood to listen to the polls. After a carefully staged conference call with Democratic congressional leaders, the vice president took to the airwaves for a five-minute, prime-time address to the nation. "This is America," he insisted as flashbulbs popped. "When votes are cast, we count them. We don't arbitrarily set them aside because it's too difficult to count them." While Mr. Gore struggled to make his case to the public, his lawyers were already pressing their legal case. Less than 24 hours after the state's electoral vote was certified for Mr. Bush, David Boies, a Gore attorney, was arguing in circuit court that the certified vote should be overturned. The Democrats' suit contested the vote totals in three counties where full hand recounts were not certified. Using recount totals-even partial recount totals-Democrats argued, would have brought the candidates within 100 votes of each other. And if a stack of "questionable" Bush ballots from absentee voters were disqualified, the vice president would actually have won the popular vote in Florida. He still would win, Mr. Gore believes, if certified results were thrown out in three counties:

  • Nassau. A small county in the extreme northeast corner of the state, Nassau certified its election-night results rather than a mechanical recount. County officials explained that the recount had turned up 218 fewer votes than the original count, though they could not explain why. Rather than potentially "disenfranchising" 218 voters, they decided to go with the earlier, larger number, which resulted in a net gain of 51 votes for Mr. Bush.
  • Palm Beach. Democrats didn't like the standard used in assessing dimpled ballots. The members of the canvassing board-all Democrats, themselves-required at least a partial punch in order for a vote to count. Many ballots were dimpled on the presidential line but punched through everywhere else. Canvassers rejected those ballots, saying they could not divine a voter's intent in such cases. Palm Beach also faxed two sets of returns to Katherine Harris when it failed to meet the Sunday deadline: One set contained returns from the mechanical recount, while the second set reported in-progress totals from the hand recount. Because Florida law includes no provision for incomplete returns, Ms. Harris certified the earlier figure-a move that cost Mr. Gore an additional 180 votes.
  • Miami-Dade. The largest county in the state halted its hand count altogether after determining it could not meet the deadline set by the Florida Supreme Court. That left some 10,000 contested ballots in the "undecided" pile. In addition, the 157 votes that Mr. Gore picked up in a sample hand count were left out of the certified results because David Leahy, Miami-Dade's supervisor of elections, said the sample was drawn from heavily Democratic districts that might not be representative of the rest of the county, which voted only narrowly for Mr. Gore. If the U.S. Supreme Court disagrees with the Bush argument that the Florida Supreme Court overstepped its bounds by rewriting Florida election law, and if the Gore team prevails in state courts, and if the Florida legislature does not intercede, Palm Beach and Miami-Dade could be forced to recount their votes yet again, this time using the standard established by Broward County, and those votes could be decisive. Republicans shudder at the thought, and with good reason: Mr. Bush's 930-vote lead was cut by more than half as three members of the county canvassing board sifted through 2,422 disputed ballots in a three-day test of stamina, eyesight, and mind-reading. It began on Thanksgiving morning, when the canvassing board sat down to six boxes of carefully sorted cardboard punch cards in room 6780 of the Broward County Courthouse. All of the county's 588,324 ballots had already been counted twice by machine and once by hand. The six boxes in the courthouse contained only the disputed ballots that required a final, authoritative call by the canvassing board. The board started slowly, disposing of only 200 ballots before an assistant arrived with Thanksgiving dinner-24 pies from Two Guys Pizza ("The best pizza south of Coney Island"). After lunch, the counting-and bickering-began again. Four hours into the process, the members of the canvassing board still weren't sure what they were looking for on the disputed ballots. Judge Robert Rosenberg, the lone Republican on the panel, announced for the record that he doubted the board could accurately divine the voters' intent. "The pattern may be misleading to us because of the nature of the county," he said, explaining that voters in a Democratic county would typically vote Democratic down-ballot, on races closer to home, but not necessarily in the presidential race. Robert W. Lee, a Democrat-appointed judge and chairman of the canvassing board, replied that such a voting pattern "is some evidence of their intent, though it's not conclusive." He said the board was within its rights to weigh party preference in other races to determine whom the voter intended to select on the presidential line. But Mr. Rosenberg wasn't finished. He pointed out that many voters were successfully punching out the chad on other races, but leaving only a dimple by their presidential choice. "That's part of a pattern, too," he argued. If a voter was strong enough to punch through the ballot on every other race, then maybe the dimpled mark on the presidential line resulted from a second thought rather than an oversight. "We're putting weight on one pattern, but maybe not as much on another pattern," he concluded. The debate ended with an awkward silence and shrugs all around. "Next ballot," Judge Lee announced, reaching into the box in front of him. There was little choice but to soldier on; the state Supreme Court had given them a deadline, but no guidelines. So, for the next three days, the canvassers toiled under their own, self-imposed guidelines. Judge Rosenberg used a stricter standard, awarding a vote only if a chad was punched at least partially through, or if a ballot showed a clear pattern of party voting along with dimpled marks on more than just the presidential line. On the left from the press vantage point was Suzanne Gunzburger, a county commissioner with a long career in local Democratic politics. She repeatedly voted to award votes to Mr. Gore if there was even the slightest dimple in position no. 3, and even if the remainder of the ballot was punched completely through with perfect regularity. Throughout the entire ordeal, her lawyer was at her side, examining every ballot and often whispering into her ear before she announced her decision. Somewhere in the middle was Judge Lee, who said he was looking for multiple patterns on the ballots. When Mr. Rosenberg and Ms. Gunzburger split, it was Mr. Lee who cast the deciding vote. And so, thousands of times over the course of three days, the same script played itself out with only minor variations. Mr. Rosenberg: "No reasonable certainty." Ms. Gunzburger: "The clear intent of the voter was to vote for Gore." Mr. Lee: "I agree with the commissioner. Ballot [x] is a vote for Gore." Or, "I agree with the judge; no vote." The script became predictable enough that any significant departure rocked the courtroom. On one ballot, both Ms. Gunzburger and Mr. Rosenberg saw a Bush vote, while Mr. Lee, in the minority, thought it was undecided. An observer clapped in amazement. At another point, Mr. Rosenberg studied a ballot and awarded it to Gore. "I agree," said Ms. Gunzburger, "it's a no-vote." Mr. Lee did a pronounced double-take. "Judge Rosenberg said it was a Gore vote," he prompted his Democratic colleague. "Oh, did he?" an embarrassed Ms. Gunzburger replied. "I forgot to look at the back." She flipped the card over and concluded: "Gore vote." The courtroom erupted in laughter-and groans from the Bush observers. Moments like that were few and far between, however. With a court-imposed deadline looming, the canvassers worked methodically through the ballots, each following some internal compass toward the ill-defined goal of "the will of the voter." Ms. Gunzburger clearly enjoyed the greatest leeway in blazing her own trail: As a Democratic elected official in a heavily Democratic county, she could hardly be too partisan for her own political good. For the two judges, the recount was more of a political minefield. "Everybody is aware that being a judge is a political situation," said McCarthy Crenshaw Jr., a judge on Florida's 4th Circuit Court. "[Judges] know that the only way they got there was that somebody with political pull either wrote letters for them or contributed to their campaign account." That's because judges are usually appointed by the governor to fill someone else's unfinished term, but then must stand for reelection on their own every six years. In south Florida, in particular, reelection is far from certain: "Everywhere except Dade and Broward [counties], judges are rarely opposed," Mr. Crenshaw explained. "In Dade and Broward, it seems like there's always somebody running against them, so the guys in south Florida are very aware that they've got to face the voters." Judges who develop a reputation for partisanship also can earn unfavorable ratings from the local bar association-a factor that could prevent them from winning appointment to a higher bench. The combination of conflicting political pressures, uncertain guidelines, and sheer physical exhaustion led to frayed nerves and steady bickering inside the courtroom. Yet somehow, shortly before midnight on Saturday, the board finished its manual recount-the only county to do so before the deadline. "I tried to do the right thing," Ms. Gunzburger said when it was finally over. "Everybody can see what they want to see. But I would say 90 percent of [the board's] decisions were made unanimously." Not quite. During two-hour periods chosen at random on Friday and Saturday, WORLD calculated the voting patterns on every ballot under review. On Friday, the board members split one-third of the time. On Saturday, the percentage was closer to one-quarter. With more than 2,000 ballots in dispute, even the smaller figure yields more than 500 additional votes that would have shifted one way or the other. In an election as close as this one, those votes alone could change the outcome: Two Democrats in a single county could literally put the next president in the White House. Despite the demonstrably arbitrary nature of the hand recount process, Mr. Gore's lawyers are now pressing in court for more counties to follow Broward's lead. "We think they did it right in Broward," said Charles Lichtman, a lawyer for the Democratic Party who observed the entire process. "It wasn't so much that Lee or anyone else was partisan. We think they just think they followed the law." The Bush camp drew just the opposite conclusion from what happened in Broward. "Like we've been saying all along, the hand recount process is inaccurate," Mindy Tucker, a Bush spokeswoman, told WORLD. "There is no standard, or if there is one, it keeps changing." Exhausted canvassers in Broward County were glad to get their lives back on Sunday. But the end of the recount was not the end of the controversy. Armed with videotapes and statistics from Ft. Lauderdale, Bush lawyers will argue in court that far from being an example for other counties to follow, the Broward recount was a political travesty that must never be allowed to happen again.

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