Going into oral arguments before the U.S. Supreme Court Monday, attorneys for Gov. George W. Bush have argued that the manual recount ordered Friday by the Florida Supreme Court was unconstitutional because there was no uniform statewide standard for judging ballots. As spelled out in its brief to the court, Bush's legal team stressed, "The new set of manual recount procedures concocted by the Florida Supreme Court is arbitrary, standardless, and subjective, and will necessarily vary in application in violation of Equal Protection and Due Process Clauses of the Fourteenth Amendment."
Yet Bush's slim lead of less than 200 votes -- down from 537 before Friday's ruling -- stands precisely because a handful of sympathetic county canvassing boards in late November used an arbitrary, standardless procedure to quietly boost Bush's total by reinstating some invalid overseas military ballots. Not only did the boards clearly change the rules in the middle of the game -- something else the Republicans have repeatedly accused the Florida Supreme Court of doing -- but they created a hodgepodge of new standards, some of dubious legitimacy. These included accepting ballots postmarked after Nov. 7 as well as ballots faxed to county election offices. Both instances violate Florida election law.
"It was anything goes," says Mike Langton, chairman of Gore's northeast Florida campaign. "Should those ballots have counted? Probably not."
When the recounting of military ballots previously rejected was completed, Bush picked up a net gain of 115 questionable votes; votes that by the Bush team's logic in other contexts should not be valid. Without them, Bush's lead would shrink to 39 votes -- or 78, depending upon a final determination of which of two disputed tallies from Palm Beach County to include. Meanwhile, according to the Associated Press, Vice President Al Gore picked up a net gain of 16 votes during the aborted hand recount on Saturday, which means that -- as the Supreme Court ponders the fate of the election -- observers could argue Bush's lead is just 23 votes (or 62) out of more than 6 million cast in Florida.
County officials in Florida accept overseas ballots until 10 days after the election. This year, when they were tallied on Nov. 17, Bush won 1,380 of those votes, while Gore picked up 750 -- a net gain of 630 for Bush. At the time it stretched Bush's lead from 300 to 930, which was the tally certified on Nov. 18 by Florida Secretary of State Katherine Harris.
Still, more than 1,500 overseas ballots were rejected by canvassing boards for not including pertinent information, such as an overseas postmark, a date, a witness signature or confirmation in county files that the voter had requested an overseas ballot. Under Florida law, which recently tightened standards to prevent fraud, those types of ballots are invalid.
Upset at the high number of rejects, Republicans launched an offensive, complaining that Democrats harped on technicalities to get the traditionally pro-Republican military ballots tossed out. "No one who aspires to be commander in chief should seek to unfairly deny the votes of the men and women he would seek to command," charged Bush spokeswoman Karen Hughes in one of many salvos of the highly effective public relations campaign.
Two days later, in an effort to diffuse the controversy, Florida Attorney General Bob Butterworth, a key Gore ally, suggested in a non-binding letter to county election officials that they reconsider the rejected ballots. "No man or woman in military service to this nation should have his or her vote rejected solely due to the absence of a postmark," wrote Butterworth.
In an interesting bit of politicking, Butterworth in his letter told county election supervisors that in order to amend their election tallies they needed to get permission from Florida's secretary of state. At the time, of course, Bush ally Harris was on the record opposing any changes in the Election Day totals -- such as including hand counts from three Democratic-leaning counties -- after the deadlines outlined in the state's statutes.
University of Miami law professor and election expert Terence Anderson says there are compelling reasons to count ballots that were "sent through a military facility without a postmark that seem certain to have been signed and marked prior to Nov. 7." For instance, he says, if a military ballot arrived at an election office on Nov. 10 and was mailed from the Middle East, obviously it was sent before Nov. 7. But Anderson also raises questions about military ballots arriving from other regions. What about one from England with no date that arrived in Florida on the overseas ballot deadline of Nov. 17? Could that have really been filled out and mailed on or before Nov. 7?
The day after Butterworth released his letter the point became moot, however, when the Florida Supreme Court ruled those hand counts could go forward and Harris had to accept them. "The will of the people, not hyper-technical reliance upon statutory provisions, should be our guiding principal," wrote the justices.
One unintended consequence of the Gore win at the Florida Supreme Court was that counties were suddenly free to adjust their tallies to include overseas ballots. To press that point, the Bush team filed a lawsuit demanding that 14 counties do just that. Hearing the case, Florida Circuit Judge Ralph Smith appeared skeptical, telling Bush lawyers, "Without any proof that any of these canvassing boards have not complied with the law, the court is very hard-pressed to grant any relief, because the court just doesn't enter orders telling elected officials to comply with the law."
No matter. Spurred by Butterworth's letter, as well as the state's Supreme Court ruling waiving "hyper-technical" requirements, 11 county canvassing boards reconvened and began sifting through previously rejected overseas ballots. And just as in the debate over dimpled ballots and the lack of uniform standards for what constitutes a vote, it became clear that the criteria for judging overseas ballots varied wildly from county to county, with some using almost no standard at all. Then, on Nov. 25, with Smith set to issue a ruling widely expected to reject the Bush team's arguments, the Republicans dropped their lawsuit, saying they were happy with the cooperation they received from most of the counties.
In Clay County for instance, ballots with no witness signatures were accepted, as well as ones without signatures across the seal of the envelope. Two faxed-in ballots -- albeit ones that arrived by Nov. 7 -- were even added to Bush's tally. "That's not the normal protocol," says Stephanie Thomas, assistant supervisor of elections in Clay County. "The law is you don't count faxes. But it was up to the canvassing board, and it was their determination to accept them."
Contrary to Florida law, Collier County accepted overseas ballots that were not signed, dated or postmarked. Escambia County accepted some overseas ballots clearly postmarked after Election Day. So did Santa Rosa County, which also counted five ballots that arrived after the 10-day post-election window allowed by the state for overseas ballots. It also accepted ballots arriving after Nov. 7 that carried a U.S., not an overseas, postmark -- even though all absentee ballots mailed from within the U.S. are supposed to arrive by Election Day. Meanwhile, Pasco County waived the state law requiring that an absentee ballot only be counted if there is a request for it on file.
Nonetheless, lawyers representing Gore, caught in a public relations quandary, did not contest the recounted military ballots in court. "Democrats couldn't really object to those while at the same time arguing every vote should count," says Chris Nuland, a Democratic attorney in Florida working with the Gore campaign. However, should the U.S. Supreme Court unexpectedly allow some sort of hand recounts to resume, those questionable 115 votes could determine the outcome.