In the heat of last fall's historic post-election presidential campaign, when advocates for Al Gore and George W. Bush were navigating the swampy world of Florida election law, some of the ugliest wrangling -- and some of the most legally debatable maneuvering on both sides -- centered on the counting of overseas absentee ballots.
According to a knowledgeable Republican operative, the Bush camp even discussed a strategy that, if implemented, would have broken the law: organizing a post-election get-out-the-vote drive among overseas military personnel who had registered to vote but had not cast ballots by Election Day.
Bush officials did not return calls seeking comment on the report. But according to the knowledgeable GOP source, on Saturday, Nov. 11, Bush's political team held a 60- to 90-minute conference call for campaign operatives scattered throughout Florida. In the course of the discussion, they discussed having political operatives near overseas military bases encourage soldiers who had registered to vote -- but never did -- to fill out their ballots and send them in, more than four days after the voting deadline.
Was this plan, a blatant act of voter fraud, ever carried out? There's no concrete proof that it was, as of today -- and if it was, whoever was involved isn't talking. (Neither South Carolina-based strategist Warren Tompkins, who ran Bush's absentee ballot monitoring operation, nor Bush political director Ken Mehlman returned calls for comment.) What's not in doubt is the crucial role the overseas military ballots -- and the vicious, behind-the-scenes battle over whether to count them -- played in the outcome of the Florida vote and, ultimately, the election.
Before the election, 23,246 overseas ballots were mailed out from the state of Florida, and more than half of them -- 14,415 -- had come in by Election Day. As of Nov. 13, Monday, Florida's 67 counties had received 446 military overseas ballots since Nov. 8.
By Nov. 16, Thursday afternoon, that number had swelled to 2,575.
By the next day, it was 3,733.
There was certainly plenty of wrangling and duplicity on both sides when it came to the issue of overseas absentee ballots. At a time when the Gore team's mantra was "Count every vote," for instance, its attorneys were trying to disqualify any ballot cast by overseas military personnel that was even remotely questionable. And the Bush team -- worried about whether it would be hurt by the overseas absentee ballots, thanks to the high numbers of voters in Israel who might be energized by Joe Lieberman's presence on the ticket -- at first focused on trying to scope out and prevent possible voter fraud by the absentees. Gore-Lieberman garnered 80 percent of the Jewish vote Nov. 7, and estimates held that about 4,000 Florida Jews might be expected to cast absentee ballots from the land of milk and honey.
It was clear to strategists on both sides, within days after Nov. 7, that they needed to supplement their focus on hand recounts with a side strategy on the overseas absentee ballots, which were due Friday, Nov. 17. The Bush team turned to Warren Tompkins -- who had helmed Bush's nasty South Carolina primary campaign against Arizona Sen. John McCain -- to coordinate its strategy. Days after the election, he put together a spreadsheet on the overseas absentee ballots, what had come in already, what had been counted, how many had been requested, how many were still expected in and so on. The overseas absentee ballots were likely to go their way, Tompkins told his colleagues, but he anticipated that the Democrats wouldn't make it easy for them to be accepted, and would challenge as many as possible.
"You're kidding me," spokeswoman Mindy Tucker said. "They can't protest."
"We think they're going to," Tompkins responded.
Tucker wanted to let the press know about this at once, but she was overruled. Let's wait, she was told.
It was on Nov. 11 that the Bush political team organized a conference call to discuss its absentee ballot strategy. In those first crazy days of the post-election battle, anywhere from a dozen to 60 or so people could have been on the call.
Many matters were attended to. The group talked about finding volunteers to be observers in counties doing recounts. They talked about drumming up protesters. They talked about assigning operatives to different clerks' offices to wait for the overseas absentee ballots, and to report anything Democrats did to challenge them. And, according to a knowledgeable Republican source, in the course of this conversation the Bush team discussed having political operatives abroad encourage certain soldiers who had registered to vote -- but never did - to do so after the voting deadline.
The group discussed how to target Republicans in the drive. Voter registration files made it possible to identify which soldiers, sailors and airmen were Democrats and which were Republicans, which were black and which were white. Let's target the likely Bush supporters, one of the operatives said, according to the GOP source -- we'll get them to send their ballots in and then argue about the postmarks later. We're gonna raise a stink and force them to count these ballots. We don't know how they're gonna come in, but we need every vote we can get.
Indeed they did. Whether or not Bush supporters actually carried out the suggestion of getting military personnel to vote illegally, their focus on those ballots paid off. Bush attorney Fred Bartlit, who argued for more lenient assessments of the overseas absentee ballots on behalf of the Bush campaign, told me that he knew nothing about any attempt to obtain post-election votes. In fact, the Republican operative with information about the Nov. 11 conference call was quick to point out that not one member of the Bush legal team was on the call -- just some of the political movers.
That said, the Bush team's public strategy to deal with the overseas ballots certainly yielded results. Bartlit told me that his side's legal maneuvering -- they took 15 Florida counties to court to try to "shake out" more votes -- resulted in anywhere from 300 to 400 new overseas ballots being counted by the time Secretary of State Katherine Harris certified the election results on Nov. 26. Less anecdotally, Bush attorney Jason Unger says that 176 new net Bush votes were counted for Bush after the Bushies took the 15 counties to court.
A new 176 votes "shaken out" in this process might not sound like much until you put the number next to the lead Bush had before the U.S. Supreme Court stepped in to put an end to all the counting on Saturday, Dec. 9. That number: 154. That makes those 176 votes seem slightly more significant.
The story of the battle over the overseas absentee ballots features plenty of down-and-dirty political maneuvering on both sides. But as was the case with the entire Florida election battle, the Democrats never played hardball as well as the Republicans. On the biggest issue of all, for example -- whether and how to seek a manual recount, whether to include overvotes or just undervotes, and in which counties -- Gore made horrendous strategic and public relations decisions. He pretended his goal was counting every vote, yet his attorneys only sought recounts of undervotes in dense Democratic counties. They lost the P.R. battle because the Bush camp could rightly claim they were being hypocritical, and they lost the political battle as well, since subsequent analyses suggest that a statewide manual recount could possibly have given the edge to the former vice president.
On the overseas absentee ballot issue, it was the Democrats who were first accused of pondering an illegal post-election drive. After an obscure news item referred to a Democratic lawyer allegedly hatching such a scheme, former Florida Secretary of State Jim Smith, a Republican, was instructed to go before the cameras on Sunday, Nov. 12, and lay down the strict law of the land as it pertained to overseas absentee ballots.
"The Florida law is simple, straightforward and reason-based," Smith said. He laid out the rules: Overseas ballots must be either postmarked by Nov. 7; or signed and dated no later than Nov. 7. Those mailed from overseas also required an Army Post Office, Fleet Post Office or foreign post mark.
"It is a felony to perpetrate, attempt or aid in any fraud of any vote cast or attempted, such as backdating an absentee ballot," he said. He used the word "fraud" once, the word "felony" four times.
A reporter asked Smith: Why are you here?
"At the request of the Republican Party of Florida," he replied, citing concerns over "news reports that there has been some encouragement of some individuals overseas who may not have not cast their ballot" but were erroneously told that "even though the Nov. 7th date has passed they could still do that."
Meanwhile, over at the Democrats' post-election headquarters, attorney Mark Herron was working on the same project. Herron had no knowledge of Smith's press conference, though his understanding of the law was the same.
Herron and his law firm -- Akerman Senterfitt & Eidson -- had just parted ways. The other partners didn't want him to work for Gore, and told him that if he continued to do so he would have to leave. So he did.
Over the weekend, the Gore campaign asked Herron to look into the overseas absentee ballot issue. Back in 1980, it was clear that Florida had an inherent defect in its election system, arising from the fact that its primary elections were so late -- a September primary, then a runoff in October. How could they get the overseas ballots out when they didn't even know who was going to be on the ballot until October? The choice was either move the primaries back, or give overseas voters more time. So in 1984, the state of Florida and the federal government entered into a consent decree, which allowed these ballots to come in up to 10 days late -- as long as they were postmarked by Election Day or, if they didn't have a postmark (some letters from overseas military bases aren't postmarked), were signed and dated by Election Day.
In 1989, despite the consent decree, the Florida Legislature ruled that only ballots with postmarks could be considered valid, and Republican Smith and Democrat Herron clearly read the conflict the same way -- the 1989 law ruled supreme. Both were operating out of political interest, of course -- Smith trying to guard against invalid Gore votes, presumably from Jews in Israel, Herron against invalid Bush votes, presumably from soldiers.
It was a rare moment when the campaigns could agree. But not for long.
On Friday, Nov. 17, Bush attorney Jason Unger was only one of many attorneys hired by the state GOP to focus on the issue of military overseas absentee ballots. Working with other attorneys at his firm, Gray Harris & Robinson, Unger had prepared all week for deadline day.
Ed Fleming, a Republican attorney in Pensacola who represents Rep. Joe Scarborough, R-Fla., had been drafted by Unger to work on the project. In one of their conversations, Unger told Fleming of a rumor he'd heard that the Dems were going to go full-bore in challenging overseas military absentee ballots. On Thursday, Fleming asked a local county attorney if he'd heard anything about the rumor. Sure, the attorney told him. Got a memo right here about it, written by the Democrats. He faxed Fleming the memo. It was written by Mark Herron, outlining the Gore strategy.
Fleming passed news of the memo to Stuart Bowen, a Bush attorney from Austin who was supervising the absentee ballot effort in the Panhandle. On Friday morning, after making sure that Fleming obtained the memo legally, Bowen told him to fax the memo to Tallahassee ASAP.
At 11:42 a.m., the memo arrived in Unger's office. He showed it to Washington attorney David Aufhauser (nominated Wednesday to be general counsel for the Department of the Treasury). Within minutes, Bush campaign counsel Ben Ginsberg had it. Within seconds after that, Bush Florida recount general Jim Baker.
"This is gold," said spokeswoman Mindy Tucker, when it got around to her.
It was a P.R. jackpot -- it played into an already existing perception that the Democratic Party cared less about the military than the Republicans do. Plus there was the hypocrisy of the Gore campaign's count-every-vote rallying cry. Count every vote ... except for American soldiers?
From then on, the GOP operatives would refer only to "military ballots," not "overseas absentee ballots."
Duval County, Clay County, Escambia County, Okaloosa County -- places with the highest concentration of military voters seemed to be where the Democrats' fervor was the most heated. Gore operatives were after ballots for not having a postmark, or for having a U.S. postmark, though the military would later explain that several batches of these overseas ballots were postmarked in the U.S. after arriving from various port cities.
They were also after federal write-in ballots, which are for individuals abroad who claim that they requested an absentee ballot but never received one. Voters who used federal write-in ballots had to swear in an affidavit under penalty of perjury that they requested absentee ballots and didn't receive any, and provide all needed identification.
The Gore campaign made election supervisors check the names of these voters against their records to see if, in fact, they did request absentee ballots.
Meanwhile, a Florida GOP official, Al Austin, called up his good friend Norman Schwarzkopf to see if he knew about the Herron memo. When Schwarzkopf learned of it, the Persian Gulf War commander blew his top. But Schwarzkopf was sick with the flu, so he couldn't appear at any press event. Nevertheless, on the morning of Saturday, Nov. 18, Schwarzkopf called Tucker and dictated a statement.
"These armed forces ballots should be allowed to be tallied," Schwarzkopf said. "It is a very sad day in our country when the men and women of the armed forces are serving abroad and facing danger on a daily basis. That because of some technicality out of their control, they are denied the right to vote for the president of the United States who will be their commander in chief."
On TV Saturday, and in print on Sunday, the story erupted.
Ron Klain, head of the Gore legal team, tried to point out that the rules the Herron memo detailed were just the same rules that Jim Smith spelled out on Sunday, when the Republicans were fearful of sacks of absentee ballots coming S.W.A.K. from Tel Aviv. Klain ran over to CNN, MSNBC, Fox News Channel, distributing copies of the transcript of Smith's press conference. But not one of these media outlets mentioned Sunday's press conference by Jim Smith, and how the Bushies had shamelessly pulled a 180 on the overseas ballot issue, once it became clear that rigorous application of the law would clearly affect armed servicemen and women far more than Jews abroad in Israel.
Instead, the media's focus was on Gore's mad rush to disenfranchise American soldiers. Of the 3,733 overseas absentee ballots that had come in since Election Day, 1,527 of them had been scrapped for various irregularities.
Behind closed doors, vice presidential nominee Sen. Joe Lieberman, D-Conn., had been the most aggressive proponent of using the law any way that the Gore team could. That's what made his capitulation on the overseas absentee ballot issue, when Tim Russert grilled him about it on "Meet the Press" Sunday, Nov. 19, so astonishing.
On the show, Russert brandished the Herron memo and browbeat Lieberman with it. "Many controversies swirling in Florida," Russert said, before leaning in for the kill. "How can a campaign who insists on the intent of the voter, the will of the people, not disenfranchising anybody accept knocking out the votes of people of armed services?"
Lieberman weakly replied that he hadn't read Herron's memo, that Russert's copy of it was the first he'd actually seen of it.
"Let me just say that the vice president and I would never authorize, and would not tolerate, a campaign that was aimed specifically at invalidating absentee ballots from members of our armed services," Lieberman said.
Russert read from more Bush propaganda, a letter the Bushies secured from the deputy director of the military postal services who "says that if a sailor is on a ship, it's hard to get a postmark." He pressed Lieberman. "Will you today, as a representative of the Gore campaign, ask every county to re-look at those ballots that came from armed services people and waive any so-called irregularities or technicalities which would disqualify them?"
Lieberman folded. "We ought to do everything we can to count the votes of our military personnel overseas. I would give the benefit of the doubt to ballots coming in from military personnel generally, but particularly in light of the letter and the kind of statements we've heard about that."
Among those watching "Meet the Press" Sunday morning was Herron, who was stunned to see Joe Lieberman sell him down the river. All his memo did was detail Florida law. He had written it, for God's sake, at the direction of the Gore-Lieberman team! He'd already lost his job so he could help the effort, and here was the vice presidential nominee distancing himself from the memo when all it did was explain Florida law!
Gore politico Nick Baldick's reaction was a little less measured. "Fuck Joe Lieberman!" he yelled to several colleagues. He swore that should Lieberman ever run for president he would do everything he could to defeat him in the states in which he had worked so hard on behalf of Gore: New Hampshire and Florida.
Meanwhile, the Bush team was lining up its heaviest legal hitters for the military ballot brawl. Fred Bartlit had been a young Kirkland & Ellis attorney in 1960 when the GOP hired him to investigate vote fraud in Texas. On Saturday, Nov. 18, he was at his daughter's wedding at the Drake Hotel in Chicago when he got a call from an associate at his firm, Bartlit, Beck, Herman, Palenchar & Scott in Denver. The Bush team wanted Bartlit to leave the wedding ASAP, fly down to Florida and argue for the inclusion of overseas military absentee ballots, he was told.
Bartlit, 68, agreed to do it the next morning.
A West Point grad and former Army Ranger, Bartlit's a tough-talking guy who constantly derides the world's overwhelming amount of "bullshit." He arrived in Tallahassee the morning of Sunday, Nov. 19 -- the same morning Tim Russert was beating up Joe Lieberman -- and he got to work on the overseas military absentee ballot case. The Bushies were suing 15 different counties to reconsider overseas ballots they'd disqualified.
Accompanied by Glenn Summers, an attorney at Bartlit's firm, and Unger, Bartlit presented his case on Friday, Nov. 24, before Judge Ralph "Bubba" Smith. Bartlit knew that however strong the overseas military absentee ballot case was politically, it had limited potential legally.
Given the law, so well outlined by their own Jim Smith, no one would say they had a great case. There were serious questions about venue -- whether they should be dragging 15 counties to a Tallahassee courtroom instead of filing in 15 different county seats throughout the state. But something had to be done, Bartlit and Bush attorney Kirk Van Tine had decided. Although the Democrats had apparently retreated from the Herron memo, the Bush campaign estimated that about 500 ballots had been rejected for technicalities -- and they thought they had a chance to get them included.
They zeroed in on legal confusion over whether an absentee ballot had to have a postmark -- or whether it was enough, if it was sent from a ship or some military location where it couldn't be postmarked, that it was signed and dated -- and tried to shake out every single absentee ballot they could. Some Bush pols repeated arguments to reporters that they wouldn't make in the courtroom: that they wanted military ballots given every possible benefit of the doubt.
They wanted ballots to count that bore unreadable postmarks. They also wanted post-Election Day postmarks to count.
How much if any of this emphasis on including ballots that weren't postmarked was rooted in the conference call from a week before is impossible to say.
When Bartlit walked into the courtroom, he expected to see Gore lawyers there, to argue on his side that these ballots should be counted -- the argument that, after all, Lieberman made on TV. They weren't there, which Bartlit found a bit sleazy. But nor were they there to argue against him, which Bartlit found a little bit disappointing, since he had a computer file full of graphics of Lieberman quotes making his argument.
Since the point was to get Bush votes, Bartlit dropped a Bush suit against Clay County, once it agreed to take the 17 absentee ballots it had rejected the week before and accept 14 of them. Twelve of them were for Bush.
The lawyer for Bay County asked Bartlit if the Bush campaign was going to dismiss its suit against his county's canvassing board, too, since they'd reconsidered 12 absentee ballots, resulting in a net gain of two votes for Bush. The Bush team wanted the county to look at even more votes. "We still have differences with Bay County," Bartlit said. And Escambia, Dade, Okaloosa, Collier, Leon, Pasco Counties, etc., etc. The list went on. Fred Bartlit hadn't been brought there to make it easy.
As the case proceeded, representatives of the canvassing boards argued that they had just followed the law.
Michael Chesser, representing Okaloosa County, made sure that everyone knew the disagreement with Bartlit and the Bushies had nothing to do with party label. "By registration and by voting practice, Okaloosa County is highly partisan," he said. "It is a home to Eglin Air Force Base, which is the largest air force base in the world. While it may be possible for some folks in this room to be highly partisan, it is entirely inappropriate, I would submit, either for the court or for a canvassing board to let partisanism enter in to what they do."
Soon enough, Judge Smith called it a day without ruling. But before the sun set, the Bush campaign had withdrawn all its suits. Nine of the 14 counties contacted the Bush legal team and said they were going to go along with what it wanted them to do, and bend over backward to include absentee votes, even if they didn't meet the strict requirements in the law. The Bush attorneys then took their lawsuits directly to the five remaining counties, away from Smith. To Hillsborough, Okaloosa, Pasco, Orange and Polk counties they went, trolling for votes.
An anti-Gore rally was held in Pensacola. Elections supervisors were bombarded with angry, clearly coordinated, phone calls and e-mails. In Duval County, the canvassing board reviewed the absentees and gave Bush 20 net votes.
In Brevard County -- home to Cape Canaveral and Patrick Air Force Base -- Bush gained eight net votes.
Late ballots were accepted in Escambia and Santa Rosa counties. Escambia gave Bush 36 net votes. The Santa Rosa County canvassing board accepted two ballots with postmarks of Nov. 8, the day after the election, and five ballots that arrived after Nov. 17.
Clay County (Bush 41,736, Gore 14,632) accepted two votes that arrived by fax.
Eventually, Bush picked up a net of 176 votes by Thanksgiving weekend. Unger referred to the operation as "Thanksgiving stuffing." In December, Bartlit told me that he estimated that at the end of it all, the suit shook out maybe 300-400 net votes for Bush.
Either number, of course, provided Bush with more than his official 154-vote margin of victory.