And the winner was?

The Miami Herald's tally of Florida undervotes fails to yield a clear victor -- yet another reason the Gore team should have actually tried to "count every vote."

By Jake Tapper

Published April 4, 2001 7:45PM (EDT)

The Republicans controlling the Florida Legislature and governor's mansion have managed to stop the media from examining the autopsy photographs of NASCAR legend Dale Earnhardt, but they haven't been able to stop reporters from poking around the coroner's report on Vice President Al Gore. Media recounts of the state's disputed "undervotes" and "overvotes" have been going on since November, even before the disputed election was effectively declared fini by the U.S. Supreme Court on Dec. 12.

The latest organization to slice up the results is the Miami Herald, which -- with parent company Knight Ridder and USA Today -- released its tabulation of the state's 64,248 "undervotes" Tuesday night. The Florida Supreme Court ordered those ballots reexamined, but the U.S. Supreme Court put an end to that process on Dec. 9. But the Herald numbers -- crunched by the accounting firm BDO Seidman -- do little to answer questions as to who really won Florida.

While the Herald headline reads, "Review shows ballots say Bush," the story shows that in fact, depending on the ballot assessment method, and how many counties might have been ordered to examine their undervotes, the results according to the Herald could have ranged from a Bush win by 1,655 votes, or a Gore win by 393.

The Herald audit consisted of two separate reviews, in a sense. One did what the Florida Supreme Court ordered: counted the 40,000 or so undervotes statewide left unexamined. The court did not require a recount of undervotes from Broward, Palm Beach and Volusia counties, counties that had already conducted their own manual recounts. Nor did it mandate a recount of the the 139 precincts in Miami-Dade County that, before the U.S. Supreme Court stepped in, had already been inspected. (Those counties' recounts, recall, had yielded a 383 vote pickup for Gore and shrunk Bush's 537-vote lead to 154 votes.)

Ironically, according to the Herald, if the 40,000 or so unexamined undervotes had been reviewed by the punch-card standard the Gore attorneys argued for (the most generous standard, in which every dimple, pinprick, hanging chad and the like was construed to be a vote) Bush would have picked up 1,665 votes.

But using the Bush standard -- the most restrictive method of analysis, in which only cleanly punched chad from the ballots were counted as votes -- Gore would have eked out a victory by three votes. Counting dimples on those ballots where the voter failed to punch through on more than one race, leaving a pattern of dimples, Bush would have won by 884; counting chad with no more than two corners attached, Bush would have won by 363 votes.

More favorable to Gore, however, was the Herald's reexamination of all the undervotes statewide, including what can only be called a re-re-examination of those from Broward, Palm Beach, Volusia and Miami-Dade. In this review, which went above and beyond what the Florida Supreme Court ordered, a loose standard would have given Gore a victory of 393 votes. Again, counting dimples on those ballots where the voter failed to punch through on more than one race, Gore would have won by 299. Counting chad hanging by two corners or less, Bush would have won by 351 votes. A strict standard would have given Bush a victory by 416 votes.

The Herald did not go into detail as to what standards were used for Opti-scan counties, such as Volusia County. The official recount in Volusia yielded a net gain of 98 votes for Gore.

These numbers, as well as those pending from a media consortium that includes the New York Times, are, of course, legally insignificant. Since Florida law dictates a county-by-county assessment of the ballots -- with each disputed ballot assessed by each county's canvassing board -- it is irrelevant how anyone other than members of those canvassing boards judges a ballot.

Predictably, the Herald's results have done little to change the familiar threads of spin coming from the Gore and Bush camps. "The president believes, just as the American people do, that this election was settled months ago," White House spokesman Ari Fleischer told the Herald. "The voters spoke, and George W. Bush won."

Former Gore spokesman Douglas Hattaway told the Herald, "If you count every vote, Gore wins. This study confirms that Florida's election system failed the voters."

Many Democrats are hoping to create a hailstorm out of any media analysis that shows that Gore could have won the state of Florida's 25 electoral votes -- and therefore the presidency -- had any additional ballots, unread by tabulation machines, been examined. Every few days, press releases arrive from the Democratic National Committee with the latest news from the land of media recounts.

"Al Gore would have picked up more than enough votes to win Florida and the presidency ... [had] Republicans not delayed and ultimately ended hand recounts of ballots," DNC chairman Terry McAuliffe said in one typical example.

McAuliffe could not be reached for comment Tuesday evening, though no doubt some Democrats will make hay out of the Herald's muddled results -- which the paper, oddly, spins as a conclusive Bush recount win.

But Democrats should curb their rhetoric. It is true, and regrettable, that only a few thousand of the state's 175,000 undervotes and overvotes were examined by hand. But there were always serious questions about how legitimate any recount could be if it only includes the undervotes and not the overvotes as well. The Miami Herald reports today that its "reviewers saw numerous overvotes, and it became clear that many could have been declared valid votes -- if they had been examined in time. For instance, in some counties that use optical-scanning equipment, people managed to vote for Gore and then again for his running mate, Joseph Lieberman, or for Bush and then again for his running mate, Dick Cheney."

But the more important problem with the carping by McAuliffe and Hattaway about the lack of a rigorous recount is this: Democrats are as much to blame as Republicans for the lack of an official statewide Florida recount.

And if the Herald's numbers show anything, it's that the Gore folks screwed up royally by not acting on their "count every vote" rhetoric.

As you may recall, the Gore team -- using the state's "protest" period election laws -- requested hand recounts in four counties that Gore won. The plan was to get as many Gore votes up on the board as possible before the certification date. After that time, the thinking went, Bush would then be trailing Gore. It would then be Bush who would be the one who would have to call for an examination of all 175,000 undervotes and overvotes by the media.

There were clear reasons for the four counties that the Democrats picked. Palm Beach County had a problem with its butterfly ballot -- and an astoundingly high number of both undervotes and overvotes. Volusia County had experienced several problems on Election Night, with 16,000 Gore votes vanishing on the county election board's computer.

Broward and Miami-Dade counties were selected because they recorded high numbers of undervotes -- and because they were Democratic-leaning counties.

Of these four, only Volusia County was a great story for the Democrats. It was the only one of the four selected counties to complete its hand recount by Nov. 14, the mandated certification date. Volusia County's canvassing board was run by a retiring, no-nonsense Republican judge, Michael McDermott, who thought that the Republican lawyers sent to the scene were clearly there to stand in the way of the unread votes being counted.

Gore lawyer Jack Young, a recount expert, ran the show there, and after the county had completed its reexamination of the Opti-scan ballots (think SAT-style oval fill-ins), Gore had picked up 98 net votes. That was from both the undervotes and the overvotes. So after the Volusia County canvassing board completed its task, Young called Gore headquarters in Tallahassee, with some suggestions for more recounts.

He wanted to go to Lake County, where there were thousands of undervotes and overvotes. He wanted to go to Duval County, which had 29,000 undervotes and overvotes combined. No need to sue anyone or file a formal "protest" or anything like that, Young said: He would just tell the Volusia story, and hopefully the county canvassing boards would see his logic. Young is a recount expert; he does this for a living.

Young was immediately met with skepticism by the Gore lieutenants, the ones he called "the politicos." Aren't those Republican-leaning districts? They asked.

Yes, Young said.

Can you guarantee that Al Gore will pick up votes there?

No, of course not, he said. But we're behind. We need to increase the number of possible votes in the pool.

Go to Broward County, he was told. Supervise the rest of that (strongly Democratic) county's recount.

Significantly, the Gore lieutenants -- former DNC political director Jill Alper and Boston politico Charlie Baker -- who told Young to head to the Democratic stronghold instead of trying to enfranchise other voters, did so with the understanding that the Gore plan was to run up as many votes as possible. The thinking went: If Gore were ahead after Volusia, Broward, Palm Beach and Dade counties had finished their counts, then Bush would contest the election. If not, Gore would do so.

Whichever it was, sooner or later, Alper and Baker thought, someone would make the move in the "contest" phase to bring all the 175,000 unread ballots into a courtroom, like the climax of "Miracle on 34th Street."

Throughout the campaign, Gore lieutenants referred to the circle of higher-ups as "The Matrix," a reference to the 1999 sci-fi thriller about an evil artificial intelligence computer power that runs the world autocratically. This was not a compliment.

And when it came time to contest the election, the decision by the Matrix -- in this case, Gore, Sen. Joe Lieberman, Bill Daley, Warren Christopher, Ron Klain, Michael Whouley, Carter Eskew and Bob Shrum -- to not even remotely attempt to attempt a statewide hand recount severely disappointed the Gore lieutenants. It made many of them feel like frauds.

Instead, after the election was certified and the "contest" period began, the Gore team went after 51 votes here, 192 votes there. It was a desperate scramble. And as they entered the final phase of the post-election melee, they succeeded in this: They never, not once, made a serious attempt to have all 175,000 undervotes and overvotes examined.

Indeed, the Gore strategy mystified Bush staffers. One of the Bush attorneys, Michael Carvin, wondered how the Gore legal team thought it could secure the presidency based on just some of the 175,000 unread ballots being looked at, from four Democratic counties. It was a strategy so brazen, he was convinced that there had to be more there.

There wasn't. Gore, at that point, was mired in a pool of self-righteous indignation and hopelessness, and so were his staff members. And it caused some bizarre, not to mention disingenuous, behavior. They pushed the idea that, had Palm Beach County's late hand-recounted numbers been counted by the biased secretary of state, Katherine Harris, Gore would have picked up 215 votes. The actual official number, according to Palm Beach County's elections supervisor, Theresa LePore, was 174 net Gore votes.

According to LePore, a Democrat, the official number had always been 174, and she still has no idea where that 215 figure ever came from.

Either way, why would Gore choose such selective recounting? Because his team thought the law allowed it, thought that their friends on the Florida Supreme Court would permit it, and they weren't sure a statewide hand recount would lead to the inauguration of President Al Gore. Thus, the Gore effort truly never was about counting every vote.

At the same time, Gore loyalists and many journalists -- including the Washington Post -- maintained that the Gore team just couldn't try to count every vote, that it was simply too unrealistic.

But even Gore lieutenants recognize this to be a sham argument. The Gore team argued in court that there were unread ballots in Palm Beach and Miami-Dade counties -- while ignoring the same phenomenon in Republican-leaning counties all over the state. Why couldn't they have asked a judge to examine all of them? There is no answer to this. Practicality is not an argument; all of this was unprecedented, and the Gore team could have certainly asked for a statewide recount during the contest period. What they were asking for -- the inclusion of just enough selected votes from selected counties for Gore to win -- is certainly no more reasonable.

Moreover, there were a handful of high-profile Republicans who had broken from the GOP mantra that the election had already ended on Nov. 7, and were counting for a statewide hand recount. Gore could have stood with Bush-backers like Sen. Chuck Hagel, R-Neb., or Weekly Standard editor and publisher William Kristol, both of whom acknowledged that the only way to get out of this mess with true closure was to count all 175,000. Gore staffers could have sought out Hagel and Kristol. Gore could have tried to build a bipartisan agreement. He didn't. Because he didn't want that.

By the end of the Florida fracas, those arguing loudest for a statewide peek at the 175,000 questionable ballots were Bush representatives. At the end of the contest trial, Bush attorney George Terwilliger told the judge that if he were going to count undervotes and overvotes, it had to be on a statewide basis. And Secretary of State Harris' attorney, Joe Klock, was making that same case throughout the trial.

But not only was the Gore strategy morally bereft (not to mention a dishonor to all those truly associated with the cause of enfranchisement), it was dumb.

A December Orlando Sun-Sentinel review of 3,114 overvotes in Bush-backing Lake County showed that had Young been permitted to make his pitch to that canvassing board, and had they listened, Gore could have picked up a net of 131 votes.

Yes, Gore did, in those early days, twice lamely mention that he would agree to a statewide recount. But it was always as an aside, something he'd be willing to do if it was what Bush wanted. He never wanted it, and he never truly tried to get it done -- actually legally pursuing the completely opposite approach. In two separate courtrooms, Gore attorney David Boies argued against a statewide recount. Just count these selected votes from these selected counties, he argued.

After all, that's what the law allows.

In neither courtroom was he heeded. Judge N. Sanders Sauls ruled against him and the entire Gore team in their official contest. Then, during their successful appeal, the Florida Supreme Court ruled for a statewide recount of all the undervotes, which is what the Miami Herald analysis attempted to play out.

But the Florida Supreme Court's proposal for solving the mystery of who won Florida, halted by the U.S. Supreme Court, actually made little sense. Inspecting just the 60,000 or so statewide undervotes, as the Florida court mandated, left out the 115,000 or so overvotes. Those were just as relevant as the undervotes if one is concerned by enfranchisement and "intent of the voter," they had already been counted in at least one recount, Volusia's, and they ultimately -- not that it should have mattered to the court -- would have been more valuable to Gore.

President Bush has nothing to be proud of either, doing everything he could to block the recounting and let the troubled, tangled final tallies be the final word. But in the coming weeks, you're likely to hear a lot of talk about the recounts coming from McAuliffe and other unhappy Democrats. They will have a hard time persuading a public who sat through the recount arguments the first time.

Besides, if the majority of Americans who voted were denied the opportunity to have their candidate serve as president precisely because Gore himself never really stood behind his own rhetoric, how can anyone feel cheated?

Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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