When David Boies, representing Vice President Gore, appeared before the Florida Supreme Court on November 20 one of the justices asked him if the court should be concerned about the standards used in hand recounts for judging “faulty chads.” Boies said that was an issue the court should deal with and that in the Florida law “the test has always been the intent of the voter.” Asked if he was saying “that any mark made by the voter would be evidence of that voter’s intent and should be counted as such,” Boies replied, “I think so, Your Honor, it is quite important that this court be as specific as possible in terms of the standard to be applied so that we will have uniformity.”
Boies Gave Misleading Information
The Florida Supreme Court indicated what it thought the standard should be by quoting from an opinion of the Supreme Court of Illinois that said it would be wrong “to invalidate a ballot which clearly reflects the voter’s intent simply because a machine cannot read it.” It explained, “These voters should not be disfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot.”
This shows that the Illinois Supreme Court was thinking of chads that were partially dislodged, but that is not what David Boies had in mind. Boies had told the court that any mark should be taken as indicating the voter’s intent and referred to papers he had submitted about the Illinois Supreme Court decision in the case of Pullen v. Mulligan. The Illinois Supreme Court had upheld the trial court’s verdict, and Boies had obtained an affidavit from Michael Lavelle, one of the attorneys in that case, in which Lavelle swore that the trial judge had approved counting indented chads as indicative of the voter’s intent.
Two reporters for the Chicago Tribune researched Pullen v. Mulligan thoroughly. In an article published on Dec. 1, they claimed that David Boies, the super-lawyer, had given misleading information about the Illinois Supreme Court’s ruling to both the Florida Supreme Court and the Broward County canvassing board. One of the Chicago Tribune reporters called Michael Lavelle and read to him from the transcript of a Sept. 17, 1990 hearing in the case that showed that the trial court judge had not counted indented or dimpled chads as valid votes, and the Illinois Supreme Court had upheld him. The Tribune reported that Lavelle promptly sent Boies a corrected affidavit in which he said that he was mistaken in his recollection of how the disputed ballots were reviewed.
That was sent early on Thanksgiving Day, the day after Boies had told the Broward County canvassing board that Lavelle’s affidavit showed that the Illinois courts counted any “discernible indentation” as a valid vote. In response to a question about how to determine the voter’s intent when “we see no light, there’s just a mark,” Boies said the Illinois case, “says you look for an indentation.”
The Tribune reported that the judge did not even accept every ballot with light shining through. “In making his decisions,” it said, “he considered whether he could determine the voter’s intent by, among other things, seeing if the voter had made similar marks elsewhere on the ballot.” The Tribune reported that Boies claimed that he had sent copies of Lavelle’s second affidavit to members of the Broward County canvassing board. The board members could not remember having seen it, but they had heard from other sources that what Boies had said about the case had been disputed.
Broward Buys Boies’s Standards
Nevertheless, the two Democrats on the Broward board, Commissioner Suzanne Gunzburger and Judge Robert Lee, adopted the lax standard that Boies had recommended they use to judge disputed ballots. Judge Robert Rosenberg, the lone Republican, frequently dissented. The following is a transcript of their deliberation over one disputed ballot.
COMMISSIONER GUNZBURGER: I can see the light if you hold it just right.
JUDGE LEE: 5A-11 has a slight dimple on the spot. I have to try to remember these.
JUDGE ROBERT ROSENBERG: Cannot be ascertained with reasonable certainty.
COMMISSIONER GUNZBURGER: I disagree on this one because it’s pushed more than a slight, and there is light visible in the bottom. I’ve read some of the opinions that say when there is light visible that it is a punch for the candidate.
JUDGE LEE: I don’t see it.
JUDGE ROSENBERG: I don’t see any light visible
MR. LICHTMAN (Democratic observer): Hold it up. I can see it from here.
COMMISSIONER GUNZBURGER: Turn it around.
JUDGE LEE: You’re right. You can see it all right. I agree with the commissioner. 5A-11 is a vote for Gore.
On Nov. 22, four days before the deadline set by the Florida Supreme Court for the submission of the county tallies to the Secretary of State, the net gain for Gore from Broward’s hand recount, adjusted for Bush’s gain from newly counted absentee ballots, was only 68 votes. That was with all the precincts and two thirds of the absentee ballots counted. Four days later, on Nov. 26, in Broward’s final tally Gore’s net gain was 567 votes. This extraordinary increase in just four days came entirely from the “under votes,” the ballots that did not show a vote for president in the machine count. They had been set-aside in the hand count because the intentions of the voters could not be readily discerned. The idea was to reconsider them after all the other ballots had been counted.
Broward County’s Vote Pool
That gave the Democrats a pool of 6,716 under voted ballots in Broward County alone when they began their hand recount. The two Democrats on the Broward canvassing board could cast ballots for Gore simply by claiming that they could see an indentation or a pinprick on a chad. Judge Robert A. Rosen-berg, the one Republican on the board, often could not see what they saw, even using a large magnifying glass. He tried without success to get them to stick to the “reasonable certainty” standard laid down by the Florida Supreme Court.
Bush’s lead was only 930 votes when Broward County began its hand count. Broward alone could have provided all the votes Gore needed to win Florida if its canvassing board had wanted to do so. They could ride roughshod over Republican objections. One Republican observer, attorney William Scherer, objected so persistently that the chairman, Judge Lee, barred him from the counting room.
It wasn’t necessary for Broward to shoulder the entire burden of winning Florida for Gore. Gore requested hand recounts in Palm Beach and Miami-Dade counties as well. Each of them had over 10,500 under voted ballots, bringing the total available to more than 28,000. The canvassing boards in all three counties were under Democratic control. Trolling for ballots in these pools beat voting the dead. It could be carried out in public, and it was even seen on television. As the “deliberation” quoted above shows, the Broward canvassing board went beyond partially dislodged chads to determine voter intent. Republican observers charged that Commissioner Suzanne Gunzburger was bending ballots “in order to try to create or enlarge slivers through which light might pass.”
Gore was obviously satisfied with the standards applied by the Broward County canvassing board. He did not include them in his suit to force additional hand counts. That was limited to Miami-Dade and Palm Beach counties.
Palm Beach Was Different
Judge Charles Burton, the chairman of the Palm Beach County canvassing board, was questioned at length about the standards his board applied in determining a voter’s intent when he appeared as a witness in the trial of Gore’s suit before Leon County Circuit Court Judge N. Sanders Sauls. Burton, a Palm Beach County judge, is a registered Democrat, as are the other two members of the canvassing board, Theresa LePore and Carol Roberts. He was not as openly partisan as Judge Robert Lee, his counterpart in Broward County. He had opposed conducting a full hand recount of all the Palm Beach ballots even though a sample hand count of four precincts had reduced Bush’s lead over Gore by 19 votes.
Burton said that the standard they first applied when they did the sample recount was based on a 1990 court ruling in Palm Beach County that indentations should not be treated as an indication of a voter’s intent. That was soon changed to what he called “the sunshine rule.” If any light could be seen through a hole in the ballot it was counted as a valid vote. He said that resulted in anomalies that made him uncomfortable and they switched back to the 1990 standard.
Before the complete hand count was begun, there was a hearing before Circuit Court Judge Jorge Labarga. On Nov. 15 he threw out the 1990 standard for determining voter’s intent. Labarga said the canvassing board could accept or reject ballots with indentations at its discretion. The board decided on Nov. 16 that a chad that is hanging with at least two corners punched could be accepted as a vote. It decided that chads with only one corner severed could be counted if the board thought there was clear evidence that it showed the intention of the voter.
Pressure From Gore
Each ballot was shown to the Democratic and Republican ob-servers. The canvassing board reviewed those that were challenged. The board reviewed thousands of them, but Gore was not satisfied with their contribution to overcoming the Bush lead. On Nov. 20 his attorneys moved to clarify the standards, and Judge Labarga held another hearing. Burton told the judge that the great majority of ballots had dimples or indentations of some kind, some of which were barely discernible. He said there were many where it was very hard to determine the intent of the voter.
There were ballots with multiple dents in the first column where the presidential candidates were listed. There were many, he said, where observers from both parties agreed that there was no vote for president He said some had gone to the polls just to vote for sheriff, for example, and had cast no other votes.
Inferring Intentions Is No Science
Judge Burton’s description of the problems created by voters who disregarded instructions showed why hand counts with no clear-cut standards are fraught with a high degree of subjectivity and tempt the members of the canvassing boards to award the votes they are judging to the candidates they personally favor. That is a temptation that those who take their politics seriously may find hard to resist when they know that their decisions could decide who will be the next president of the United States. That is the power that Judge Labarga gave the Palm Beach County canvassing board when he ruled that they could accept or reject indentations as valid votes.
In his testimony before Judge Sauls, Burton cited several examples of the problems they faced. Burton said they saw many ballots with a dimpled chad for a presidential candidate when all the rest of the votes on the ballot were cleanly punched out. The Palm Beach board decided the lone dimple should not be counted as a vote no matter how prominent it was. On the other hand, if there were five dimpled chads and 15 cleanly punched votes, the dimples would be counted. This suggests that if there is a dimpled chad for the presidential candidate of your choice and you can persuade another member of the board that there are four other indentations on the ballot, you can have it counted as a vote for your candidate. The same strategy might be used to reduce the votes for the candidate you oppose. Burton said that if there were a dimpled chad for one presidential candidate and a cleanly punched hole for another, the dimpled chad would be disregarded. It would not cancel out the clean punch. But presumably that could be contested if two of the board members claimed they could see several other indentations on the ballot, establishing the existence of a pattern.
The same strategy might be used to reduce the votes for the candidate you oppose. Burton said that if there was a dimpled chad for one presidential candidate and a cleanly punched hole for another, the dimpled chad would be disregarded. It would not cancel out the clean punch. But presumably that could be contested if two of the board members claimed they could see several other indentations on the ballot, establishing the existence of a pattern.
Speeding Up The Count
Burton claimed that the Palm Beach board had adhered to the standards set down by Judge Labarga, but he also admitted that they sped up their count as the Nov. 26 deadline set by the Supreme Court approached. On Nov. 22, according to the New York Times, the Palm Beach hand recount had produced a mere two-vote net gain for Gore, but their final tally, which was not accepted because it was submitted two hours after the deadline passed, showed a Gore net gain of 215 votes. This was in addition to the net gain of 643 votes for Gore obtained from the Palm Beach machine recount. In contrast, the machine recount in Broward County gave Bush a net gain of one vote and its hand recount gave Gore a net gain of 567 votes.
When the required machine recount of all Florida counties was completed, Bush still held a 930-vote lead. Gore was counting on hand recounts in Palm Beach, Broward and Miami-Dade Counties to put him over the top. Miami-Dade severely dampened his hopes on Nov. 22, when its canvassing board voted unanimously to discontinue its late-starting recount. In four days, it had hand counted 20 percent of its precincts with a net gain of 157 votes for Gore, but for some reason the board decided that it would not be able to complete the count in the remaining 479 precincts in the four days remaining.
Furious Democrats blamed the decision on intimidation of the board by Republican observers who had noisily protested their exclusion from the room where the recount was taking place. All three board members and the one policeman who was keeping the protesters from entering the room denied that. He told a reporter that all he suffered was a headache from the noise they were making.
That meant that Gore would have to depend on the hand recounts in Palm Beach and Broward Counties if he was to eke out a victory. He was also challenging Nassau County’s decision to certify its first vote count when the recount inexplicably came up with a total count that was two hundred votes lower than the first.
Six To Decide For Six Million
Two canvassing boards, composed of five Democrats and one Republican, had it in their power to decide whether Florida’s 25 electoral votes would be cast for Gore or Bush. The Florida Supreme Court, by sanctioning the subjective hand count in three counties, had delivered to these six individuals the power to decide who the president of the United States would be. All they had to do was claim that they found enough dimpled or indented chads on the questionable ballots cast in Palm Beach and Broward Counties to overcome Bush’s 930-vote lead. That was harder for Broward than for Palm Beach. It had fewer disputed ballots in its pool, and its machine recount had found only 87 ballots that changed the result. Forty-three of them were for Gore and 44 for Bush. But the Broward board was up to the task. Composed of two very partisan Democrats and one dissenting Republican, it managed to give Gore a net gain 430 times as large as the net gain for Bush in its machine recount.
Palm Beach, under the leadership of Judge Burton, a Democrat who had opposed the manual recount, let the Democrats down. All they had to do was conjure up a net change for Gore two-thirds as large as the Gore net gain produced by their machine recount and Gore would have been the winner. That shouldn’t have been too hard. They had 10,582 under voted ballots at their disposal, and their machine recount had produced six times as many added votes for Gore as for Bush. Burton testified that the indentations were “barely discernible on many of the ballots.” Given the standards laid down by Judge Labarga, who would accuse them of fraud if they made a few hundred questionable calls? Only their own consciences.
The Palm Beach board was more principled than the Broward board, and it stuck to higher standards. If the Broward board had known that Palm Beach would fall so far short, it might have fished even more votes for Gore from its pool of dimpled and unmarked chads. If they did that and if it survived a legal challenge by Bush, the year 2000 election would go down in history as having been decided by the Florida Supreme Court and a half dozen obscure county officials to whom it delegated the power to decide which candidate would win.
Hand Recounts, Good And Bad
Some dictator is being quoted as saying he didn’t care who voted as long as he had control over who counted the votes. That is what those who have agreed with Gore and his ardent supporters that hand counts are more accurate than machine counts overlook. John Ahmann, one of the developers of the Votomatic device used in Florida, testified in Judge Sauls’ court that hand counts are a good idea in very close elections because when the chads are not completely detached they can be pushed back into the holes and prevent the light from going through the punched holes and registering the votes. That is why voters are instructed to examine their ballots and remove any hanging chads.
They are not a good idea when fallible human beings with strong partisan feelings and weak consciences are asked to divine the intentions of voters from barely discernible indentations on ballots, influenced by the assumption that how voters cast their votes in some races is an infallible guide to how they might have voted in others. Machines eliminate subjective bias. For hand counts to be reliable, the room for subjective bias must be minimized by the adoption of firm and clear standards and provisions for holding the human counters accountable.
The failure of achines in Florida to register a choice for president on one percent of the 6 million ballots cast doesn’t mean that those voters were cheated and that divining their choice and registering it must remedy this. The highest percentage of under voted ballots in Florida was in a county where voters use pencils to indicate their choices.
THE NEW YORK TIMES GETS SPUN
On December 4, the New York Times in two front-page stories devoted about two thousand words to reporting on testimony by John Ahmann, an expert witness for Gov. Bush in the two-day hearing conducted by Leon County Circuit Court Judge N. Sanders Sauls on Vice President Gore’s demand for a hand count of disputed ballots in two Florida counties-Miami-Dade and Palm Beach. Mr. Ahmann who had helped create and market the Votomatic voting machines used in those and many other Florida counties, testified for over an hour about the reliability of the machines and the problems caused by voter error in using them.
The Times showed little interest in Ahmann’s refutation of claims by a far less qualified Gore witness that age, wear and tear caused by heavy use and poor maintenance explained the large number of ballots with indented, dimpled or partially punched chads found in the hand recounts in Florida.
What excited the Times was the discovery by Gore’s lawyers that after Ahmann filed for a patent on improvements in the Votomatic twenty years ago, he told the Patent Office that under some circumstances the machines could punch the chads incompletely, resulting in serious counting errors. Its page-one story said that the last minute discovery of this patent application presented the Gore legal team with what it “jubilantly called the ‘Perry Mason moment’- that delicious inevitable turning point when Mr. Mason’s faithful secretary, Della Street, slips into the courtroom with newly discovered evidence that lets him spring a coup de grace that reduces the witness to tears and confession.”
Reporters David Barstow and Dexter Filkin wrote, “A junior Gore lawyer rushed into the courtroom with a freshly unearthed document that Vice President Al Gore’s lawyers now proclaim as a gift from heaven.” Why? They explained, “Confronted with his old application, Mr. Ahmann before long was agreeing that in close elections, a manual recount is not a bad idea. The effect of his testimony was written plain in the strained facial expressions of the Bush legal team and in what Mr. Zack (a Gore lawyer) did when Mr. Ahmann left the stand. He shook Mr. Ahmann’s hand.” David Firestone, who wrote the front-page lead story in the Times that day, included 350 words on this supposedly big break for Gore. He omitted the date of the patent application and quoted Gore attorney David Boies’s claim that Ahmann was the best witness for Gore’s side. This is pure spin.
After reading briefly from a reply Ahmann had given to questions asked by the Patent Office in 1981 about the problems his improvement was designed to correct, and having Ahmann affirm that what he had read was correct, Gore attorney Steve Zack said, “Okay. I have nothing further on that. I’ll move on, judge.” He moved on to questions about the proper maintenance of the Votomatic and then asked about Ahmann’s experience with hand recounts. After establishing that Ahmann had participated in some hand recounts, Zack said, “And, sir, you also believe as you told me, in close elections, you should have a hand recount. Is that correct?” After an objection from Bush’s lawyer was rejected, Zack said, “Isn’t that what you told me just the day before yesterday, sir?”
Gore’s lawyers had learned how Ahmann felt about hand recounts two days earlier when Zack deposed him. The discovery of Ahmann’s replies to the Patent Office was neither “a gift from heaven” nor a “Perry Mason moment.” All three Times reporters missed that, and the editors wasted a lot of valuable space on a phony story that reeked of spin by Gore’s lead attorney, David Boies. His success in spinning the Times may have raised the sagging hopes of Gore and his supporters, but not for long. Within a few hours Judge N. Sanders Sauls, who saw no “Perry Mason moment,” and tossed Gore’s suit out of court, dashed them by the U.S. Supreme Court and.
What You Can Do
Send the enclosed cards or your own cards or letters to Arthur O. Sulzberger, Jr. Arthur O. Sulzberger, Jr., the publisher of The New York Times, Scott C. Smith, CEO and publisher of The Chicago Tribune and an editor of your choice. A card that you may use to order a copy of Robert Stinnett’s “Day of Deception” from AIM at a discount is enclosed. (See the Notes)