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Recent commentary from National Journal:

Social Studies: Vouchers—A Liberal Plot To Destroy Private Schools, by Jonathan Rauch (December 28, 2000)
Conservatives who want to get the state out of public education may instead get it into private education.

Media: Next Year in Georgetown, by William Powers (December 28, 2000)
Here come the next four years, and they're looking rosy. It'll be the Bush-Clinton era. Or, if we have anything to say about it (and we do!), the Clinton-Bush era.

Political Pulse: At Least It's Settled, by William Schneider (December 28, 2000)
Though the Court's presidential ruling baffled many, the nation seems relieved.

Legal Affairs: The Supreme Court—and Others—Flub the Challenge, by Stuart Taylor Jr. (December 20, 2000)
If this cloud has a silver lining, it is as a reminder that judges are just as fallible as politicians.

Media: Image-Poor, by William Powers (December 20, 2000)
The strongest political story of modern times was perhaps the weakest visual story of modern times.

Political Pulse: An Election—and Much More—Lost, by William Schneider (December 20, 2000)
When the lawyerly fog cleared, Al Gore was a big loser. So was the Supreme Court.

The Campaign: After All the Acrimony, the Election Ends on Grace Notes, by Carl M. Cannon (December 20, 2000)
Gore conceded with grace and class, while Bush emphasized the need for bipartisanship.

More from National Journal.

Discuss this article in the Politics & Society conference of Post & Riposte.
from National JournalLegal Affairs:
Why the Florida Recount Was Egregiously One-Sided

Not enough attention's been paid to what was wrong with the decision by Florida's state Supreme Court

by Stuart Taylor Jr.

December 28, 2000

Most of the attacks on the U.S. Supreme Court's 5-4 ruling on Dec. 12 halting Florida's statewide manual recount have proceeded from the assumption that the Florida Supreme Court had acted reasonably—or at least defensibly—in its stunning, 4-3 decision four days before to order the rushed recount. The assumption is wrong, as I demonstrate below, and my next column will discuss what the U.S. Supreme Court should have done about the Florida case.

The Florida court's decision was so blatantly, one-sidedly pro-Gore that but for the U.S. Supreme Court's intervention, it would have had the foreseeable effect of rigging the recount in the guise of "counting every vote." To be precise, the Florida court's decision—aside from making a hash of Florida's election laws and denying George W. Bush any semblance of due process—awarded Al Gore several hundred more "votes" than he would have gained from any fair and credible vote-recounting process. If Gore had pulled ahead of Bush by, say, 300 votes in the further recounts ordered by the Florida court, such phony "votes" would have provided his entire margin of victory, and then some.

I won't focus here on legalisms. Let's just count the votes, as the saying goes. Starting with some undisputed numbers from three counties that have received far less attention than they deserve: the Broward 567, the Miami-Dade 168, and the Palm Beach 176. These are the margins (totaling 911) by which the new "votes" generated for Gore exceeded those for Bush in the manual recounts that had already been done, before Dec. 8, by the Democratic-dominated canvassing boards in these three big, mostly Democratic counties. (Superlawyer David Boies, who represented Gore, has repeatedly put the Palm Beach number at 215. He has repeatedly been wrong.)

With no real explanation, the Florida court conclusively awarded Gore all 911 of these "votes." It added the Miami-Dade 168 and the Palm Beach 176 to Gore's statewide total—even though Miami-Dade had done only a partial recount, in heavily Democratic precincts, and even though Palm Beach had missed the Florida court's own Nov. 26 deadline for completing its recount. The Florida court also made final the Nov. 26 certification of Broward's number, 567. In doing so, it ignored Bush's pending challenge to hundreds of these Broward "votes" (and similar "votes" in Volusia County)—most of which were not votes at all, Bush's attorneys argue persuasively. Rather, they were unreasonable deductions of voter intent, from inscrutable pieces of paper, by the transparently partisan, count-every-last-dimple majority of the Broward canvassing board.

According to the Florida court's own calculations, the Dec. 8 decision thus brought Gore to within 193 votes of overtaking Bush. (This assumes the Palm Beach number to be 176, not 215.) The Florida court's new recount also gave Gore some hope—his only hope—of pulling ahead, by assigning hundreds of new vote-counters to search through 50,000 as-yet-unexamined "undervotes" for the 200 dimples that could make Gore President. (Undervotes are ballots on which vote-counting machines had detected no vote for any presidential candidate.)

If enough dimples could be found, it appears, the Florida courts would almost immediately have designated Gore the winner of Florida's electoral votes, and of the presidency. But even a cursory analysis suggests that this would have been a travesty, because about two-thirds of both the Broward 567 and the Miami-Dade 168 appear to have been phony votes—ballots that came nowhere near proving voter intent to choose Gore.

Some sixth-grade arithmetic: Officials in Broward interpreted about 25.6 percent (1,721) of the county's 6,716 undervotes as votes for either Gore (1,142) or Bush (579). The vote-to-undervote ratio in Miami-Dade's partial recount before Thanksgiving was also about 25 percent. But officials in Palm Beach County, including the estimable Judge Charles Burton, interpreted less than 8 percent (828) of the 10,604 undervotes there as real votes.

So Broward and Miami-Dade generated more than three times as many "votes" per 100 undervotes as Palm Beach. Given the similarities between Broward and Palm Beach, the magnitude of this difference is almost surely attributable to different vote-counting standards.

Other evidence bolsters this inference: Democratic officials in Broward, Palm Beach, and Miami-Dade counties had all liberalized their chad-counting standards several times during the post-election period, amid complaints from the Gore camp that the counties would put Gore over the top only if they "counted" more dimpled chads. Even the liberalized Palm Beach standard-counting a dimpled chad when a pattern of dimples on the ballot indicated voter intent-was not nearly as pro-Gore as the new standards used by Democratic officials to "count" the Broward 567 and the Miami-Dade 168.

Broward, in particular, counted virtually all dimpled chads, after Gore's attorneys produced an affidavit claiming—falsely, as it turned out—that this was what the Illinois courts had done in a case quoted approvingly by the Florida Supreme Court in its first, Nov. 21 decision. In fact, Illinois and most other states do not ordinarily count dimpled chads, with a few exceptions that Gore's attorneys misrepresented to be the rule. And until this election, no Florida court had ever suggested (let alone ordered) that dimpled chads be counted as votes. In fact, Palm Beach County had barred the counting of dimpled chads.

The new, liberalized Palm Beach County standard nonetheless seemed reasonably fair to Bush and Gore alike (although both maintained otherwise). Certainly there was no unfairness to Gore. It follows, as the night the day, that the standards (or nonstandards) used in Broward and Miami-Dade were not credible or fair to Bush.

(This seems to have eluded the Florida Supreme Court's four-member majority, which perhaps was trying to make a virtue of standardless chad-counting.)

If the Broward and Miami-Dade recounts had been fair, Gore's net gains would have been reduced by about two-thirds—by some 378 votes (567 minus 189) in Broward and some 112 votes (168 minus 56) in Miami-Dade. The combined reduction in Gore's net gain would have been about 490 votes. Subtracting these 490 from the Gore total would have increased Bush's lead from 193 to about 683. And this is without factoring in the additional net gain of roughly 400 to 500 votes that the Bush attorneys expected to find by recounting technically flawed but otherwise valid overseas absentee military ballots—many of which had initially been thrown out at the request of the Gore camp.

Another way of looking at it: Had the Democratic officials who ran the manual recount in Palm Beach County also been in charge of Broward and Miami-Dade, Bush would have had an apparently insuperable lead in the range of about 683 votes to 1,183 votes (if 500 more overseas ballots were counted). Conversely, had the Democratic officials who ran the Broward recount also been in charge of Palm Beach, they would have found a net Gore gain there of an additional 352 votes (176 times two) on top of the 176 credited to Gore by the Palm Beach officials. That would have put Gore some 159 votes (352 minus 193) ahead of Bush, unless Bush could pick up overseas ballots.

The bottom line is that even if one assumes that the Florida court was trying to be evenhanded, the election's outcome, under its standardless approach, would have depended not on who won more real votes, but on who was "recounting" (interpreting, really) the ballots.

It is also fairly clear that the Florida court's late-afternoon Dec. 8 decision had set the stage for the Florida courts to railroad through a Gore victory by Dec. 12 (if Gore were to pull ahead). This would have left Bush without even a fraction of the time necessary for a fair hearing on his evidence that any Gore "lead" was an illusion based on phony votes-and no time at all for appeals.

As implemented by Judge Terry Lewis, the Florida Supreme Court's decision gave short shrift to Bush's basic right to judicial review of the thousands of disputed ballot-interpretation decisions made by (among others) openly partisan Democratic officials. In a series of late-night rulings hours after the Dec. 8 decision, Judge Lewis refused to suggest (or hear evidence on) what chad-counting standard vote-counters should use; assigned hundreds of untrained counters to plunge into this world of standardless chad-interpretation, without even requiring that they be nonpartisan; refused to require that a record be kept of chad-interpretation decisions, thereby making appeals virtually impossible; ignored Bush's request for a recount of those hundreds of rejected overseas military ballots; and shrugged off claims that some Gore votes would inevitably be counted twice.

In short, Judge Lewis understood his marching orders: Damn due process. Full speed ahead. So, it seems, did a majority of the U.S. Supreme Court.


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More from National Journal.

More on politics and society in Atlantic Unbound and The Atlantic Monthly.

Stuart Taylor Jr. is a senior writer and columnist for National Journal and a contributing editor at Newsweek. This column appears every week in National Journal, a weekly magazine covering politics and government published in Washington, D.C.

For information on National Journal Group publications, see NationalJournal.com.

All material copyright © 2000 by The Atlantic Monthly Group. All rights reserved.
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