DAVID BARSTOW and DON VAN NATTA Jr.
July 15, 2001
A look at the controversial overseas absentee vote, and its possible impact on the 2000 Election.
In the morning after Election Day, George W. Bush held an unofficial lead of 1,784 votes in Florida, but to his campaign strategists the margin felt perilously slim. They were right to worry. Within a week, recounts would erode Mr. Bush's unofficial lead to just 300 votes.
With the presidency hanging on the outcome in Florida, the Bush team quickly grasped that the best hope of ensuring victory was the trove of ballots still arriving in the mail from Florida residents living abroad. Over the next 18 days, the Republicans mounted a legal and public relations campaign to persuade canvassing boards in Bush strongholds to waive the state's election laws when counting overseas absentee ballots.
Their goal was simple: to count the maximum number of overseas ballots in counties won by Mr. Bush, particularly those with a high concentration of military voters, while seeking to disqualify overseas ballots in counties won by Vice President Al Gore.
A six-month investigation by The New York Times of this chapter in the closest presidential election in American history shows that the Republican effort had a decided impact. Under intense pressure from the Republicans, Florida officials accepted hundreds of overseas absentee ballots that failed to comply with state election laws.
In an analysis of the 2,490 ballots from Americans living abroad that were counted as legal votes after Election Day, The Times found 680 questionable votes. Although it is not known for whom the flawed ballots were cast, four out of five were accepted in counties carried by Mr. Bush, The Times found. Mr. Bush's final margin in the official total was 537 votes.
The flawed votes included ballots without postmarks, ballots postmarked after the election, ballots without witness signatures, ballots mailed from towns and cities within the United States and even ballots from voters who voted twice. All would have been disqualified had the state's election laws been strictly enforced.
The Republican push on absentee ballots became an effective counterweight to the Gore campaign's push for manual recounts in mainly Democratic counties in southern Florida.
In its investigation, The Times found that these overseas ballots - the only votes that could legally be received and counted after Election Day - were judged by markedly different standards, depending on where they were counted.
The unequal treatment of these ballots is at odds with statements by Bush campaign leaders and by the Florida secretary of state, Katherine Harris, that rules should be applied uniformly and certainly not changed in the middle of a contested election. It also conflicts with the equal protection guarantee that the United States Supreme Court invoked in December when it halted a statewide manual recount and effectively handed Florida to Mr. Bush.
After being told of The Times's findings, Ari Fleischer, the White House spokesman, said : "This election was decided by the voters of Florida a long time ago. And the nation, the president and all but the most partisan Americans have moved on."
The Times study found no evidence of vote fraud by either party. In particular, while some voters admitted in interviews that they had cast illegal ballots after Election Day, the investigation found no support for the suspicions of Democrats that the Bush campaign had organized an effort to solicit late votes.
Rather, the Republicans poured their energy into the speedy delivery and liberal treatment of likely Bush ballots from abroad. In a Tallahassee ``war room'' within the offices of Ms. Harris, veteran Republican political consultants helped shape the post-election instructions to county canvassing boards. In Washington, senior Bush campaign officials urged the Pentagon to accelerate the collection and delivery of military ballots, and indeed ballots arrived more quickly than in previous elections. Republicans on the House Armed Services Committee helped the campaign obtain private contact information for military voters.
Republicans provided their lawyers with a detailed playbook that included instructions on how to challenge likely Gore votes while fighting for the inclusion of likely Bush votes. In some counties where Mr. Gore was strong, Bush lawyers stood by silently while Gore lawyers challenged overseas ballots, even likely Gore ballots.
The effectiveness of the Republican effort is demonstrated by striking disparities in how different counties treated ballots with similar defects. For instance, counties carried by Mr. Gore accepted 2 in 10 ballots that had no evidence they were mailed on or before Election Day. Counties carried by Mr. Bush accepted 6 in 10 of the same kinds of ballots. Bush counties were four times as likely as Gore counties to count ballots lacking witness signatures and addresses.
In reconstructing the story of the absentee vote, The Times collected copies of virtually all the overseas ballot envelopes that arrived after Election Day and built a comprehensive database for statistical analysis. The Times also examined thousands of pages of election documents and canvassing board meeting transcripts and interviewed more than 300 voters in 43 countries.
Because the ballots themselves are separated from the envelopes containing voter information, it is impossible to know whether the outcome of the election would have been different had the flawed ballot envelopes been treated consistently.
The Times asked Gary King, a Harvard expert on voting patterns and statistical models, what would have happened had the flawed ballots been discarded. He concluded that there was no way to declare a winner with mathematical certainty under those circumstances. His best estimate, he said, was that Mr. Bush's margin would have been reduced to 245 votes. Dr. King estimated that there was only a slight chance that discarding the questionable ballots would have made Mr. Gore the winner.
Separate from this investigation, a consortium of newspapers, including The Times, has hired experts to examine all ballots cast in Florida to see whether the official count was affected by faulty voting machines. The results are expected later this summer.
Many of the 680 flawed ballots in the analysis of the overseas envelopes had multiple defects, so the total number of flaws exceeds the number of defective ballots. The following questionable ballots were found :
Canvassing board members struggled to strike a balance between counting as many votes as possible and safeguarding against fraud. Decisions were difficult, particularly with ballots that appeared to be from legitimate voters yet did not comply with the rules. In some cases, board members said they had used common sense and cited a Florida court decision that gave them some "latitude of judgment." For example, the boards accepted 87 overseas ballots that arrived without a postmark a day or two after Election Day, judging that they most likely had been cast before Nov. 7.
Still, this benefit of the doubt was given to such ballots more than three times as often in counties carried by Mr. Bush, according to the Times database.
Both parties quickly recognized the importance to Mr. Bush of the uncounted overseas ballots, especially those from military installations. But the Democrats were preoccupied, particularly with their pursuit of manual recounts in several heavily Democratic counties. And their strategy for absentee ballots, which consisted of challenging as many overseas ballots as possible, backfired after they were accused of disenfranchising men and women in uniform.
The Republican effort on the absentees, by comparison, was methodical and unrelenting.
Benjamin L. Ginsberg, national counsel to the Bush campaign, recalled those days as being ``as hardball a game as any of us had ever been involved in.
``For any given five-minute period, we were confident we were going to hold on to the lead, and for any given five-minute period we were confident we were going to lose it all.''
The canvassing board members also have sharp memories of those days. Judge Anne Kaylor, chairwoman of the Polk County board, said the combination of Republican pressure and court rulings caused it to count some ballots that would probably have been considered illegal in past years.
``I think the rules were bent,'' Judge Kaylor, a Democrat, said. ``Technically, they were not supposed to be accepted. Any canvassing board that says they weren't under pressure is being less than candid.''
Mr. Ginsberg said, ``We didn't ask anybody to do anything that wasn't in the law as it existed on Election Day.''
Florida's certified election results, listed on the Florida Department of State's Web site, show that the Republicans' sense of urgency was justified. Although Mr. Bush appeared to hold a fluctuating lead throughout the 36 days of recounts, the Web site shows that without the overseas absentee ballots counted after Election Day, Mr. Gore would have won Florida by 202 votes, and thus the White House. But no one knew that until the 36 days were over; by then, it was a historical footnote.
Plotting Strategy To Protect a Lead
By midday on Wednesday, Nov. 8, Mr. Bush's aides were already plotting strategy on overseas ballots. Their first thoughts were about the potential for fraud, according to interviews and internal strategy documents. Might Democrats now quietly - illegally - reach out to overseas supporters, particularly in Israel, and urge them to send in their ballots? Could the Clinton-Gore administration interfere with the delivery of ballots from Navy ships, military installations and American embassies?
``The opportunities with absentee ballots via the postal delivery and retention process could pose a significant threat to the outcome of the election of the United States,'' Brigham A. McCown, a Bush lawyer, warned in a memorandum to campaign strategists that week. His concern grew, he said, when he found a photograph of a smiling Al Gore on a postal union Web site.
Although most of the overseas ballots had already been counted on Election Day, Florida is among a handful of states that give extra time for ballots to arrive from around the world. Unlike domestic absentee votes, which must arrive by Election Day, the deadline for overseas ballots was Nov. 17.
By 4 p.m. the day after the election, the Bush campaign had begun a pre-emptive strike, faxing a letter to each of Florida's election supervisors. Under Florida law, candidates and parties can obtain the addresses of overseas voters. But to make it difficult for Mr. Gore's campaign to track those voters, Bush aides wanted the supervisors to reject any post-election requests for the identities of voters who had not yet sent in ballots.
``We believe that such a request could only be made for an illicit, fraudulent and improper purpose,'' William R. Scherer, state co-chairman of Lawyers for Bush, wrote.
But elsewhere, the Bush team was itself exploring the legality of late voting - not by Floridians in Israel but by members of the military, who, according to its internal memorandums, were ``presumed'' to ``represent conservative electors.''
On Thursday, Nov. 9, Jeff Phillips, veterans' coalition director for the Bush campaign, sent an e-mail message to Samuel F. Wright, a Republican lawyer and an expert on overseas military voting. Mr. Phillips asked in the message: ``Can a service member vote in FL (especially after Nov. 7); i.e., can a sailor on the USS Tarawa cast a write- in vote November 10?'' In his e-mail response, Mr. Wright cited Florida law, which makes clear that late voting is illegal.
``It finally came down to us finding out what was legal and doing what we could,'' Mr. Phillips said. ``And if anything was not legal, we didn't do it.''
That same day, Mr. Gore asked that four Democratic counties do manual recounts, a prospect further endangering Mr. Bush's lead. ``As soon as the Gore people said, `We want to count all the votes, but only in our counties, with our Democratic-dominated counting boards doing the counting, without any set standards, making up new rules of the game after the election,' that was a sign to us that this was going to be a ballot-by- ballot battle and we could take nothing for granted,'' Mr. Ginsberg, the Bush campaign counsel, said.
With the terrain shifting so rapidly, Mr. Ginsberg assembled a task force of political strategists and corporate lawyers to focus exclusively on overseas voters.
To manage the political strategy, the Bush team enlisted J. Warren Tompkins III, the consultant who had helped Mr. Bush fend off Senator John McCain in the bitter South Carolina primary. David Aufhauser, a Washington lawyer and Mr. Tompkins's old friend, was to manage the legal strategy.
``There were two first things of concern,'' Mr. Aufhauser, now general counsel of the Treasury Department, said. ``One, were military ballots going to be properly counted? And two, were there overseas ballots that should be disqualified?''
To find out, Mr. Aufhauser and Mr. Tompkins sent lawyers and campaign aides to election offices in all 67 counties. To the Bush campaign's relief, local election supervisors had paid little attention to its letter about keeping overseas voter information confidential. There, lawyers gathered the names, foreign addresses and political affiliations of every overseas voter. They tracked which ballots had been returned, and which ones had yet to arrive.
``We wanted to know everything about this group - whether they were military or civilian, Democrat or Republican,'' Mr. Tompkins said. ``And I'd send the numbers, constantly, back to Austin.''
The teams made two critical discoveries. First, despite predictions by some Democrats that 1,000 ballots would arrive from Israel, just a few dozen were trickling in; ultimately, only 64 arrived.
Far more troubling were reports about military ballots. In county after county, Bush observers noticed that military ballots were arriving without postmarks.
Under a well-established legal standard in Florida, all overseas ballots must bear clear evidence they were cast on or before Election Day and mailed from outside the United States. State law required all overseas ballots to have foreign postmarks. In addition, a state rule said that such ballots must have been either ``postmarked or signed and dated'' by Election Day.
But most of the ballots did not have dated signatures because only one of Florida's 67 counties even provided a spot on the ballot for a voter to write a date next to his or her signature. In past elections, with few exceptions, the boards had routinely insisted on a postmark as proof of timeliness.
This seemingly obscure postmark standard was suddenly of crucial importance to the Bush strategists. Hundreds of overseas ballots that they wanted counted met neither requirement - the envelopes had no postmarks, and the signatures had no dates.
Not only were ballots coming in without postmarks, the Bush team had also heard scattered accounts of ballots sitting in mailbags on the decks of Navy ships.
By day's end on Saturday, Nov. 11, the Bush campaign understood that defending against fraud alone was too limited a strategy. To take full advantage of Mr. Bush's support in the military, offensive measures would be needed too. And with Mr. Gore closing the gap in the recounts, Bush strategists said in interviews, they calculated that they would need a net gain of 1,000 votes among the overseas ballots to seal victory.
It was an ambitious goal. In 1996, Bob Dole beat Bill Clinton by just 208 votes among Florida's overseas voters. The Republicans decided they had to make sure as many military ballots as possible arrived in Florida in time to be counted on Nov. 17.
A Rush to Retrieve Military Ballots
Around the world, on Navy ships and military bases, in embassies and vacation homes, Florida's overseas voters were transfixed by the unfolding drama. Most could only watch and wait; by Election Day, they had already voted.
But after Nov. 7, some hurriedly mailed their ballots, unaware or unconcerned that late voting is illegal.
Aboard the George Washington, an aircraft carrier then in the Adriatic Sea, Michael J. Kohrt recalled fellow crew members gathering around television sets on the morning of Nov. 8. ``We saw Florida was deadlocked, and everyone on the ship said, `Whoa, I have got to get my ballot in,''' he said. ``A lot of guys voted late.''
The Times investigation found a substantial number of people who, like Mr. Kohrt, knowingly cast their ballots after Election Day. Of the 91 voters interviewed whose ballots had either missing or late postmarks, 30 acknowledged marking ballots late. Only four were counted. Mr. Kohrt's vote, which he said was for Mr. Gore, was among those rejected.
In the days after Nov. 7, both the Postal Service and the Pentagon worked hard to ensure the timely delivery of absentee ballots to Florida.
``We need to make sure our Sailors have their vote count,'' said a Nov. 10 Navy e-mail message that urged at least 118 ships to check for any remaining ballots.
The Pentagon soon faced pressure from the Bush campaign. Leading Republicans in Congress wrote letters and made calls. Mr. Ginsberg, the campaign's chief counsel, faxed a letter to Defense Secretary William S. Cohen, the only Republican in the Clinton cabinet, on Nov. 11. ``We fear that, unless those ballots are collected immediately, they will not be delivered on or before November 17,'' Mr. Ginsberg wrote.
Robert Tyrer, Mr. Cohen's former chief of staff, said that Mr. Ginsberg, a friend of Mr. Tyrer's, seemed to be ``laying down a marker'' for the Republicans. But, he added, the secretary's office was ``determined not to be involved in the politics of the matter.''
In the end, the vast majority of the ballots - 97 percent - arrived before the Nov. 17 deadline. In previous elections, according to records and interviews, as many as a third arrived after the 10-day window had closed.
But The Times investigation indicated that the push to get the ballots in quickly only aggravated a problem that had concerned the Bush camp : 17 percent of military ballots arrived without postmarks, despite military regulations that require all mail to be postmarked. There is no evidence that the Pentagon knowingly delivered ballots cast illegally after Election Day.
In interviews, Pentagon officials could not fully explain why so many ballots were arriving without postmarks. They noted that a survey conducted after the election found less than 1 percent of all overseas military mail arrived without a postmark.
But a General Accounting Office study in May found a range of problems with how the military handled the absentee ballot issue, including inadequate training and supervision in its voting program. As a result of that and mail problems, the report said, Florida officials received ballots without postmarks, or witnesses, or even signatures.
The lack of postmarks made it impossible for canvassing boards to answer the threshold questions that determined the validity of an overseas vote: Was the ballot indeed mailed from a foreign country? And was it mailed on or before Election Day?
The lack of postmarks also posed political problems for the Bush strategists. Some Bush advisers, still fearful of votes from Israel, were preparing to seek strict enforcement of the postmark standard, according to documents and interviews. The Bush campaign even dispatched Jim Smith, a former Florida secretary of state, to emphasize the postmarking rule at a news conference on Nov. 12.
``The privilege to vote abroad comes with the corresponding duty to follow practices adopted by the State of Florida to assure timely and fair elections,'' Mr. Smith said at the news conference.
But even as Mr. Smith spoke, Bush strategists were shifting gears. They realized that unless they could persuade some local election officials to set aside the state's rules on postmarking, hundreds of ballots from military personnel, a reliable voting bloc, would not be counted.
In a single phrase of federal law, they found the statutory tool by which the Bush team would seek to undo Florida's postmarking rules. The phrase was contained in the Uniformed and Overseas Citizens Absentee Voting Act, a 1986 federal law intended to make overseas voting easier. One part of the law, a directive to postal officials, states that overseas ballots ``shall be carried expeditiously and free of postage.''
Although the law said nothing about postmarks, in the view of Mr. Aufhauser, the Bush lawyer, those eight words demonstrated that Congress never intended to require postmarks on overseas military ballots.
The lawyers realized they were putting their faith in an untested legal theory. The same federal law emphasizes the importance of state election rules.
As a backup, they zeroed in on a 1975 Florida Supreme Court ruling that said as long as there were no signs of fraud, canvassing boards had some discretion to accept ballots with minor flaws, like putting a signature in the wrong place or omitting a witness's address. Mr. Aufhauser decided that the Republicans would try to push this argument further than it had ever been pushed to get military ballots counted.
This conflicted with the Bush strategy to thwart manual recounts. In public statements by James A. Baker III, the former secretary of state leading the Bush recount team, and in the campaign's legal briefs, the Bush team argued repeatedly that it was unfair and patently unconstitutional for Mr. Gore to seek liberal recount standards in Democratic strongholds ``after the game has already been played.''
``It is not fair to change the rules and standards governing the counting or recounting of votes after it appears that one side has concluded that is the only way to get the votes it needs,'' Mr. Baker said.
Clouding the Matter Of the Postmark
As secretary of state, Katherine Harris wields considerable influence over the conduct of elections in Florida. Her office, which includes the Division of Elections, writes election rules, issues binding interpretations of election law and offers informal advice to election supervisors. But given her role as co-chairwoman of the Bush campaign in Florida, her statements and legal positions during the South Florida recount battles drew inevitable and scathing criticism from Democrats.
On the day after the election, Division of Elections staff members drafted a press release titled ``Secretary Explains Overseas Ballot Procedures.'' It was meant to be a simple reminder from Ms. Harris, similar to those her predecessors had routinely sent out, that state election rules required overseas ballots to have been ``postmarked or signed and dated'' by Election Day.
By early that evening, the draft statement had been sent to Ms. Harris's e-mail basket for approval. It was never released.
Instead, Ms. Harris said nothing about the absentee ballots until Nov. 13, when she touched on them at the end of a televised statement that focused mainly on trying to bring an end to the South Florida recounts. In her statement, she said that the overseas ballots had to be ``executed'' - a vague word that could have meant either signed or both signed and dated - by Election Day and that they had to bear a foreign postmark. Then she added, ``They are not required, however, to be postmarked on or prior to'' Election Day.
Democratic strategists reacted with immediate suspicion, viewing that last line as a gift from Ms. Harris to her fellow Republicans.
``In our opinion, it was an effort by Katherine Harris to blur the rules,'' said Nick Baldick, a senior Gore strategist in Florida. ``And confusion about the rules would only help the Republicans get as many suspect ballots counted as possible.''
Two top Republican strategists, working as volunteers, were deeply involved in drafting the Nov. 13 statement, as well as other major pronouncements Ms. Harris made during the recounts.
One of the strategists, J.M. Stipanovich, a lawyer who had managed Jeb Bush's failed campaign for governor in 1994, said in an interview that he served as Ms. Harris's ``personal attorney'' in the three weeks after the election, guiding her through major decisions.
Although Mr. Stipanovich declined to say whether he had had any contacts with the Bush campaign, Mr. Ginsberg said he spoke with Mr. Stipanovich ``three or four times'' during the recounts. ``At the time it was never clear if he was asking me something in his role as working for Katherine Harris, which was certainly well known at the time, or just out of curiosity,'' Mr. Ginsberg said.
The other strategist assisting Ms. Harris was Adam Goodman, a media consultant who had helped chart Ms. Harris's rapid ascension in the state Republican Party.
Typically, when it came to writing Ms. Harris's public statements, Mr. Stipanovich recalled, Mr. Goodman would start by gathering information from Ms. Harris's chief aides, like Clay Roberts, the director of the Division of Elections.
``Adam would knock off a draft, and I would comment on it,'' Mr. Stipanovich said. ``Clay would put in his two cents. Katherine would tell us what she thought. And we would do it all over again.''
Mr. Goodman added that their aim was always to ``give it to people straight'' and that usually ``every word was parsed over.''
Most of this work was done on computers in a conference room just off Ms. Harris's office. Her lawyers now say that many of the records from these computers have been erased, a potential violation of Florida's public records laws, and they refused a request from The Times to examine the computers' hard drives.
But they did release two versions of the Nov. 13 statement, which show that the sentence that upset the Democrats - and seemed to make it easier to accept ballots with late postmarks - was not inserted until the final draft.
A spokesman for Ms. Harris said she was unavailable for comment. The Times began seeking an interview with Ms. Harris two weeks ago, but her spokesman, David Host, said that Ms. Harris would prefer to comment in a written opinion article after she returns from a trip to Argentina this month.
Mr. Stipanovich and Mr. Goodman said they could not recall how the wording on Florida's overseas ballot rules was drafted, and both said there were never any discussions in Ms. Harris's office about changing the rules. Mr. Roberts said the statement was just an effort to paraphrase the traditional rules. ``In retrospect,'' he said, ``sticking to the strict statutory language might have been more clear.''
Lawyers for Mr. Bush now say they too were unhappy with the statement. It had, after all, said explicitly that postmarks were required, calling only their dating into question. Mr. Aufhauser said he feared the statement would make it harder for the Republicans to push their argument that under federal law, postmarks were not required at all on military ballots.
July 14, 2001
Revising a Complex Approach to Challenging Ballots
Thanks to a network of local lawyers who had advised his brother Jeb, the governor of Florida, on judicial appointments, Mr. Bush had a ready source of politically connected legal talent to argue on his behalf before the 67 county canvassing boards. The campaign's preparations were meticulous. Six days before county officials were to begin examining the overseas ballots, Bush advisers were sending out detailed instructions on the legal intricacies of overseas voting. There were daily conference calls, spreadsheets to track ballots in each county, a phone number for emergency advice. One group of Bush lawyers christened itself the Overseas Absentee Ballot Task Force and even had its own letterhead.
Mr. Gore's top aides, preoccupied by recounts in South Florida, were poorly prepared by comparison. The Gore team, for instance, wanted its representatives in each county to estimate how many overseas ballots had flaws open to challenge. By the night before the counting, they had estimates from 10 of 67 counties.
Having assumed that Mr. Bush would win easily among overseas voters, the Gore strategy was predicated on knocking out overseas votes and fighting for the strictest readings of state law. Never mind Mr. Gore's repeated pledge to count every vote; His strategists calculated simply that the fewer overseas ballots counted the better.
It was left to Mark Herron, a Tallahassee election law specialist, to teach the Gore legal recruits the basics of overseas ballots, and on Wednesday, Nov. 15, Mr. Herron circulated a five-page memorandum that listed legal grounds for protesting overseas ballots when the canvassing boards reviewed them just two days later. Within a day, however, the Herron memorandum had fallen into the hands of the Bush lawyers, who instantly recognized its political value and later used it to discredit the Democrats' strategy on overseas ballots as an effort to disenfranchise voters.
``We were losing the public relations battle until we got the break with that stupid memo,'' said Mr. Tompkins, the senior Bush strategist.
But the Bush lawyers had a strategy memorandum of their own, recently obtained by The Times, that also set out detailed instructions for challenging overseas ballots. The 52-page document included all the information Bush lawyers might need to make their case before the canvassing boards, including a copy of Ms. Harris's Nov. 13 statement.
Unlike the single-minded approach of the Gore memorandum, the Bush instructions set forth a more adaptable, tactical approach aimed at achieving the largest possible net gain from overseas voters. Specifically, the Bush lawyers were told how to challenge ``illegal'' civilian votes that they assumed would be for Mr. Gore and also how to defend equally defective military ballots, the document shows.
The clearest illustration of the differing strategies was in the pre-printed protest forms that each campaign prepared for use with the canvassing boards as they scrutinized each ballot envelope for legal defects.
The Gore instructions included one all- purpose protest form; the Bush instructions included two. The first Bush form protested defective ballots just as the Gore form did and listed many of the same potential flaws -- missing witnesses, late postmarks, domestic postmarks. In an accompanying ``letter of instruction'' the Bush lawyers were told that it was essential to check for defects and that there was to be no flexibility on the question of missing postmarks. To be valid, the letter said, ballots ``must have'' a military or foreign postmark.
The second form, which was used to protest the exclusion of military ballots, demanded that canvassing boards count military ballots that arrived without postmarks, or with illegible postmarks, or even in some cases with United States postmarks.
``To the extent that Florida purports to require that envelopes contain postmarks,'' the instructions stated, ``then with respect to members of the military overseas, Florida law is inconsistent with - and pre- empted by - federal law requiring the expeditious delivery of overseas ballots.''
In addition, the Bush instructions contended repeatedly that civilian ballots were not entitled to the same leeway as military ballots - a distinction not found in either Florida election law or in the federal law that governs overseas voting. One example involved overseas ballots delivered by Fed-Ex or other commercial express mail services. ``Late shipment by civilians through such channels raises reasonable questions about the legitimacy of the ballot,'' the instructions said.
Asked why they prepared a protest form almost identical to the one they had criticized Mr. Gore for using, Mr. Ginsberg said, ``I'm not sure it was operative still when people went into the counting boards.''
Questioning Civilian Ballots, Defending Military Ballots
On Friday, Nov. 17, county officials across the state began counting the overseas votes, the only ballots not yet examined by man or machine.
By then Mr. Bush's unofficial 1,784-vote lead had been reduced to 300. That very day, the Florida Supreme Court had barred Ms. Harris from certifying any final results until the justices, all Democratic appointees, decided whether to allow hand recounts to proceed in South Florida.
The Bush lawyers involved in overseas ballots gave different responses to whether they approached that Friday with a two- tiered strategy. Mr. Ginsberg acknowledged that they had fought for military ballots while opposing ballots from civilians. But Mr. Aufhauser said, ``There was no such strategy to do something in Palm Beach that we did not do in the Panhandle.''
But a review of the transcripts, minutes and recordings of canvassing board meetings shows otherwise. The records reveal example after example of Bush lawyers' employing one set of arguments in counties where Mr. Gore was strong and another in counties carried by Mr. Bush.
County by county, and sometimes ballot by ballot, they tailored their arguments in ways that maximized Mr. Bush's support among overseas voters. They frequently questioned civilian ballots, for example, while defending military ballots with the same legal defects.
In Bush strongholds they pleaded with election officials to ignore Florida's election rules. They ridiculed Gore lawyers for raising concerns about fraud, while making eloquent speeches about the voting rights of men and women defending the nation's interests in remote and dangerous locations.
``If they catch a bullet, or fragment from a terrorist bomb, that fragment does not have any postmark or registration of any kind,'' Fred Tarrant, a Republican City Council member from Naples, Fla., told the board in Collier County, a conservative outpost in southwest Florida.
Making frequent and effective use of the protest form they had developed to defend military ballots without postmarks, the Bush lawyers succeeded in persuading three counties in the western tip of the Panhandle, all of them Bush strongholds, to disregard Florida's postmark rules.
The three counties, Escambia, Okaloosa and Santa Rosa, counted 72 overseas ballots without postmarks, 63 from members of the military.
``We had never done it before,'' Pat Hollarn, the veteran Okaloosa County supervisor, said in an interview.
In Santa Rosa County, Doug Wilkes, the election supervisor, tried to argue that ballots without postmarks should be rejected. ``The board always stuck to the rules, to the letter of the law of the State of Florida,'' he told his two fellow canvassing board members that Friday.
He was outvoted.
By contrast, in Democratic strongholds, Bush lawyers simultaneously worked to exclude as many likely Gore votes as possible.
There they spoke not of the right to vote but of the importance of following the letter of state election rules. The ``fundamental'' role of election officials is to detect ``anything that could affect the honesty or integrity of the election,'' Craig Burkhardt, a Bush lawyer, told the Broward County canvassing board. At one point, Mr. Burkhardt grew so angry insisting on his right to scrutinize voter signatures that a board member told him, ``Calm down, chill out.''
In Broward and in other Gore strongholds, Bush lawyers questioned scores of ballots, almost always from civilian Democrats but occasionally from members of the military. They objected to the slightest of flaws, including partial addresses of witnesses, illegible witness signatures and slight variations in voter signatures. In at least six cases, the Bush lawyers relied on the Republican protest form that was barely distinguishable from the infamous protest form designed by Mr. Herron, the Gore election law specialist.
Mr. Aufhauser said the Bush team had not encouraged such challenges. ``You have field commanders, and they have to rely on the people in the field,'' he said. ``In the 67 counties, I think we had substantial compliance with the directive that we be consistent.''
But many of the challenges were consistent with the instructions provided by Mr. Aufhauser. The Bush lawyers, for example, followed the campaign's guidance in selectively challenging federal write-in ballots.
These were special last-resort ballots to be used only when a voter's regular state ballot failed to turn up in the mail. Under federal law, they can be used only after the voter has first made a request for a regular ballot at least 30 days before the election.
In Bush counties, Republican lawyers argued that write-in ballots from military voters should be counted even when there was no record of a request. But in Broward County, where at least 119 federal write-in ballots arrived, Republican lawyers took the opposite position. ``Have we checked to see whether they've complied with the requirements of having requested 30 days prior?'' a Bush lawyer demanded. Eighty-one of them were rejected.
When ballots were defended, they were from military voters. ``I cannot believe that our service boys, fighting hard overseas, that their ballots would be disqualified,'' Mr. McCown, the Bush lawyer, told the Palm Beach County canvassing board.
``All right,'' Judge Charles E. Burton, the board chairman, replied dryly. ``We will file a protest and arrange for a violin.''
Later, in their reports to senior Bush aides, the lawyers listed rejected ballots under two categories, ``military'' and ``nonmilitary,'' and their differing approaches to civilian and military ballots are reflected by this finding: While canvassing boards accepted 30 percent of the flawed civilian ballots, they counted 41 percent of the flawed military ballots, according to The Times's database.
The duality of the Bush strategy was demonstrated in another way. In three South Florida counties, Miami-Dade, Broward and Palm Beach, boards rejected as illegal 362 of 572 overseas ballots that Friday. Most - including many military ballots - were thrown out without a word of protest from Mr. Bush's lawyers.
Some of their work was done by the Gore lawyers, who, true to their strategy, challenged hundreds of overseas ballots with little discrimination. They objected to ballots from Democrats, Republicans, civilians, military personnel - even in counties where Mr. Gore actually beat Mr. Bush among overseas voters.
Mixed Messages Concerning Postmarks and Patriotism
The Bush campaign's patriotic appeals were more persuasive in north Florida, home to several large military bases. In Panhandle communities like Pensacola, Fort Walton Beach and Jacksonville, almost everyone knows someone in the military. The deputy election supervisor in Jacksonville, a former Navy pilot, has a photograph above his desk of him in a fighter jet. In Fort Walton Beach, Ms. Hollarn has an office full of military memorabilia. For them and their fellow election officials, rejecting a single military vote was personally painful.
``Just heartbreaking,'' Ms. Hollarn said.
It was also politically difficult.
The Panhandle canvassing boards, made up mostly of elected officials, reflected the conservative, pro-military politics of their counties, and rejecting Bush votes - particularly those from the military - did not endear them to most of their constituents.
``Shame on Okaloosa County, on Florida and on you,'' a mother of three military sons wrote to Ms. Hollarn after the county rejected a handful of military ballots.
Ms. Hollarn, a staunch Republican and a stickler for rules, opted to accept ballots with missing postmarks, but only if they arrived by Nov. 13, six days after the election. It seemed only common sense, she said, to assume that these ballots were cast before Election Day, even if they did not comply with the letter of the law.
``You have no idea the soul-searching, and case-law-searching, that myself, my attorney and the canvassing board went through to come up with our final decision,'' Ms. Hollarn wrote in an e-mail response to the angry mother. For nearly two decades, she added, her canvassing board had rejected ballots with late or missing postmarks without any fuss.
Other Panhandle canvassing boards held the line on counting ballots with missing postmarks. ``What would prevent an elector overseas from voting after the date of the election?'' asked Rick Mullaney, a member of the Duval County canvassing board, which initially voted to reject such ballots.
But others, like the Escambia County canvassing board, accepted the Bush campaign's argument that federal law trumps state law. ``I'm not a great conflict-of-law scholar or anything,'' Judge Thomas E. Johnson, the canvassing board chairman, worried. ``Come on, I need some help here.''
The result was unequal treatment of ballots with the same flaws. While Bush counties accepted 70 of 109 ballots that arrived without postmarks within two days of the election, Gore counties accepted 17 of 63 such ballots.
In Alachua County, which was carried by Mr. Gore, the canvassing board's insistence on postmarks prevented it from counting the ballot of Jeff Livingston, a staff sergeant at an Air Force base in England who acknowledged voting for Mr. Bush after the election. His ballot, missing a postmark, arrived on Nov. 13, just three days after he dropped it off at the base post office. Under Ms. Hollarn's modified standards, his ballot would have been counted had it arrived in Okaloosa County.
In a climate of rampant confusion over how to judge overseas ballots, some election officials pointed fingers at Ms. Harris, saying she had done little to bring clarity or consistency to the application of Florida's overseas ballot rules.
The issue was one Ms. Harris was familiar with. In 1999 she ordered each of Florida's counties to enforce newly tightened absentee ballot rules in a uniform manner. She warned that ``differing treatment would no doubt disenfranchise some voters simply based on where they live in violation of federal and state law.''
Beyond missing postmarks, canvassing boards were confronted with the question of what to do with more than 300 ballots that arrived after the election with domestic postmarks. Many were postmarked in military towns like Norfolk, Va., or San Diego.
And dozens of these voters acknowledged that they were in fact inside the United States on Election Day.
Their ballots were plainly illegal under Florida law, which requires all absentee voters inside the United States and its territories to get their ballots in by Election Day.
Most canvassing board members knew next to nothing about the workings of the military mail. The Bush lawyers, some citing their own military backgrounds, had a ready explanation for all the military ballots with United States postmarks. They told boards that mail for overseas military members was routinely postmarked when it arrived in this country.
One supervisor who checked with Ms. Harris's office said he had received similar assurances.
According to mail officials, those assurances were wrong.
Military mail is postmarked at the point of origin - a ship or a base. Then, as with all international mail, it enters the United States only through special processing centers where mail is subject to customs inspections, but not postmarking.
Those centers, postal officials said, are not even equipped with postmarking machines.
Yet based on the faulty information, canvassing boards accepted dozens of ballots that arrived after the election from military voters stationed inside the United States.
And when the counting ended in the early hours of Nov. 18, Mr. Bush had gained 1,380 votes to Mr. Gore's 750 votes.
But Mr. Bush's strategists wanted even more.
Thanksgiving Reprieve for Rejected Votes
Hours after the last overseas absentee ballot was counted, the Bush campaign unleashed a full-scale legal and public relations offensive with a single aim : persuading selected Bush counties to reconsider hundreds of overseas military ballots rejected the night before.
The public relations campaign began when Gov. Marc Racicot of Montana, a Bush supporter, said that Democratic lawyers had ``gone to war'' against military voters.
Gen. H. Norman Schwarzkopf called it ``a very sad day in our country.'' Robert Novak, the conservative newspaper columnist, called the Herron memorandum a ``quickie guide for tossing out the serviceman's vote.''
The candidate himself took up the theme, calling on election officials to count more military ballots.
Almost immediately, the Democrats were in full retreat.
On Sunday, Nov. 19, Mr. Gore's running mate, Joseph I. Lieberman, appeared on the NBC program ``Meet the Press.'' Faced with a barrage of aggressive questions, he called on Florida's canvassing boards to reconsider their rejection of military ballots. The next day, the attorney general of Florida, a Democrat, said that local officials should ``immediately revisit this issue.''
This extraordinary political reversal, combined that week with new Republican lawsuits that asked 14 counties to reconsider rejected ballots, helped open the door for Mr. Bush to win still more absentee votes. A Democratic lawyer, Mitchell Berger, later referred to the additional Bush votes as ``the Thanksgiving stuffing,'' a label that stuck.
As a legal matter, the lawsuits were a failure; not a single judge agreed with the Bush campaign's argument that Florida's postmarking requirements were invalid. A federal judge in Pensacola ordered canvassing boards to reconsider several hundred federal write-in ballots, but his ruling came too late to affect the final results.
Bush lawyers found their most persuasive argument in a Florida Supreme Court ruling on Tuesday of that week - a decision that actually favored his opponent. In an order that allowed manual recounts to resume, the justices declared that the will of the voter should take precedence over ``hyper-technical reliance upon statutory provisions.''
Even as their colleagues appealed the ruling to the United States Supreme Court, Republican lawyers adopted the term ``hyper-technical'' as a rallying cry, demanding that local officials overlook a broad range of legal flaws.
The Republicans had one other weapon in their public relations arsenal. They enlisted Republican members of the House Armed Services Committee, who used their influence with the Pentagon to help the Bush campaign contact military voters whose ballots had been rejected.
By the end of the week, canvassing boards in about a dozen Republican-leaning counties had reconvened for a second round of counting. In each place, longstanding election rules were bent and even ignored. Boards counted ballots postmarked as many as seven days after the election, including some from within the United States. They counted two ballots sent by fax. Officials in Santa Rosa County even counted five ballots that arrived after the Nov. 17 deadline. Again and again, election officials crossed out the words ``REJECTED AS ILLEGAL'' that had been stamped on ballot envelopes.
In all, over the Thanksgiving week, the counties accepted 288 ballots that they had rejected days earlier.
In recent interviews, board members said they decided to meet again for a variety of reasons, ranging from intense pressure from their constituents to the specter of the Republicans' lawsuits, which had named individual members as defendants.
Just as Mr. Gore never sought manual recounts in Republican strongholds, Mr. Bush did not request a second look at overseas ballots in large Gore counties, like Miami-Dade and Broward, where 346 overseas ballots, including 164 from the military, were rejected and never given a second look. Instead, the Republicans fought pitched battles in smaller counties, like Pasco, where they had a better chance of picking up votes.
``It looks to me like we've got a lot of pressure here,'' Judge Robert P. Cole, chairman of the Pasco board, said as he faced a throng of cheering Republicans and more than a dozen Bush representatives. ``And to be honest with you, you know, I don't think this board should respond to that kind of pressure.''
Not a single Gore official bothered to attend the meeting.
``We felt our presence was not going to change what the canvassing board was going to do,'' said Michael Cox, then the chairman of the Pasco County Democratic Party. Mr. Cox added that the hour's drive from his home to the county building on a Sunday did not seem worth the effort. ``We were tired of it,'' he said.
Pasco County added 19 votes, giving Mr. Bush a net gain of 6.
There were other pressures exerted, too. A Republican lawyer told some canvassing board members that they faced federal prosecution and jail time if they persisted in rejecting overseas ballots. ``Disallowing these ballots would violate federal law, both in letter and spirit, and would subject the person so excluding these ballots to criminal sanctions,'' Edward Fleming, a Bush lawyer, wrote to officials in Santa Rosa County. The county accepted 38 of the 49 ballots it had previously rejected.
To give overseas residents plenty of time to vote, Florida officials mail out both a preliminary version of the absentee ballot and then, after the primaries, a final version. Voters are instructed to send in both, but the preliminary ballot is discarded if the final ballot arrives in time to be counted.
Yet for 19 voters - 15 of them Republican - Duval County election officials counted both ballots. Officials said it was a mistake, the product of long hours and the intense pressure to count every possible ballot.
One of the double voters, Nicholas Challen, 40, a senior chief petty officer in the Navy who cast his second vote from Jacksonville on Election Day, reacted with jubilation when told that both of his votes counted. He raised both arms as if he had just scored a touchdown and savored the two votes he had delivered to George W. Bush.
``Yes!'' he said, beaming.
When it was all over, the 14 counties involved in the ``Thanksgiving stuffing'' effort had given Mr. Bush a net gain of 109 votes. Overall, the overseas ballots provided Mr. Bush with a net gain of 739 votes over Mr. Gore. The final margin fell short of the Republicans' 1,000-vote goal.
But it was enough.
Supreme Court Steps In, But Not on Absentee Votes
On Sunday, Nov. 26, while some Bush counties were counting a handful of rejected overseas ballots, the canvassing board in Palm Beach County frantically raced to finish its manual recount of nearly a half- million ballots. The board was trying to meet a 5 p.m. deadline for counties to submit official vote totals. By 1 p.m., it was clear to Mr. Burton, the canvassing board chairman, that Palm Beach County would miss the deadline. On national television, Mr. Burton pleaded for more time.
Inside Ms. Harris's war room, aides debated whether to grant an extension. Ms. Harris refused to budge. ``Katherine's job,'' said Mr. Stipanovich, the Republican consultant advising Ms. Harris, ``was to bring this election in for a landing.''
When Palm Beach County finally concluded its recount, two hours after the deadline, Mr. Gore had picked up 176 votes. Ms. Harris refused to include those votes in the final certified total, which showed Mr. Bush winning by 537 votes.
``In the end,'' Mr. Stipanovich said, ``the Palm Beach vote didn't matter.''
But it might have made a difference, if 680 flawed overseas ballots had not been included in her official returns.
Even before Ms. Harris announced the final results, the Gore campaign had decided to formally contest Mr. Bush's victory in a lawsuit. One important question, though, was whether to challenge the overseas ballots. Campaign strategists tried to persuade Mr. Gore to do just that, saying it would allow Democratic lawyers to argue that the Republicans had benefited from the unequal treatment of absentee ballots.
There was another potential benefit. Under Florida law, if the number of improper absentee ballots exceeds the margin of victory, a judge can, under some circumstances, disqualify all absentee ballots arriving after the election and base the results on only those ballots cast and received by Election Day. On the basis of the final official tally, that would have had Mr. Gore winning by 202 votes.
Mr. Gore rejected his aides' advice.
Joe Sandler, who was the Democratic National Committee's general counsel, recalled how Mr. Gore explained his decision. ``I can give you his exact words : `If I won this thing by a handful of military ballots, I would be hounded by Republicans and the press every day of my presidency and it wouldn't be worth having.''
As the election contest wound its way through the courts, the Republicans pressed their argument that the manual recounts violated the Constitution's equal protection clause. In the United States Supreme Court, this contention provoked searching debate among the justices and the lawyers about the lack of consistent standards for counting dimpled ballots and hanging chads, and in its decision giving the election to George W. Bush, the court concluded that uniform treatment was a matter of fundamental fairness.
``Having once granted the right to vote on equal terms,'' the majority wrote, ``the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.''
The court did not consider the varying treatment of military and civilian votes. It did not address the unequal treatment of the 2,490 ballots that finally determined the election's outcome. Those issues were never raised.
Gore DID win Florida
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