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It's Official Gore Should Be President
Gore Would Have Won The Recount (Judge Terry Lewis)

11-27-2001, Source:

Newsweek Reveals Huge Reporting Errors Will Raines Clarify?

Criticism and ridicule of the newspaper election "consortium" mounted over this holiday weekend, as freshly-revealed documents reported in Newsweek definitively proved that Al Gore would have bested George W. Bush in the 2000 election but for the intervention of the Supreme Court.

As the Newsweek documents show, Judge Terry Lewis was prepared to count the so-called overvotes in Florida regardless of what the Gore lawyers had requested. It was Lewis whom the Supreme Court shut down with its notorious partisan decision in Bush v. Gore. Counting those "overvotes," the consortium figures show, would have resulted in a Gore victory. Hence, the Supreme Court most certainly DID prevent the man whom the voters had elected from being inaugurated president -- a political and historical fact of the utmost gravity.

The New York Times, like the rest of the media "consortium" that had completed the Florida recount along with the National Opinion Research Center, reported exactly the opposite in its review of the recount's findings.

The Times, in particular, claimed point-blank that, had the Supreme Court not intervened, the Bush forces would have prevailed anyway. That claim has now been utterly refuted, mere days after the Times made it. Had the Supreme Court not intervened, Judge Lewis would have counted the overvotes -- and Gore would have won.

All of the media consortium reporters are at fault, but the Times, as the national "paper of record" and as the newspaper that played up the Supreme Court angle above all, bears special responsibility.

Here is a major political story of historic importance which the Times had plenty of time to think over and report. And the Times, pathetically blew it -- leaving Michael "Spikey" Isikoff of Newsweek (of all people) to beat them to the real story and expose their shoddiness.

Normally, reputable news organizations, confronted with such overwhelming evidence of their errors, issue some sort of clarification to their readers, if only to salvage their credibility.

Hence, speculation has been rising at this time of thanks and rededication about whether Howell Raines will do the decent thing and clarify the Times's bum reporting on the election recount.



The Final Word?
New documents raise questions about news media’s findings on the 2000 presidential election

By Michael Isikoff

Nov. 19 — After spending nearly $1 million, a consortium of big news organizations last week rendered what it once thought would be final word on last year’s bitterly contested Florida recount.

THE DECISION: a split verdict.

To the chagrin of Democratic partisans, the consortium proclaimed Bush still would have won the apparently limited statewide recount underway last December 9 even if the U.S. Supreme Court had not swooped in and stopped it. But if all disputed ballots had been manually counted—something, ironically, neither side had even asked for—Al Gore could have eked out a narrow victory.

That, at least, is how the story got played last week in front page stories in The New York Times, Washington Post and other newspapers that participated in this curious historical exercise. (Newsweek was briefly part of the consortium but dropped out because of scheduling conflicts before the project was completed.)

But is that really the last word?

Don’t count on it.

Buried deep in the files of the mammoth Florida litigation, Newsweek has uncovered hastily scribbled faxed notes written by Terry Lewis, the plain-speaking, mystery-novel writing state judge in charge of the Florida recount, that potentially changed the calculations rather substantially.

The previously undisclosed notes lend firm documentary support to recent comments by Lewis that he might well have expanded the Florida Supreme Court-ordered statewide recount of “undervotes”—the disputed ballots in which machines did not record any vote for president. The notes show that—just hours before the U.S. Supreme Court issued its order—Lewis was actively considering directing the counties to also count an even larger category of disputed ballots, the so-called “overvotes,” which were rejected by the machines because they purportedly recorded more than one vote for president.

This is the group of disputed ballots that the consortium has now found that—had they been manually recounted—might have yielded a rich treasure trove of votes for Gore, enough even to put him over the top.

“Judge, if you would, segregate ‘overvotes’ as you describe and indicate in your final report how many where you determined the clear intent of the voter,” Lewis wrote in a note to Judge W. Wayne Woodard, chairman of the Charlotte County Canvassing Board on the afternoon of December 9, 2000. “I will rule on the issue for all counties, Thanks, Terry Lewis.”

The issue had arisen that crazed weekend in December because many of the statewide canvassing boards found themselves confused when they sat down to implement the State Supreme Court order. The court’s opinion directed them to visually inspect and then manually recount their “undervotes” to see if any of them reflected “the clear intent of the voter”—the standard the court said was the guiding principle of state election law.

One of those so confused was the canvassing board of Charlotte County, in southwest Florida. In a memorandum faxed to Lewis in Tallahassee at 1:49 p.m. that Saturday, Woodard, chairman of the board, noted that, under its optical scanner voting system, Charlotte county had more “overvotes” than undervotes. “This can result from a number of reasons,” Woodard wrote, and then added: “but a manual review of the ballots can in many overvote instances determine the ‘clear intent’ of the voter.” Woodard wanted to know: “Is the Board restricted to the ‘non-votes’ or ‘undervotes’ or should the Board manually review the overvotes?”

The Charlotte County board wasn’t the only one posing the question. Faxes located in the files of the Leon County courthouse where Lewis sits show that other canvassing boards were confronting the same issue—and dealing with it in different ways. One canvassing board, in Lafayette County, faxed a letter to Lewis at 12:48 p.m. that afternoon informing him that they had already twice counted its “overvotes” by hand and were recertifying its findings.

The chairman of the canvassing board in tiny Santa Rosa County even faxed a disputed “overvote” ballot to Lewis at 11:55 a.m. It showed a voter who had marked his ballot with an arrow pointing toward Bush and then also (apparently mistakenly) marked it with another arrow pointing toward Harry Browne, the Libertarian Party candidate. The voter then wrote over the arrow pointing to Browne the word “no.” The Santa Rosa board requested Lewis’s “immediate opinion” on whether such a ballot should be counted—even though it wasn’t an “undervote.”

Lewis’s faxed handwritten reply: “For any votes like this, make a separate stack...and advise me in final report of those that you consider to be a ‘clear indication of the voters’ intent’ even though its not a non-vote or undervote.”

When first asked by Newsweek about the “overvotes” issue last April, Lewis directed a reporter to the faxed notes— and cited the uncounted Bush-Browne ballot in Santa Rosa County as a prime example of why “overvotes” should have been looked at. “I would have addressed that issue,” Lewis told Newsweek at the time, adding that he had even scheduled a hearing on the issue for the following day Sunday. (The hearing became moot once the U.S. Supreme Court stayed the recount at 2:45 p.m. Saturday.)

“Logically, everything the Florida Supreme Court said was, ‘You have to look at the clear intent of the voter,’” Lewis said. “Logically, if you can look at a ballot and see, this is a vote for Bush or this is a vote for Gore, then you would have to count it....Logically, why wouldn’t you count it?”

Lewis has repeated that he planned to review the issue that weekend in interviews with others, including the Orlando Sentinel (which published them for the first time in a story on Nov. 12). And if he had so ordered the counties to count the “overvotes,” would that have made Al Gore president?

The news consortium review suggested the answer might be “yes.” As the consortium counted the ballots, Bush would have won the statewide recount of undervotes by 243. But the consortium found that a manual inspection of the approxmiately 113,820 overvotes yielded hundreds of extra votes for Gore—primarily because they occurred most frequently in counties with more black and lower-income voters who have less experience with voting and, in some cases, were apparently penalized by poor ballot design. By one consortium count, a full statewide count of both undervotes and overvotes would have resulted in Gore winning by 171 votes.

But as one Bush lawyer put it this week, “This is never never land.” Had Lewis directed the counties to begin counting the overvotes, Bush lawyers—and possibly even Gore lawyers—would have immediately jumped in and challenged his order as going beyond the boundaries of the State Supreme Court. The challenge would have created more chaos, eaten up more time and probably have required the State Supreme Court to convene another hearing, and issue another ruling, thereby adding to the circus atmosphere surrounding the Florida battle.

As even Ron Klain, the lawyer in charge of the Gore forces put it in a panel discussion Saturday, efforts to reconstruct who really would have won the Florida recount are “like stopping a football game in the third quarter” and then reconvening it with the same teams a year later to try and decide who won.

Then there is another small matter overlooked by the consortium: the numbers don’t add up. The consortium handed over the job of counting the disputed ballots to the National Opinion Research Center (NORC) at the University of Chicago, which in turn employed 153 ballot examiners to visually inspect the ballots in all of Florida’s 67 counties. In all, the NORC counters were able to inspect 175,010 disputed ballots that the counties identified as having gone uncounted or rejected.

But those 175,010 uncounted votes are 1,436 ballots less than the 176,446 ballots that, the news organizations independently determined, had originally been reported by the counties as rejected or uncounted on election night.

What explains the discrepancy? Nobody can say for sure. Kirk Wolter, senior vice president at NORC, told Newsweek that each time the counties got asked to identify their uncounted ballots, they would come up with slightly different numbers. “Each time, they did it, it turned out a little different,” Wolter said. The Dade County elections supervisor last week told the conservative journal Human Events that election workers had difficulty trying to sort out ballots as they were run through county voting machines.

So does that throw a major league curveball into all the conclusions reported last week by the consortium? “I’m not going to quarrel with that,” Wolter said. “There’s certainly uncertainty about the results. There’s no question about that.”

Just like, some might say, the election itself.



Update: Hot Recount Docs!
Written evidence that Gore might have won-and that the NYT blew it.
By Mickey Kaus
Posted Monday, November 19, 2001, at 5:06 PM PT

Several valued kausfiles readers have emailed to suggest I was naive to argue that Gore-contrary to the New York Times ' spin-might well have won the court-aborted Florida recount. My argument was that, had the recount been allowed to go forward, supervising Judge Terry Lewis might have decided to count the crucial "overvotes"-double-marked ballots that, the recount shows, would if examined have given Gore a narrow victory.

I had relied on an Orlando Sentinel story quoting Judge Lewis-from an interview conducted "earlier this year" in which Lewis said he'd have been "open to" counting the overvotes.

Wasn't it possible, my skeptical readers noted, that Judge Lewis was just saying this to the Sentinel months after the election, maybe in an attempt to make himself look good-or to tell the Sentinel reporters what they wanted to hear? After all, the Sentinel had discovered the "overvotes," and Lewis would look pretty bad if he said, "Yeah, but I wasn't going to even consider counting them even though they're valid votes." How could I be sure Lewis wasn't just spinning?

Answer: I wasn't sure. But now I am. Why? I've got proof.

Or, rather, Newsweek's Michael Isikoff found the proof, months ago, in the form of notes that Judge Lewis wrote on faxes he sent to two state canvassing boards.

Isikoff has now posted a story with this information on Newsweek's Web site. The annotated faxes show, in Isikoff's words, that "just hours before the U.S. Supreme Court issued [its order] Lewis was actively considering directing the counties" to count the overvotes. (One of these faxes is reprinted here-that's Lewis' handwriting in the upper right corner.) Specifically, in response to an inquiry from the Charlotte County Canvassing Board, Lewis writes:

If you would, segregate "overvotes" as you describe + indicate in your final report how many where you determined the clear intent of the voter. I will rule on the issue for all counties. Thanks

Here is clear, dated contemporaneous evidence that Lewis was indeed considering counting overvotes, just as he told the Sentinel. He had even directed that the overvotes actually be counted and the number of valid ballots be sent to him. A hearing had been scheduled the following day to address the issue, Lewis told Newsweek.

Even worse, for the "Bush would have won" theory promoted by the New York Times and others, Lewis' statements to Isikoff indicate a pro-overvote ruling would have not only been possible but probable. Lewis told Newsweek:

Logically, if you can look at a ballot and see, this is a vote for Bush, or this is a vote for Gore, then you would have to count it. . Logically, why wouldn't you count it? [Emphasis added.]

Indeed, since Lewis had already ordered the overvotes counted, with the totals reported to him, not counting them would have amounted to Lewis saying, "I know you have found these perfectly valid uncounted ballots, but I'm not going to let them count." It wouldn't have been easy to defend that position on the inevitable appeal.

(Keep in mind that Lewis was one of the few straight-shooters in the whole Florida saga. He gave Gore a big victory one day, and then gave Bush a big victory a few days later when he upheld Secretary of State Katherine Harris' decision to ignore some manual recounts. It's hard to dismiss him as a partisan hack.)

Had there in fact been a statewide re-examination of the overvotes, Gore would have won-according to the media recount (which was, admittedly, not precise)-by a margin ranging from 42 to 171 votes.

It's now clearer than ever that, when Ford Fessenden and John Broder wrote confidently that "George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount . to go forward," the two Times reporters didn't know what they were talking about.

P.S.: Isikoff's evidence is embarrassing not only to the Times and to Bush (who we now know needed the U.S. Supreme Court) and to Gore (who foolishly didn't ask for the crucial overvotes to be counted). It's also embarrassing to ... Jeffrey Toobin! Toobin wrote an entire, 280-page pro-Gore book about the Florida recount and somehow didn't come up with the crucial evidence that would have made his case.



So Bush Did Steal the White House

By Robert Parry
November 22, 2001

George W. Bush now appears to have claimed the most powerful office in the world by blocking a court-ordered recount of votes in Florida that likely would have elected Al Gore to be president of the United States.

A document, revealed by Newsweek magazine, indicates that the Florida recount that was stopped last year by five Republicans on the U.S. Supreme Court would have taken into account so-called “overvotes” that heavily favored Gore.

If those “overvotes” were counted, as now it appears they would have been, Gore would have carried Florida regardless of what standard of chad – dimpled, hanging, punched-through – was used in counting the so-called “undervotes,” according to an examination of those ballots by a group of leading news organizations.

In other words, Bush lost not only the national popular vote by more than a half million ballots, but he would have lost the key state of Florida and thus the presidency, if Florida’s authorities had been allowed to count the votes that met the state’s legal requirement of demonstrating the clear intent of the voter.

The Newsweek disclosure – a memo that the presiding judge in the state recount sent to a county canvassing board – shows that the judge was instructing the county boards to collect “overvotes” that had been rejected for indicating two choices for president when, in reality, the voters had made clear their one choice.

“If you would segregate ‘overvotes’ as you describe and indicate in your final report how many where you determined the clear intent of the voter,” wrote Judge Terry Lewis, who had been named by the Florida Supreme Court to oversee the statewide recount, “I will rule on the issue for all counties.”

Lewis’s memo to the chairman of the Charlotte County canvassing board was written on Dec. 9, 2000, just hours before Bush succeeded in getting five conservative justices on the U.S. Supreme Court to stop the Florida recount.

Lewis has said in more recent interviews that he might well have expanded the recount to include those “overvotes.” Indeed, it would be hard to imagine that he wouldn’t count those legitimate votes once they were recovered by the counties and were submitted to Lewis.

The “overvotes” in which voters marked the name of their choice and also wrote in his name would be even more clearly legal votes than the so-called “undervotes” which were kicked out for failing to register a choice that could be read by voting machines.

Misguided Articles

This new information indicating that the wrong presidential candidate moved into the White House also makes a mockery of the Nov. 12 front-page stories of the New York Times, the Washington Post and other leading news outlets, which stated that Bush would have won regardless of the U.S. Supreme Court’s ruling.

Those stories were based on the hypothetical results if the state-ordered recount had looked only at “undervotes.” The news organizations assumed, incorrectly it now appears, that the “overvotes” would have been excluded from such a tally, leaving Bush with a tiny lead.

In going with the “Bush Wins” headlines, the news organizations downplayed their more dramatic finding that Gore would have won if a full statewide recount had been conducted in accordance with state law. Using the clear-intent-of-the-voter standard, Gore beat Bush by margins ranging from 60 to 171 votes, depending on what standard was used in judging the “undervotes.”

Beyond the big newspapers’ false assumptions about the state recount, the news stories showed a pro-Bush bias in their choice of language and the overall slant of the articles.

The New York Times, for instance, used the word “would” and even declarative statements when referring to Bush prevailing in hypothetical partial recounts. By contrast, the word “might” was used when mentioning that Gore topped Bush if all ballots were considered.

“A comprehensive review of the uncounted Florida ballots,” the Times wrote, “reveal that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward. Contrary to what many partisans of former Vice President Al Gore have charged, the United State Supreme Court did not award an election to Mr. Bush that otherwise would have been won by Mr. Gore.”

Two paragraphs later, the Times noted that the examination of all rejected ballots “found that Mr. Gore might have won if the courts had ordered a full statewide recount. … The findings indicate that Mr. Gore might have eked out a victory if he had pursued in court a course like the one he publicly advocated when he called on the state to ‘count all the votes.’”

Left out of that formulation, which suggests that Gore was a hypocrite, is the fact that Bush rejected Gore’s early proposal for a full statewide recount. Bush also waged a relentless campaign of obstruction that left no time for the state courts to address the equal-protection-under-the-law concerns raised by the U.S. Supreme Court in its final ruling on Dec. 12, 2000.

Note also how the Times denigrates as misguided Gore “partisans” those American citizens who concluded, apparently correctly, that the U.S. Supreme Court awarded the election to Bush.

The headlines, too, favored Bush. The Times’ front-page headline on Nov. 12 read, “Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote.” The Washington Post’s headline read, “Florida Recounts Would Have Favored Bush.”

Spreading Confusion

The pro-Bush themes in the headlines and stories were repeated over and over by television and other newspapers, creating a widespread belief among casual news consumers that Bush had prevailed in the full statewide recount, rather than only in truncated recounts based on dubious hypotheses.

Now, Judge Lewis’s memo undercuts both the tone and the content of those news reports. It is certainly not clear anymore that the state-ordered recount would have favored Bush. It also appears likely that the interference by the U.S. Supreme Court was decisive. Based on the new evidence, the major newspapers look to be wrong on both these high-profile points.

Beyond Gore’s narrow victory from the recoverable ballots, the news organizations concluded – but played down – that Gore lost thousands of unrecoverable ballots because of flawed ballot designs in several Democratic strongholds. Gore lost other votes because Gov. Jeb Bush’s administration disqualified hundreds of predominantly black voters who were falsely labeled felons.

The New York Times also reported that Bush achieved a net gain of about 290 votes by getting illegally cast absentee votes counted in Republican counties while enforcing the rules strictly in Democratic counties. Though the new recount tallies did not include any adjustments for these irregularities, the news organizations estimated that Gore lost tens of thousands of votes from these disparities, compared to Bush’s official victory margin of 537 votes.

For months, the leading news organizations have been bending over backwards to protect Bush’s fragile legitimacy, possibly out of concern for the nation’s image in a time of crisis. Yet, whatever the motivation for trying to make Bush look good, the evidence is now overwhelming that Bush strong-armed his way, illegitimately, to the presidency.

In the days immediately after the election, Bush obstructed a full-and-fair recount in Florida, even dispatching hooligans from outside the state to intimidate vote counters. When Gore pressed for recounts in the courts, Bush sent in lawyers to prevent the tallies. Then, after losing before the Florida Supreme Court and the federal appeals court, Bush ultimately got a friendly hearing from five political allies on the U.S. Supreme Court.

If Bush truly respected the precepts of democracy and what those principles mean to the world, he could have joined Gore in demanding as full and fair a Florida recount as possible. He could have accepted the results, win or lose.

Instead Bush opted for the opposite course, deciding that his getting the White House was more important than the voters having their judgment accepted, both nationally and in Florida. By refusing to hold Bush accountable for his key role in thwarting the voters’ will, the major news organizations are not doing the cause of democracy any service.

It turns out that the thousands of demonstrators who protested Bush’s Inauguration were closer to the truth when they shouted at his motorcade, “Hail to the Thief!”