Clouding the postmark matter

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 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 Harris' e-mail basket for approval. It was never released.

Instead, 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 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 unpaid volunteers, were deeply involved in drafting the Nov. 13 statement, as well as other major pronouncements 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 a recent interview that he served as Harris' "personal attorney" in the three weeks after the election, guiding her through major decisions.

Although Stipanovich declined to say whether he had had any contacts with the Bush campaign, Ginsberg said he spoke with 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," Ginsberg said.

The other strategist assisting Harris was Adam Goodman, a media consultant who had helped chart Harris' rapid ascension in the state Republican Party.

Typically, when it came to writing Harris' public statements, Stipanovich recalled, Goodman would start by gathering information from Harris' chief aides, like Clay Roberts, the director of the Division of Elections.

"Adam would knock off a draft, and I would comment on it," Stipanovich said. "Clay would put in his 2 cents. Katherine would tell us what she thought. And we would do it all over again."

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 Harris' 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 New York 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 Harris said she was unavailable for comment.

Stipanovich and 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 Harris' office about changing the rules. 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 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. 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.

Two-tier fight with no let up

To get as many of those ballots counted as possible, the Bush team created a strategy memorandum, recently obtained by the New York Times, that 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. Specifically, the Bush lawyers were told how to challenge "illegal" civilian votes that they assumed would be for Gore and also how to defend equally defective military ballots, the document shows.

In recent interviews, the Bush lawyers involved in overseas ballots insisted that they had not approached the issue with a two-tier strategy. Their overriding intent, they said, was to be rigorously consistent, even nonpartisan, in their arguments.

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 Gore was strong and another in counties carried by Bush.

County by county, and sometimes ballot by ballot, they tailored their arguments in ways that maximized 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 told the board in Collier County.

Then, 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."

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, Gore's running mate, Sen. Joseph Lieberman of Connecticut, 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, Florida Attorney General Robert A. Butterworth, a Democrat and Gore's state campaign chairman, 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 Bush to win still more absentee votes. But the end was in sight.

The deadline for counties to submit official vote totals came at 5 p.m. on Sunday, Nov. 26.

Even before Harris announced the final results, the Gore campaign had decided to formally contest Bush's victory in a lawsuit. One important question, though, was whether to challenge the overseas ballots. Campaign strategists tried to persuade 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 by Election Day. On the basis of the final official tally, that would have had Gore winning by 202 votes.

Gore rejected his aides' advice

Joe Sandler, who was the Democratic National Committee's general counsel, recalled how 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.' "