Thursday, November 16, 2000 A.M. Breaking.

Click. Gore asks U.S. court not to intervene
Click. Palm Beach vote counters wait for signal from Supreme Court
Click. Broward count resumes today after Gore gains 7 more votes

TOP OF THE NEWS (9:10 a.m. San Francisco): Florida's Supreme Court will rule today on whether Harris can ignore revised county tallies, while the Bush campaign has gone to federal court seeking a halt to the recounts... Broward County continues its manual recount of 564,000 ballots despite Harris's announced refusal to accept late tallies, Miami Herald reports... In a personal statement Wednesday evening, Bush rejected Gore's recount proposal but said he would meet with Gore after the election is resolved. Gore's proposal "caught [Bush's team] by surprise," New York Times reports... A Democratic county commissioner in Palm Beach County is accused of manipulating ballots during the manual recount to increase Gore's total, AP reports... Republicans may challenge last week's recount in Gadsen County, Florida, which gained Gore a net 153 votes, Orlando Sentinel reports... Gore leads in Oregon by 4,233 votes with less than 10,000 ballots outstanding, AP reports... House Majority Whip Tom DeLay (R-TX) has advised congressional Republicans that they can reject a state's electoral votes if they think the results are tainted, New York Times reports... In a Washington Post commentary, retiring Sen. Robert Kerrey (D-NE) writes that "many irresponsible, inaccurate and strident statements have been made by partisans from both camps" in the presidential dispute... In Washington's Senate race, incumbent Republican Sen. Slade Gorton now leads Democrat Maria Cantwell by 8,325 votes... Rep. James Traficant (D-OH) may abandon his party and become the third sitting House independent, Roll Call reports... Rep. Patrick Kennedy (D-RI) may stay on as head of the Democratic Congressional Campaign Committee...

 Palm Beach County has court approval to resume a manual recount... 1,174 untallied Florida overseas absentee ballots have come into Escambia County, home of Pensacola's U.S. Navy air station, while 515 have come into Palm Beach County, USA Today reports... Florida still plans to certify a winner Saturday... NBC's Tim Russert: "We may have two winners on Saturday," if Florida Secretary of State Harris declares Bush the winner but Palm Beach County announces a large Gore gain... Sen. Tom Harkin (D-IA) wants Congress to use its constitutional authority to postpone the vote of the Electoral College past December 18 to allow for a statewide manual recount in Florida... Two Bush electors from South Carolina say they received telephone calls from unidentified persons asking them to vote for Gore in the Electoral College, Columbia State reports... Ex-Rep. Lee Hamilton (D-IN) has proposed a bipartisan panel of political leaders, possibly including Presidents Carter and Ford, and former senators Howard Baker and Sam Nunn, to broker a compromise settlement of the presidential election, Los Angeles Times reports...

JUDICIAL WATCH (Paul Jones' lawyers) have obtained permission to count the ballots with their own private inspectors, and are counting. Click.

THE MARCH TO THE SUPREME COURT! 11th Circuit Ready to Act on Florida Vote, Precedents Show

Fulton County Daily Report
November 15, 2000

The 11th U.S. Circuit Court of Appeals in Atlanta -- the next stop for the Bush campaign to halt hand recounts of Florida's presidential vote -- has already affirmed its right to intervene in an election.

The Bush campaign filed a notice of appeal with the 11th Circuit late Tuesday afternoon preserving the Republicans' right to challenge a U.S. district court judge's refusal to stop manual recounts of votes in Florida. A three-judge panel could take up the matter as early as today.

The 11th Circuit has interpreted the definition of what constitutes a federal election broadly. In 1999 a three-judge panel, including former Florida Supreme Court Justice Rosemary Barkett, affirmed the right of the federal courts to wade in on allegations of vote-buying in a Georgia county commissioner's race simply because there was an uncontested federal race on the same ballot. USA vs. McCranie, No. 97-9358 (11th Cir. March 12, 1999).

The text of that ruling would appear to give the 11th Circuit ample precedent to pull on its legal boots and wade into the Florida presidential fracas, Siegel vs. LePore, No. 00-9009-civ (M.D. Fla., Nov. 13, 2000).

"Whether federal jurisdiction exists in this type of fraudulent voting activities case is a question of first impression in this circuit," wrote Judge Joel F. Dubina, who authored the McCranie opinion for the three-judge panel. "As a starting point, we observe that the federal vote buying statute ... and the multiple voting statute ... plainly prohibit voting fraud 'in any general, special, or primary elections held solely or in part for the purpose of electing federal candidates.' " Citing a 1994 7th Circuit opinion, United States v. Cole, 41 F.3d 303 (7th Cir. 1994), Dubina noted, "The court held that federal jurisdiction exists even if the federal candidate is unopposed because fraud in a mixed election does have an impact 'on the integrity of the election.' "

That statement would seemingly lay to rest any protest that the presidential election in Florida is a state function that should be governed by the state, rather than the federal, courts. But McCranie involves blatant allegations of corruption. The 1996 candidates for the Dodge County Commission and for sheriff had set up tables inside the courthouse at opposite ends of the hall, where supporters on both sides openly bid for absentee votes. Buyers for both sides paid voters $20 to $40 after the voter cast his or her absentee ballot, according to the appellate opinion. Cash payments often occurred in the courthouse bathroom.

The Bush campaign's suit, on the other hand, states, "There is no allegation or evidence of voter fraud or of coercion or corruption," in Florida, and that fraud is not the campaign's reason for seeking to halt the recounts.

But in McCranie, the appeals panel interpreted federal election statutes broadly.

The Cole decision "correctly observed that the federal election fraud statutes were implemented to protect two aspects of a federal election: the actual results of the election and the integrity of the process of electing federal officials," Dubina wrote.

Citing a 5th Circuit case, United States v. Bowman, 636 F.2nd 1003 (5th Cir. Unit A. Feb. 1981) -- which is binding on the 11th Circuit because it was then part of the 5th Circuit -- Dubina noted, "The language in Bowman not only prohibits any fraudulent activity that affects the outcome of a federal election but also prohibits any activity that has the potential to affect 'the integrity and purity' of an election."

Nor has the appeals court shied in recent years from intervening in a close state election, regardless of whether a federal candidate appeared on the ballot.

In 1995, a three-judge panel including former Florida District Court Judge Gerald B. Tjoflat, Stanley F. Birch Jr., and J.L. Edmondson, all of them appointed by Republican presidents, asserted jurisdiction in a legal brawl over the counting of absentee ballots in Alabama in the race for state treasurer and chief justice of the Alabama Supreme Court.

Both races were hotly contested, and the candidates were no more than 200 to 300 votes apart. An Alabama circuit court judge had ordered that 1,000 to 2,000 absentee ballots that had been improperly filled out and were disqualified to be counted anyway. A federal judge in Alabama subsequently enjoined Alabama electoral officials from counting the contested ballots. His ruling was appealed.

In a split vote, the appeals panel affirmed the lower court's injunction preserving all the ballots and enjoining the Alabama secretary of state from certifying the election results. Then, it decided to pose a question to the Alabama Supreme Court as to whether certifying the contested absentee ballots was, in fact, legal.

The appellate panel defended its decision, stating, "The unnecessary delay that would result were we to leave the plaintiffs to their state court remedy would be particularly insidious: It would extend the time that the two offices at issue remain in limbo, hindering those offices in the handling of state affairs. Time is, therefore, of the essence."

Edmondson, a Reagan appointee who penned the Elian Gonzalez decision earlier this year, dissented. "Nothing is known in this case about whether the alleged illegalities have affected or will affect the outcome of the pertinent elections. Yet, today we plow into Alabama's election process and uphold a preliminary injunction that, in effect, overrules a pre-existing state court order which had directed that the contested votes be counted. And, instead, the federal courts (basically, stopping short the state election processes) order that the contested votes be not counted at all. This high level of federal activity seems unnecessary and, therefore, improper. So, I conclude that the district court abused its discretion. ... I would not interfere with the counting of the contested ballots."

But two months later, the same panel remanded the case to the district court for trial on the merits with a list of 17 questions to address after the Alabama Supreme Court opined that the contested ballots were, in fact, legal.

The district court judge eventually ruled that counting the contested ballots diluted the votes of those people who cast their votes in conformance with state law. He ordered the Alabama Secretary of State to certify the election results without the contested ballots. An appellate panel, this time composed of Floridians Tjoflat and Barkett, and Chief Judge R. Lanier Anderson III, affirmed the lower court ruling.

That issue of voter dilution also has been raised in the Bush campaign's federal suit. Because manual vote counts were instituted only in selected precincts and counties in Florida, allegedly without any uniformity in procedure or standards for ballot counting, the hand recounts would deny other voters outside those counties "the effective exercise of their right to vote and to have that vote counted in an equal and consistent fashion with all other voters in this election," the complaint states.

"If a manual recount gives effect to particular punched ballots or counts ambiguous ballots based on the canvassing board's subjective interpretation of a voter's intent, it has the effect of unconstitutionally diluting the votes of the other voters both in the affected counties and in the counties not subject to recount."

Continues the complaint, "Because the recount begun or about to begin by the defendants is limited to portions of only four counties, the voter plaintiffs who are not residents or voters in those four counties are being deprived of the rights accorded to voters by those counties and/or will have their votes diluted in violation of the 14th Amendment."


Ballot Recount: Many Things to Many People
Canvassing: Vague guidelines spur varied processes. At least 16 Florida counties failed to retabulate every vote.

By , Los Times Staff Writer 10/15/00

     TALLAHASSEE, Fla. -- When the call came from Tallahassee for every county in Florida to recount presidential ballots the day after last week's historic vote, Baker County elections supervisor John Barton and his local canvassing board took the easy way out.

     They simply checked the electronic memory of their computers, running the numbers again to see if they matched the results from the day before. Not a single ballot was re-scanned or inspected.

     Nor did it have to be.

     In Florida, it turns out, a recount doesn't mean the same thing to everyone.

     The state election guidelines covering the first-round statewide recount are so vaguely written that counties varied widely in the processes they used to recount ballots. A Times examination of last week's recount revealed that at least 16 of Florida's 67 counties failed to recount every ballot cast in the election. Some counties simply checked their computer vote tallies. Others just electronically re-scanned their absentee ballots. Some examined ballots in only a portion of their precincts.

     "There are a lot of gray areas," said DeSoto County elections supervisor Ronald Turner, where every ballot was run through the tabulating machines again. "It doesn't really say in the statutes just how you can do it."

     Florida law dictates that each canvassing board "examine the counters on the machines or the tabulation of the ballots cast" and "determine whether the returns correctly reflect the votes cast." It is silent as to whether individual ballots need to be examined.

     State election officials and the Florida secretary of state did not return calls Tuesday seeking comment.

     Baker's Remarks Put in Question

     The differing methods sanctioned by Florida officials appeared to undercut arguments by James A. Baker III, a lawyer for Texas Gov. George W. Bush's campaign, that last week's computer recount was more efficient and standardized than the manual recounts sought by lawyers for Democrat Vice President Al Gore.

     Consider what happened in Calhoun and Citrus counties, both small counties that use ballots similar to lottery ticket forms. Voters color in circles and the ballots are then run through a tabulator, which spits out any ballot that has no vote or more than one vote.

     When Calhoun, which is about 50 miles from Tallahassee, conducted its recount, the canvassing board merely reran the computer tapes for each tabulator. "We ran our tapes on our precinct counters. That was about all we could do," said county elections supervisor Martin Sewall. The recount found no mistakes.

     But in Citrus County on Florida's west coast, elections operation manager Maureen Baird found a way to reprogram the computers and scan every ballot again. The result after 14 1/2 hours: two more votes for Gore. "That is how a true recount should be done, by counting every single ballot," Baird said. "Trust me. What I'm saying is true."

     Most of the 16 counties that failed to actually recount ballots are in sparsely populated parts of North Florida, but they also include the metropolitan areas of Orlando and Jacksonville. Eleven of the 16 counties went for Bush.

     Florida's election officials blame the different definitions of recounts here on the variety of voting systems used by the counties. Most of the counties that chose to only check their computer memories use a newer, more sophisticated kind of balloting--similar to the forms used by students when they take their standardized college entrance exams--than the punch cards used in Palm Beach County.

     Bay County in Florida's Panhandle uses the more advanced system. Elections supervisor Melanie Boyd said that if her system had been used in Palm Beach County, the folks who voted for two candidates would have learned of their mistake at the polls.

     "With our system, the voter gets the opportunity to correct a mistake if they choose to," she said. In fact, she noted, 86% of the people who accidentally voted for two candidates threw out their ballots at the polls and voted again. Bay's canvassing board checked its computer memory to satisfy the recount.

     So did nearby Walton County. "We did not do a manual recount. We pulled the memory card and ran the tapes again," said elections supervisor Melissa Beasley, who said she would feed the ballots back into the machines only with a court order. "We're thoroughly convinced that our equipment is some of the best."

     Use of Memory Tapes Is Defended

     Okaloosa County elections supervisor Patricia Hollarn defended using the memory tapes to do a recount. "There were no irregularities reported to me at any time during the election or since," she said, adding that Bush so overwhelmingly carried the Panhandle county that a recount really shouldn't have been necessary.

     Polk County in central Florida initially just checked its computer tapes. But when the numbers didn't add up, the canvassing board decided to run the ballots through the machines again, face side up.

     "My definition of recount means recounting," said County Judge Anne Kaylor, chairwoman of the canvassing board there.

     Polk County knows all too well the benefits of actually recounting ballots. Commissioner Marlene Young won her seat by 18 votes after a court-ordered recount four years ago.

     How, she asks, can a recount be a recount if a canvassing board "never touched the ballots?"

     In Manatee County, south of Tampa, election officials felt the same way. They fed all their presidential ballots through machines again. "We took the long way," said Nancy Bignell, assistant to the elections supervisor. She said the county could have read the memory cards, but "we felt if we did it this way we would be sure."

     The canvassing board in Putnam County near Gainesville set up nine machines and ran each ballot through them. Elections supervisor Don Hersey said the board knew it had a choice on how to conduct the recount, but decided to check every ballot. "They felt like, with a race of this magnitude and closeness, we would go back and do it," he said. As a result, Bush gained eight votes and Gore got 11 more.

     The Times' survey of 63 of the 67 counties found that most that changed their vote totals found those mistakes by running individual ballots through machines.

     In Clay County, for instance, the board checked its memory cards from the precincts and found no deviations. But they re-scanned their absentee ballots, one by one. And from that, Bush lost nine votes and Gore gained two.

     In Dixie County, Gore got one more vote and Bush lost one when the ballots were re-scanned. "We ran our ballots back through the counter, just like we did on election night," said Mae Beville, supervisor of elections. "They told us to do a recount, to count them again."

     Nearly 27,000 voters in Duval County, which includes Jacksonville, had their votes discarded because they either picked too many candidates or none. Assistant supervisor of elections Susan Tucker Johnson said the county uses a punch card system. Bush picked up 16 votes and Gore gained 184 when Duval recounted its ballots.

     "You punch out a dot that represents your candidate. If the dot's not punched out completely, they open and close at will," Johnson said. "The count may be a little different if we did a third recount."

     No State Is Perfect, Election Official Says

     Carol Flourney, assistant to the elections supervisor in Madison County, east of Tallahassee, warned that every state would discover imperfections in its voting systems if it had to do a recount like Florida.

     "Like I said, you're going to see a variance in those other states that think that Florida is so terrible," she said. "If they do a recount, they are going to have the same problems we do. They're going to have a variance when they finally tally because nothing is perfect."

     The counties that actually recounted their ballots got more than just new numbers. Franklin County elections supervisor Doris Gibbs said she found out that some voters picked every single candidate on the ballot.

     And voters in her small Panhandle county also selected Barney Fife, Andy Griffith and Minnesota Gov. Jesse Ventura for president. "Jesse Ventura got several votes," she said.

* * *
     Times researchers Edith Stanley and Lianne Hart contributed to this story.