Wednesday, September 20, 2017

Have You Forgotten? Bush v. Gore 2000

I am not going to try and sell you the idea that everything Bush and the Republicans did was noble and aboveboard while Gore and the Democrats were motivated entirely by cheap partisanship. It's all very complicated, and mixed motives are the norm, not the exception in such circumstances.  However there is a continuing narrative that still gets put forth as obvious, with repercussions down to the present day.  Attorneys reading should feel free to chime in to correct or expand, but my intent is not to give a legal summary but to challenge the received narrative.

Bush v. Gore  Please note there is an error in the Wikipedia article, which claims in paragraph 4 that while Bush would have won anyway under the type of recount Gore was advocating, Gore would have won under a full-state recount. This is not known to be true. If you read the whole thing it is difficult to see where this is anything but speculation based on "Well, what if we counted the overvotes?" Counting spoiled ballots which nonetheless showed the clear intent of the voter might indeed have resulted in more votes for Gore.  I'll refer back to this at the end.

The narrative I have read and been told many times is that five SCOTUS justices appointed by Republicans voted down four objective and honorable justices on the basis of nothing but partisanship, awarding the presidency to Bush undeservedly. It remains a shameful episode in the history of the court, and undermined the public's confidence in that institution. That Jeb Bush was governor is also mentioned darkly, that he was in on the fix, too, though exactly what he did isn't identified. Just the usual Darth Vader music in the background.

It's hard to prove a negative, so yes, perhaps, if we had a Motive-o-Meter and scanned each of the justices as they were deliberating, we would see dark stains on the souls of Rehnquist, Thomas, O'Connor, Scalia, and Kennedy contrasting with crystal hearts of Souter, Breyer, Stevens, and Ginsburg.

There are some facts which are usually left out of the discussion, however, which suggest that at minimum, there is another side to this which is not easily dismissed. First, the justices ruled 7-2, not 5-4 on the question of whether there had been an Equal Protection Clause violation, as Bush claimed. Five of those justices said the deadline is the deadline, we're done. Two justices joined that decision, Souter and Breyer, agreeing that there was a violation, but thought it should go back to the Florida Supreme Court to decide what to do. I don't think that's crazy, by the way.  Yes, it is possible to impute partisan motives to them, because the Florida Court had all been appointed by Democrats and had tipped its hand what it might do. Yet without mind-reading we are back at the same finger-pointing with no evidence. I am nowhere near informed enough in the law to tell you whether that is the best, or even a defensible position, but on the surface it seems reasonable the SCOTUS tell Florida to sort out its own mess, after noting there had been a finding there was a violation, contrary to that court's earlier ruling.

Let me hit that key point again:  7-2 on Equal Protection, which to me looks like the central issue.  Not 5-4.  5-4 was for "What remedy?"

The legal arguments at this point revolved around whether there should be a deadline extension for recounts, whether Kathryn Harris had the authority to shut the thing down, whether started recounts that had been shown to be not-quite-right should be resumed, abandoned, or restarted. The popular arguments were much simpler: "You're cheating!" "No, you are!" As usual, everyone was suddenly an expert on Florida election law, the intent of the Florida legislature, Article II of the US Constitution, and the Fourteenth Amendment. Who says the schools aren't doing their job in civics?  Why, we can produce millions of experts overnight, with no additional training.

Let me jump back just a moment to the Florida Supreme Court. It's not in the Wiki article, but they had ruled 7-0 that there should be statewide manual recount, according to their interpretation of the law and the intent of the legislature.  Gore had only asked for four Democratic counties to be recounted, but they thought it was better to recount everything.  Bush appealed, and the SCOTUS sent that back quickly saying "What was your reasoning there? Show your work."  At the time, I was told this was a major slap in the face, but I don't know if that's true.  However that was, when asked to produce the reasoning, three of the seven changed their mind. The court ruled 4-3 for the statewide manual recount, and Bush appealed that, claiming that the rules for what was a legal vote varied from county to county. The Gore team countered "So what?  It's the intent of the voters that matters, not whether the technical definition of a legal vote is the same."

Back to the SCOTUS just for a moment, and then we're nearly done. In the 5-4 decision of "What remedy should there be for this violation of the Equal Protection," three justices (Scalia, Rehnquist, Thomas) really wanted to sock it to the Florida Supreme Court that they had acted contrary to the will of the legislature, while two (Kennedy, O'Connor) said, "No, we wouldn't go that far" and didn't sign on.  The four dissenting justices (Stevens, Souter, Ginsburg, Breyer) said the opposite, that the Florida Supremes had jolly well not acted contrary to the legislature, they had gotten it right the first time. I can see some sense in all the sides here. The rulings of the justices sort of break down 3-2-2-2, depending on what question is being asked. Rather like arguing the Crusades, which popular imagination pictures as having two sides, when really there were at least four.

The irony piece.  Had the Gore team dared to take a long-term political risk, they likely would have won.  Spoiled ballots are three times more common in black districts. They could have tried to sell that idea as black voters being undercounted (there's that thing about overvotes, which I don't believe are counted anywhere) thereby, and had they won that, broadening the standard for what constituted a legal vote, Gore would very likely have gotten more votes. But to bring that up would be insulting to black voters, which might have cost them in the long run.  I don't think it would have, myself, but I am notoriously bad at this sort of horse-race analysis in politics.


Boxty said...

Iirc, the Deems were also upset that the Sec. of State was a Republican woman.

What were the 4 sides fighting in the crusades? Quick google search only mentions 3 unless Turks and Arabs are counted individually.

Christopher B said...

Boxty - yeah, I wonder what Democrats have against strong women who don't agree with them. It's almost like political views trump the gender or race of the politican. The treatment of Kathryn Harris presaged the reaction to Sarah Palin.

AVI - I believe there is some support for the contention that Gore could have won a statewide recount. According to this CNN article about the simulated recount run by several news organizations, W would have prevailed in most recount scenarios including the one that Gore picked first of recounting just four heavily Democrat counties. However, Gore could have won a statewide recount using both overvote/undervote standards but his legal team never pursued that option. It is rather ironic that in attempting to guarantee the best scenario for winning rather than advocating for the most equitable recount (and one that actually matched the Democrat's 'count every vote' slogan) he probably blundered his way into losing.

Christopher B said...

More irony - if Gore had immediately pressed for a statewide recount, he might have been able to avoid the issues later relating to the deadline for certifying the state election results and counting Electoral votes.

Assistant Village Idiot said...

@ Boxty - Latin and Byzantine Christian Churches; Seljuk Turks (fairly recent converts to Islam), Fatamid Shi'ites from Egypt who controlled Palestine, and you could throw in the Abbasids, who were Sunnis from Baghdad. The Seljuks also had a split off group which formed the Sultanate of Rum.

Assistant Village Idiot said...

@ Christopher B - agreed. There may have been some thought that their best chance was to get more votes out of Democratic counties. Too clever by half.

RichardJohnson said...

I voted Third Party in the 2000 election- as most of my Presidential votes had been up to that point. My reaction to Democrat conduct during the 2000 Florida recount was my decision to vote Republican in the future. It seemed to me that Democrats wanted to change the rules at their convenience. For example, Democrats told us that ballots that had been rejected should be "re-interpreted," as they would have been Democrat votes but for voters not being able to understand the ballots. But in those counties, Democrats were in control and had designed the ballots.

I also recall that Democrats wanted to invalidate absentee military votes. Funny, that.
I also recall TV announcing Florida votes before Florida counties on Central Time had closed.

RichardJohnson said...

Flashback: Democrats Worked Hard to Disqualify Overseas Military Ballots in 2000 Recount.

The main battlegound was Duval County, home to more military families than any other county in Florida. Duval had more absentee ballots from overseas than any other county – 618 of 3,500 cast statewide. Five Gore lawyers showed up at the elections office at 9 a.m. Friday to disqualify as many of those ballots as possible.

Tom Bishop, one of the Republican lawyers, was incensed as he watched the Democrats, armed with the smoking-gun memo, blatantly go about disqualify large numbers of military ballots.
“They had their little cheat sheet they were using, and they objected on every single possible ground they could, no matter how spurious,” Bishop told Sammon. “It was so bad that there was rolling of the eyes by even some of the Democrats there who were watching their lawyers work.”
Before Nov. 17, the Duval supervisor of elections compared signatures on ballot envelopes against signature cards on file. He could find only two absentee ballots that could not be included because the signatures did not match.
“But now the Democrats insisted that they be allowed to compare all signatures, one by one. For seven tedious hours, they bitterly argued that signatures on more than 100 envelopes did not precisely match the signature cards – although some envelopes had been signed by sailors on rolling seas in hostile situations,” Sammon wrote.
“You could clearly tell it was the same person´s signature, but they would object because it didn´t have a certain curlicue or didn´t have a certain twist or it was smaller,” Bishop told him.
The Democrat lawyers sought to disqualify military ballots that had no overseas postmark on the grounds that some voters might have marked their ballots a day or two after the election and then mailed them in.

Recall that Obama, who wants to make sure that all his buds- citizens or not- get to vote, ran unopposed in his initial electoral campaign, a primary vote for the Democrat nomination for the Illinois legislature He ran unopposed by by invalidating the signatures on the petition for Alice Palmer to be on the ballot.

Christopher B said...

AVI - as you noted, the GOP wasn't covering itself with glory either. They quite obviously wanted to include the GOP heavy Florida Panhandle in the recount, a choice that could have boomeranged on them if the recount standard decisions had come out differently.

It's worth noting (with an eye to 2016) that if Gore had taken the objective of winning either Bill Clinton's home state of Arkansas or his home state of Tennessee more seriously, the close election in Florida would have been just a footnote. I've wondered since Nov of 2016 if Gore suffered from the same delusion as Hillary appeared to in 2016. I remember predictions that he would narrowly win the large-EV states that traditionally favor Democrats while W rolled up big margins in the small-EV states that favor Republicans. Did he decide, as Hillary appears to have chosen, to try to run up the score in the large states he was going to win already so he wouldn't lose the popular vote.

Assistant Village Idiot said...

@ Richard Johnson - that is ironic given their rhetoric about how discriminatory it is to require ID and challenge votes now.

To be fair, when one gets partisan lawyers involved, both parties switch back-and-forth on issues pretty quickly. Whatever works.

@ Christopher B - I noticed in that article that the bulk of problem ballots was all about voter error, but when the summary came they had to point out other things as well - bad ballot design, for example. I imagine those are true but not regularly on the map.

Grim said...

I was in China in 2000, teaching English as Americans do when living in China, and thus had very many confused Chinese students wondering what was going on with our election. It was fun trying to explain it, but -- having not cared enough to vote myself that year, being just as disinclined to vote for a second Bush as I later was for a second Clinton -- I became convinced in trying to understand the issue that the Bush team had the right of it. The rules were the rules agreed to before the election; the Gore team kept trying to change the rules and try new recounts until it got the result it wanted. The AG not only had the authority to end the recounts, she had the duty to do it, and to report a result by a specific date, under the law that existed on Election Day.

Probably that reading says more about me than it does about the facts, but it is what seemed right to me at the time.

jaed said...

Gore could have won a statewide recount using both overvote/undervote standards but his legal team never pursued that option.

It's been a long time, but at the time I was both interested and on a couple of legal mailing lists that discussed this, and at one point I got to know more about Florida election law than any sane human being should have to. IIRC, Florida law did not allow for a candidate to request a statewide recount. There was no mechanism for it. Candidates could request recounts in up to four counties, which is what Gore did. It seemed to me that the drafters of the law had been thinking of situations where cheating or some kind of mechanical problem had occurred or was suspected, but didn't want to let candidates obstruct the process by demanding unlimited recounts, and the limitation to four counties came out of that. I don't think they had contemplated a situation in which one or more candidates wanted a recount because the vote statewide had been close (let alone with a difference measured in the thousandths of one percent).

It's also worth remembering that the critical question and answer in the Supreme Court came when they were discussing the actual procedure in Palm Beach County, and David Boies mentioned that the vote-counters had been changing the criteria during the manual recount—three times, I think, so that a ballot might have been counted with any of four sets of rules, depending on when it came up during the recount. That seems to have been what decided the SC concerning the equal-protection claim, that your ballot might be counted or not depending on the random chance of whether it was recounted early or late.

RichardJohnson said...

Note that there are at least three commenters who saw the Democrats as wanting to change the rules at their convenience: myself, Grim,and jaed. Also note that at least two of the commenters pointed out they hadn't voted for either Bush or Gore- Grim (abstain) and I (third party)- and thus weren't inherently biased against Democrats. I also note that both jaed and I didn't like what the Democrats did in Palm Beach County.

Christopher B said...

jaed, I missed the county request limit back then and in fact had it the other way around. Very likely partisan but for the life of me I can't recall anybody explaining it that way which would have made sense. I guess it wasn't very intuitive why he picked four. I was living in Iowa at the time where recounts always appeared to be jurisdiction-wide (state office - state recount, etc) but were limited in number.

jaed said...

I didn't vote for President in 2000 myself, although I voted in other contests in that election.

I remember being particularly annoyed at the idea, which was widespread in commentary, that a ballot without a vote for president should be carefully examined for any partial detachments or scratches or marks that might allow the vote counter to divine which candidate the voter had "intended" to vote for, in light of my own intended non-vote; I wanted that decision not to vote on the office respected. (And of course, the process of divination lends itself to placing a thumb on the scale—even an unconscious thumb.)

Although I've never lived in Florida, I've voted many times using that sort of ballot, and the instructions were always explicit: if the chad is not completely detached, your vote won't count. And I felt that the counting rules should align with what people had been told when they voted.

Palm Beach County's procedure was annoying. But what went on in Broward County was completely shameless. (Ah, how it all comes back to me....) Bush vote? Well, let's see... here is an additional chad with one corner detached, so this is an "overvote" and doesn't count. Non-vote? Hey, here's a little nick on the Gore chad... obviously, this person intended to vote for Gore!

RichardJohnson said...

But what went on in Broward County was completely shameless. (Ah, how it all comes back to me....) Bush vote? Well, let's see... here is an additional chad with one corner detached, so this is an "overvote" and doesn't count. Non-vote? Hey, here's a little nick on the Gore chad... obviously, this person intended to vote for Gore!

A check on your memory: How Gore Bush Won Florida.
Broward, its counting rules changing minute to minute and its canvassing board members peering at dimpled chads through magnifying glasses and spectacles, weighed in with a hefty 567-vote pickup for the vice president.

From my experience with trying to count objects numbering only in the hundreds, there is no guarantee that recounting will be more accurate than the first count.For that reason, I was skeptical about the accuracy of a recount.

Extreme partisanship on the part of the Democrats- in this case wanting to change rules at their convenience to maximize Demo votes- lost the support of 3 formerly neutral commenters here. This was not my first reaction to Democrat partisanship. In the 1991 Senate vote for Gulf War I, I believe there were only about 5 Democrat Senators that voted to support Bush. My conclusion was that Democrats were taking partisan domestic politics to foreign policy. As such, I decided, I could no longer vote for a Democrat for President. I voted Third Party in subsequent elections through 2000. My reaction to the Florida recount was to heretofore vote Republican.

Texan99 said...

I'm with Grim and was at the time. The Sec'y of State had discretion to end the recounts. The remedy available to override her was to allege and prove abuse of discretion, which no one even tried to do. I wasn't happy with the Florida S. Ct.'s attempt to step in and replace black-letter law with their idea of equity, and I wasn't much happier with the U.S. S. Ct.'s approaching the controversy in a similar vein, but with a predictably opposite result. What a mess it was.

Assistant Village Idiot said...

Duly Noted.

My hope is still mostly to point out that the myth is less than 50% true.

RichardJohnson said...

Had the Gore team dared to take a long-term political risk, they likely would have won. Spoiled ballots are three times more common in black districts...Gore would very likely have gotten more votes. But to bring that up would be insulting to black voters, which might have cost them in the long run.

Maybe so, but the Democrat recall narrative was already insulting Democrat voters. Recall all the brouhaha about chads et al and how the re-counters had to "interpret" those ballots because all those good Democrat voters just couldn't understand those horribly complex ballots. That was rather insulting to Democrat voters- that they couldn't understand the ballots- was it not?

Democrats in Democrat-controlled counties had previously approved those "horribly complex" ballots. As Democrats approved those ballots, I found it rather off-putting that Democrats wanted to change the rules on ballot counting.