December 9, 2000
At War with the Ballot
By Robert Parry
Texas Gov. George W. Bush came within one vote on the Florida Supreme Court of sealing his dubious claim to the White House. But his larger battle has been against the votes of the American people and the people of Florida.
What has almost disappeared from the news media’s coverage of this extraordinary election is the overriding fact that Bush lost the national popular vote by one-third of a million votes. Vice President Al Gore was the choice of the American people, not George W. Bush.
It is also increasingly clear that Bush was not the choice of a plurality of Florida voters who went to the polls, nor it seems even those who managed to overcome Election Day obstacles and actually cast legal ballots.
To counter these political realities, Bush has pursued a three-pronged strategy: he has claimed victory, he has frustrated or blocked legal recounts, and he has relied on Florida's Republican officials to hand over the 25 electoral votes he needs to win the Electoral College.
Now, faced with the Florida Supreme Court ruling requiring a statewide recount of so-called "under-votes," Bush’s new tactic is to turn the concept of a court injunction on its head.
His lawyers have rushed to federal court seeking to stall the state-court-ordered recount until after Dec. 12 -- next Tuesday -- when Bush’s certified victory would presumably become official and render any recount meaningless.
In demanding the stay, Bush’s lawyers argued that the vote counting was a threat to “the integrity of the electoral process” and could cause Bush "irreparable injury."
But that's not really the case. After all, there would be nothing irreparable about conducting the recount and then, if the U.S. Supreme Court agrees with Bush, to throw out the recount.
On the other hand, there would be irreparable harm to Gore’s campaign if an injunction blocks the counting of the votes and the Dec. 12 deadline preserves Bush’s shaky 154-vote margin.
A typical injunction would come in, say, a death-penalty case when a stay prevents an execution from being carried out. That way, a court can hear arguments on overturning the sentence and possibly prevent something irreversible, like an execution.
Here, the Bush position is akin to requiring the execution be carried out before the court hears the case. Bush's lawyers want to use a federal injunction to inflict irreparable harm, not prevent it.
This new injunction strategy is the latest move in a month-long chess game aimed at blocking examination of ballots that were kicked out by machine counters.
According to experts and the statistical analyses done by major newspapers, the aging voting machines in predominantly poor areas of Florida failed to record votes as accurately as did modern machines in more affluent precincts.
Even one of Bush’s own expert witnesses, John Ahmann, testified that the only way to check whether the faulty machines had rejected legitimate votes was to examine them by hand. [NYT, Dec. 4, 2000]
A manual review of the ballots also would even out the voting process, so poor voters would have comparable voting rights as wealthier ones. Yet, such a review is precisely what the Bush campaign has fought for the past month.
On Nov. 22, Bush and his recount adviser, James Baker, went so far as to publicly denounce the Florida Supreme Court for extending a deadline that permitted continued recounts in three South Florida counties.
Meanwhile, that day on the ground in Miami-Dade County, paid demonstrators working for conservative Republicans in the U.S. Congress led an assault on the room where the recount was being carried out.
With the demonstrators roughing up Democrats and pounding on the walls, the Miami-Dade canvassing board abruptly reversed its decision. The board terminated the recount and even threw out 168 votes that already had been discovered in the partial review.
The board insisted that it had not been intimidated by the riotous conditions outside its doors, though the chairman acknowledged that the members were aware of the noisy protest. The official reason for terminating the count was a presumed lack of time.
The next night, as the Republican operatives celebrated at the Hyatt hotel on Pier 66 in Fort Lauderdale, Bush and his vice presidential running mate Dick Cheney called to thank them.
According to the Wall Street Journal, Bush and Cheney joked about the events in Miami. The Bush campaign also supplied entertainment. Singer Wayne Newton crooned the song, Danke Schoen. [WSJ, Nov. 27, 2000]
In nearby Palm Beach County, Republican lawyers followed a different strategy. They lodged repeated objections, slowing the count and contributing to the canvassing board missing by two hours a deadline for turning in the revised tally.
Republican Secretary of State Katherine Harris refused to include those 215 votes, too. Then, in a ceremony staged to resemble an official treaty signing, Harris declared Bush the victor by 537 votes. A growing chorus of pundits demanded that Gore concede.
That status quo held until late Friday afternoon when four justices – Peggy Quince, Barbara Pariente, Fred Lewis and Harry Lee Anstead – ruled that the excluded votes must be counted and that the Miami-Dade recount must be completed. The justices also ordered an examination of all ballots in Florida that had not registered a vote for president.
The 4-3 decision opened the door to what could be as legitimate a result in Florida as possible under the circumstances.
There is perhaps no way to correct other errors affecting thousands of voters, many elderly Jewish retirees and African-Americans, who had their votes not tallied because of confusing ballots or because they were turned away after their names were improperly left off voting lists.
But the court ruling could allow the inclusion of hundreds of votes not counted because of antiquated voting machines. This fuller tally would bestow greater legitimacy on whoever is the winner.
That was not the desire of George W. Bush, however. After 31 days of trench warfare against the Florida ballots, he again looked to conservative allies in the federal courts to make sure that those ballots never get counted.