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New York Times

July 14, 2001

How Bush Took Florida: Mining the Overseas Absentee Vote (cont.)

evising a Complex Approach to Challenging Ballots

Thanks to a network of local lawyers who had advised his brother Jeb, the governor of Florida, on judicial appointments, Mr. Bush had a ready source of politically connected legal talent to argue on his behalf before the 67 county canvassing boards. The campaign's preparations were meticulous. Six days before county officials were to begin examining the overseas ballots, Bush advisers were sending out detailed instructions on the legal intricacies of overseas voting. There were daily conference calls, spreadsheets to track ballots in each county, a phone number for emergency advice. One group of Bush lawyers christened itself the Overseas Absentee Ballot Task Force and even had its own letterhead.

Mr. Gore's top aides, preoccupied by recounts in South Florida, were poorly prepared by comparison. The Gore team, for instance, wanted its representatives in each county to estimate how many overseas ballots had flaws open to challenge. By the night before the counting, they had estimates from 10 of 67 counties.

Having assumed that Mr. Bush would win easily among overseas voters, the Gore strategy was predicated on knocking out overseas votes and fighting for the strictest readings of state law. Never mind Mr. Gore's repeated pledge to count every vote;

his strategists calculated simply that the fewer overseas ballots counted the better.

It was left to Mark Herron, a Tallahassee election law specialist, to teach the Gore legal recruits the basics of overseas ballots, and on Wednesday, Nov. 15, Mr. Herron circulated a five-page memorandum that listed legal grounds for protesting overseas ballots when the canvassing boards reviewed them just two days later. Within a day, however, the Herron memorandum had fallen into the hands of the Bush lawyers, who instantly recognized its political value and later used it to discredit the Democrats' strategy on overseas ballots as an effort to disenfranchise voters.

``We were losing the public relations battle until we got the break with that stupid memo,'' said Mr. Tompkins, the senior Bush strategist.

But the Bush lawyers had a strategy memorandum of their own, recently obtained by The Times, that also 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, including a copy of Ms. Harris's Nov. 13 statement.

Unlike the single-minded approach of the Gore memorandum, the Bush instructions set forth a more adaptable, tactical approach aimed at achieving the largest possible net gain from overseas voters. Specifically, the Bush lawyers were told how to challenge ``illegal'' civilian votes that they assumed would be for Mr. Gore and also how to defend equally defective military ballots, the document shows.

The clearest illustration of the differing strategies was in the pre-printed protest forms that each campaign prepared for use with the canvassing boards as they scrutinized each ballot envelope for legal defects.

The Gore instructions included one all- purpose protest form; the Bush instructions included two. The first Bush form protested defective ballots just as the Gore form did and listed many of the same potential flaws -- missing witnesses, late postmarks, domestic postmarks. In an accompanying ``letter of instruction'' the Bush lawyers were told that it was essential to check for defects and that there was to be no flexibility on the question of missing postmarks. To be valid, the letter said, ballots ``must have'' a military or foreign postmark.

The second form, which was used to protest the exclusion of military ballots, demanded that canvassing boards count military ballots that arrived without postmarks, or with illegible postmarks, or even in some cases with United States postmarks.

``To the extent that Florida purports to require that envelopes contain postmarks,'' the instructions stated, ``then with respect to members of the military overseas, Florida law is inconsistent with - and pre- empted by - federal law requiring the expeditious delivery of overseas ballots.''

In addition, the Bush instructions contended repeatedly that civilian ballots were not entitled to the same leeway as military ballots - a distinction not found in either Florida election law or in the federal law that governs overseas voting. One example involved overseas ballots delivered by Fed-Ex or other commercial express mail services. ``Late shipment by civilians through such channels raises reasonable questions about the legitimacy of the ballot,'' the instructions said.

Asked why they prepared a protest form almost identical to the one they had criticized Mr. Gore for using, Mr. Ginsberg said, ``I'm not sure it was operative still when people went into the counting boards.''

Questioning Civilian Ballots, Defending Military Ballots

On Friday, Nov. 17, county officials across the state began counting the overseas votes, the only ballots not yet examined by man or machine.

By then Mr. Bush's unofficial 1,784-vote lead had been reduced to 300. That very day, the Florida Supreme Court had barred Ms. Harris from certifying any final results until the justices, all Democratic appointees, decided whether to allow hand recounts to proceed in South Florida.

The Bush lawyers involved in overseas ballots gave different responses to whether they approached that Friday with a two- tiered strategy. Mr. Ginsberg acknowledged that they had fought for military ballots while opposing ballots from civilians. But Mr. Aufhauser said, ``There was no such strategy to do something in Palm Beach that we did not do in the Panhandle.''

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 Mr. Gore was strong and another in counties carried by Mr. Bush.

County by county, and sometimes ballot by ballot, they tailored their arguments in ways that maximized Mr. 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, Fla., told the board in Collier County, a conservative outpost in southwest Florida.

Making frequent and effective use of the protest form they had developed to defend military ballots without postmarks, the Bush lawyers succeeded in persuading three counties in the western tip of the Panhandle, all of them Bush strongholds, to disregard Florida's postmark rules.

The three counties, Escambia, Okaloosa and Santa Rosa, counted 72 overseas ballots without postmarks, 63 from members of the military.

``We had never done it before,'' Pat Hollarn, the veteran Okaloosa County supervisor, said in an interview.

In Santa Rosa County, Doug Wilkes, the election supervisor, tried to argue that ballots without postmarks should be rejected. ``The board always stuck to the rules, to the letter of the law of the State of Florida,'' he told his two fellow canvassing board members that Friday.

He was outvoted.

By contrast, in Democratic strongholds, Bush lawyers simultaneously worked to exclude as many likely Gore votes as possible.

There they spoke not of the right to vote but of the importance of following the letter of state election rules. The ``fundamental'' role of election officials is to detect ``anything that could affect the honesty or integrity of the election,'' Craig Burkhardt, a Bush lawyer, told the Broward County canvassing board. At one point, Mr. Burkhardt grew so angry insisting on his right to scrutinize voter signatures that a board member told him, ``Calm down, chill out.''

In Broward and in other Gore strongholds, Bush lawyers questioned scores of ballots, almost always from civilian Democrats but occasionally from members of the military. They objected to the slightest of flaws, including partial addresses of witnesses, illegible witness signatures and slight variations in voter signatures. In at least six cases, the Bush lawyers relied on the Republican protest form that was barely distinguishable from the infamous protest form designed by Mr. Herron, the Gore election law specialist.

Mr. Aufhauser said the Bush team had not encouraged such challenges. ``You have field commanders, and they have to rely on the people in the field,'' he said. ``In the 67 counties, I think we had substantial compliance with the directive that we be consistent.''

But many of the challenges were consistent with the instructions provided by Mr. Aufhauser. The Bush lawyers, for example, followed the campaign's guidance in selectively challenging federal write-in ballots.

These were special last-resort ballots to be used only when a voter's regular state ballot failed to turn up in the mail. Under federal law, they can be used only after the voter has first made a request for a regular ballot at least 30 days before the election.

In Bush counties, Republican lawyers argued that write-in ballots from military voters should be counted even when there was no record of a request. But in Broward County, where at least 119 federal write-in ballots arrived, Republican lawyers took the opposite position. ``Have we checked to see whether they've complied with the requirements of having requested 30 days prior?'' a Bush lawyer demanded. Eighty-one of them were rejected.

When ballots were defended, they were from military voters. ``I cannot believe that our service boys, fighting hard overseas, that their ballots would be disqualified,'' Mr. McCown, the Bush lawyer, told the Palm Beach County canvassing board.

``All right,'' Judge Charles E. Burton, the board chairman, replied dryly. ``We will file a protest and arrange for a violin.''

Later, in their reports to senior Bush aides, the lawyers listed rejected ballots under two categories, ``military'' and ``nonmilitary,'' and their differing approaches to civilian and military ballots are reflected by this finding: While canvassing boards accepted 30 percent of the flawed civilian ballots, they counted 41 percent of the flawed military ballots, according to The Times's database.

The duality of the Bush strategy was demonstrated in another way. In three South Florida counties, Miami-Dade, Broward and Palm Beach, boards rejected as illegal 362 of 572 overseas ballots that Friday. Most - including many military ballots - were thrown out without a word of protest from Mr. Bush's lawyers.

Some of their work was done by the Gore lawyers, who, true to their strategy, challenged hundreds of overseas ballots with little discrimination. They objected to ballots from Democrats, Republicans, civilians, military personnel - even in counties where Mr. Gore actually beat Mr. Bush among overseas voters.

Mixed Messages Concerning Postmarks and Patriotism

The Bush campaign's patriotic appeals were more persuasive in north Florida, home to several large military bases. In Panhandle communities like Pensacola, Fort Walton Beach and Jacksonville, almost everyone knows someone in the military. The deputy election supervisor in Jacksonville, a former Navy pilot, has a photograph above his desk of him in a fighter jet. In Fort Walton Beach, Ms. Hollarn has an office full of military memorabilia. For them and their fellow election officials, rejecting a single military vote was personally painful.

``Just heartbreaking,'' Ms. Hollarn said.

It was also politically difficult.

The Panhandle canvassing boards, made up mostly of elected officials, reflected the conservative, pro-military politics of their counties, and rejecting Bush votes - particularly those from the military - did not endear them to most of their constituents.

``Shame on Okaloosa County, on Florida and on you,'' a mother of three military sons wrote to Ms. Hollarn after the county rejected a handful of military ballots.

Ms. Hollarn, a staunch Republican and a stickler for rules, opted to accept ballots with missing postmarks, but only if they arrived by Nov. 13, six days after the election. It seemed only common sense, she said, to assume that these ballots were cast before Election Day, even if they did not comply with the letter of the law.

``You have no idea the soul-searching, and case-law-searching, that myself, my attorney and the canvassing board went through to come up with our final decision,'' Ms. Hollarn wrote in an e-mail response to the angry mother. For nearly two decades, she added, her canvassing board had rejected ballots with late or missing postmarks without any fuss.

Other Panhandle canvassing boards held the line on counting ballots with missing postmarks. ``What would prevent an elector overseas from voting after the date of the election?'' asked Rick Mullaney, a member of the Duval County canvassing board, which initially voted to reject such ballots.

But others, like the Escambia County canvassing board, accepted the Bush campaign's argument that federal law trumps state law. ``I'm not a great conflict-of-law scholar or anything,'' Judge Thomas E. Johnson, the canvassing board chairman, worried. ``Come on, I need some help here.''

The result was unequal treatment of ballots with the same flaws. While Bush counties accepted 70 of 109 ballots that arrived without postmarks within two days of the election, Gore counties accepted 17 of 63 such ballots.

In Alachua County, which was carried by Mr. Gore, the canvassing board's insistence on postmarks prevented it from counting the ballot of Jeff Livingston, a staff sergeant at an Air Force base in England who acknowledged voting for Mr. Bush after the election. His ballot, missing a postmark, arrived on Nov. 13, just three days after he dropped it off at the base post office. Under Ms. Hollarn's modified standards, his ballot would have been counted had it arrived in Okaloosa County.

In a climate of rampant confusion over how to judge overseas ballots, some election officials pointed fingers at Ms. Harris, saying she had done little to bring clarity or consistency to the application of Florida's overseas ballot rules.

The issue was one Ms. Harris was familiar with. In 1999 she ordered each of Florida's counties to enforce newly tightened absentee ballot rules in a uniform manner. She warned that ``differing treatment would no doubt disenfranchise some voters simply based on where they live in violation of federal and state law.''

Beyond missing postmarks, canvassing boards were confronted with the question of what to do with more than 300 ballots that arrived after the election with domestic postmarks. Many were postmarked in military towns like Norfolk, Va., or San Diego.

And dozens of these voters acknowledged that they were in fact inside the United States on Election Day.

Their ballots were plainly illegal under Florida law, which requires all absentee voters inside the United States and its territories to get their ballots in by Election Day.

Most canvassing board members knew next to nothing about the workings of the military mail. The Bush lawyers, some citing their own military backgrounds, had a ready explanation for all the military ballots with United States postmarks. They told boards that mail for overseas military members was routinely postmarked when it arrived in this country.

One supervisor who checked with Ms. Harris's office said he had received similar assurances.

According to mail officials, those assurances were wrong.

Military mail is postmarked at the point of origin - a ship or a base. Then, as with all international mail, it enters the United States only through special processing centers where mail is subject to customs inspections, but not postmarking.

Those centers, postal officials said, are not even equipped with postmarking machines.

Yet based on the faulty information, canvassing boards accepted dozens of ballots that arrived after the election from military voters stationed inside the United States.

And when the counting ended in the early hours of Nov. 18, Mr. Bush had gained 1,380 votes to Mr. Gore's 750 votes.

But Mr. Bush's strategists wanted even more.

Thanksgiving Reprieve for Rejected Votes

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.'' Robert Novak, the conservative newspaper columnist, called the Herron memorandum a ``quickie guide for tossing out the serviceman's vote.''

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, Mr. Gore's running mate, Joseph I. Lieberman, 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, the attorney general of Florida, a Democrat, 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 Mr. Bush to win still more absentee votes. A Democratic lawyer, Mitchell Berger, later referred to the additional Bush votes as ``the Thanksgiving stuffing,'' a label that stuck.

As a legal matter, the lawsuits were a failure; not a single judge agreed with the Bush campaign's argument that Florida's postmarking requirements were invalid. A federal judge in Pensacola ordered canvassing boards to reconsider several hundred federal write-in ballots, but his ruling came too late to affect the final results.

Bush lawyers found their most persuasive argument in a Florida Supreme Court ruling on Tuesday of that week - a decision that actually favored his opponent. In an order that allowed manual recounts to resume, the justices declared that the will of the voter should take precedence over ``hyper-technical reliance upon statutory provisions.''

Even as their colleagues appealed the ruling to the United States Supreme Court, Republican lawyers adopted the term ``hyper-technical'' as a rallying cry, demanding that local officials overlook a broad range of legal flaws.

The Republicans had one other weapon in their public relations arsenal. They enlisted Republican members of the House Armed Services Committee, who used their influence with the Pentagon to help the Bush campaign contact military voters whose ballots had been rejected.

By the end of the week, canvassing boards in about a dozen Republican-leaning counties had reconvened for a second round of counting. In each place, longstanding election rules were bent and even ignored. Boards counted ballots postmarked as many as seven days after the election, including some from within the United States. They counted two ballots sent by fax. Officials in Santa Rosa County even counted five ballots that arrived after the Nov. 17 deadline. Again and again, election officials crossed out the words ``REJECTED AS ILLEGAL'' that had been stamped on ballot envelopes.

In all, over the Thanksgiving week, the counties accepted 288 ballots that they had rejected days earlier.

In recent interviews, board members said they decided to meet again for a variety of reasons, ranging from intense pressure from their constituents to the specter of the Republicans' lawsuits, which had named individual members as defendants.

Just as Mr. Gore never sought manual recounts in Republican strongholds, Mr. Bush did not request a second look at overseas ballots in large Gore counties, like Miami-Dade and Broward, where 346 overseas ballots, including 164 from the military, were rejected and never given a second look. Instead, the Republicans fought pitched battles in smaller counties, like Pasco, where they had a better chance of picking up votes.

``It looks to me like we've got a lot of pressure here,'' Judge Robert P. Cole, chairman of the Pasco board, said as he faced a throng of cheering Republicans and more than a dozen Bush representatives. ``And to be honest with you, you know, I don't think this board should respond to that kind of pressure.''

Not a single Gore official bothered to attend the meeting.

``We felt our presence was not going to change what the canvassing board was going to do,'' said Michael Cox, then the chairman of the Pasco County Democratic Party. Mr. Cox added that the hour's drive from his home to the county building on a Sunday did not seem worth the effort. ``We were tired of it,'' he said.

Pasco County added 19 votes, giving Mr. Bush a net gain of 6.

There were other pressures exerted, too. A Republican lawyer told some canvassing board members that they faced federal prosecution and jail time if they persisted in rejecting overseas ballots. ``Disallowing these ballots would violate federal law, both in letter and spirit, and would subject the person so excluding these ballots to criminal sanctions,'' Edward Fleming, a Bush lawyer, wrote to officials in Santa Rosa County. The county accepted 38 of the 49 ballots it had previously rejected.

To give overseas residents plenty of time to vote, Florida officials mail out both a preliminary version of the absentee ballot and then, after the primaries, a final version. Voters are instructed to send in both, but the preliminary ballot is discarded if the final ballot arrives in time to be counted.

Yet for 19 voters - 15 of them Republican - Duval County election officials counted both ballots. Officials said it was a mistake, the product of long hours and the intense pressure to count every possible ballot.

One of the double voters, Nicholas Challen, 40, a senior chief petty officer in the Navy who cast his second vote from Jacksonville on Election Day, reacted with jubilation when told that both of his votes counted. He raised both arms as if he had just scored a touchdown and savored the two votes he had delivered to George W. Bush.

``Yes!'' he said, beaming.

When it was all over, the 14 counties involved in the ``Thanksgiving stuffing'' effort had given Mr. Bush a net gain of 109 votes. Overall, the overseas ballots provided Mr. Bush with a net gain of 739 votes over Mr. Gore. The final margin fell short of the Republicans' 1,000-vote goal.

But it was enough.

Supreme Court S teps In,
But Not on Absentee Votes

On Sunday, Nov. 26, while some Bush counties were counting a handful of rejected overseas ballots, the canvassing board in Palm Beach County frantically raced to finish its manual recount of nearly a half- million ballot s. The board was trying to meet a 5 p.m. deadline for counties to submit official vote totals. By 1 p.m., it was clear to Mr. Burton, the canvassing board chairman, that Palm Beach County would miss the deadline. On national television, Mr. Burton pleaded for more time.

Inside Ms. Harris's war room, aides debated whether to grant an extension. Ms. Harris refused to budge. ``Katherine's job,'' said Mr. Stipanovich, the Republican consultant advising Ms. Harris, ``was to bring this election in for a landing.''

When Palm Beach County finally concluded its recount, two hours after the deadline,

Mr. Gore had picked up 176 votes. Ms. Harris refused to include those votes in the

final certified total, which showed Mr. Bush winning by 537 votes.

``In the end,'' Mr. Stipanovich said, ``the Palm Beach vote didn't matter.''

But it might have made a difference, if 680 flawed overseas ballots had not been included in her official returns.

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

Mr. Gore rejected his aides' advice.

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

As the election contest wound its way through the courts, the Republicans pressed their argument that the manual recounts violated the Constitution's equal protection clause. In the United States Supreme Court, this contention provoked searching debate among the justices and the lawyers about the lack of consistent standards for counting dimpled ballots and hanging chads, and in its decision giving the election to George W. Bush, the court concluded that uniform treatment was a matter of fundamental fairness.

``Having once granted the right to vote on equal terms,'' the majority wrote, ``the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.''

The court did not consider the varying treatment of military and civilian votes. It did not address the unequal treatment of the 2,490 ballots that finally determined the election's outcome. Those issues were never raised.

(Original Len: 30615 Condensed Len: 30687)

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