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How Bush Took Florida: Mining the Overseas Absentee Vote

by The New York Times Monday, Jul. 16, 2001 at 9:59 AM

A look at the controversial overseas absentee vote, and its possible impact on the 2000 Election.

JUL 15, 2001

How Bush Took Florida: Mining the Overseas Absentee Vote

By DAVID BARSTOW and DON VAN NATTA Jr.

On the morning after Election Day, George W. Bush held an unofficial lead of 1,784 votes in Florida, but to his campaign strategists the margin felt perilously slim. They were right to worry. Within a week, recounts would erode Mr. Bush's unofficial lead to just 300 votes.

With the presidency hanging on the outcome in Florida, the Bush team quickly grasped that the best hope of ensuring victory was the trove of ballots still arriving in the mail from Florida residents living abroad. Over the next 18 days, the Republicans mounted a legal and public relations campaign to persuade canvassing boards in Bush strongholds to waive the state's election laws when counting overseas absentee ballots.

Their goal was simple: to count the maximum number of overseas ballots in counties won by Mr. Bush, particularly those with a high concentration of military voters, while seeking to disqualify overseas ballots in counties won by Vice President Al Gore.

A six-month investigation by The New York Times of this chapter in the closest presidential election in American history shows that the Republican effort had a decided impact. Under intense pressure from the Republicans, Florida officials accepted hundreds of overseas absentee ballots that failed to comply with state election laws.

In an analysis of the 2,490 ballots from Americans living abroad that were counted as legal votes after Election Day, The Times found 680 questionable votes. Although it is not known for whom the flawed ballots were cast, four out of five were accepted in counties carried by Mr. Bush, The Times found. Mr. Bush's final margin in the official total was 537 votes.

The flawed votes included ballots without postmarks, ballots postmarked after the election, ballots without witness signatures, ballots mailed from towns and cities within the United States and even ballots from voters who voted twice. All would have been disqualified had the state's election laws been strictly enforced.

The Republican push on absentee ballots became an effective counterweight to the Gore campaign's push for manual recounts in mainly Democratic counties in southern Florida.

In its investigation, The Times found that these overseas ballots - the only votes that could legally be received and counted after Election Day - were judged by markedly different standards, depending on where they were counted.

The unequal treatment of these ballots is at odds with statements by Bush campaign leaders and by the Florida secretary of state, Katherine Harris, that rules should be applied uniformly and certainly not changed in the middle of a contested election. It also conflicts with the equal protection guarantee that the United States Supreme Court invoked in December when it halted a statewide manual recount and effectively handed Florida to Mr. Bush.

After being told of The Times's findings, Ari Fleischer, the White House spokesman, said: ``This election was decided by the voters of Florida a long time ago. And the nation, the president and all but the most partisan Americans have moved on.''

The Times study found no evidence of vote fraud by either party. In particular, while some voters admitted in interviews that they had cast illegal ballots after Election Day, the investigation found no support for the suspicions of Democrats that the Bush campaign had organized an effort to solicit late votes.

Rather, the Republicans poured their energy into the speedy delivery and liberal treatment of likely Bush ballots from abroad. In a Tallahassee ``war room'' within the offices of Ms. Harris, veteran Republican political consultants helped shape the post-election instructions to county canvassing boards. In Washington, senior Bush campaign officials urged the Pentagon to accelerate the collection and delivery of military ballots, and indeed ballots arrived more quickly than in previous elections. Republicans on the House Armed Services Committee helped the campaign obtain private contact information for military voters.

Republicans provided their lawyers with a detailed playbook that included instructions on how to challenge likely Gore votes while fighting for the inclusion of likely Bush votes. In some counties where Mr. Gore was strong, Bush lawyers stood by silently while Gore lawyers challenged overseas ballots, even likely Gore ballots.

The effectiveness of the Republican effort is demonstrated by striking disparities in how different counties treated ballots with similar defects. For instance, counties carried by Mr. Gore accepted 2 in 10 ballots that had no evidence they were mailed on or before Election Day. Counties carried by Mr. Bush accepted 6 in 10 of the same kinds of ballots. Bush counties were four times as likely as Gore counties to count ballots lacking witness signatures and addresses.

In reconstructing the story of the absentee vote, The Times collected copies of virtually all the overseas ballot envelopes that arrived after Election Day and built a comprehensive database for statistical analysis. The Times also examined thousands of pages of election documents and canvassing board meeting transcripts and interviewed more than 300 voters in 43 countries.

Because the ballots themselves are separated from the envelopes containing voter information, it is impossible to know whether the outcome of the election would have been different had the flawed ballot envelopes been treated consistently.

The Times asked Gary King, a Harvard expert on voting patterns and statistical models, what would have happened had the flawed ballots been discarded. He concluded that there was no way to declare a winner with mathematical certainty under those circumstances. His best estimate, he said, was that Mr. Bush's margin would have been reduced to 245 votes. Dr. King estimated that there was only a slight chance that discarding the questionable ballots would have made Mr. Gore the winner.

Separate from this investigation, a consortium of newspapers, including The Times, has hired experts to examine all ballots cast in Florida to see whether the official count was affected by faulty voting machines. The results are expected later this summer.

Many of the 680 flawed ballots in the analysis of the overseas envelopes had multiple defects, so the total number of flaws exceeds the number of defective ballots. The following questionable ballots were found:

344 ballots with no evidence they were cast on or before Election Day. They had late, illegible or missing postmarks.

183 ballots with United States postmarks.

96 ballots lacking the required signature or address of a witness.

169 ballots from voters who were not registered, who failed to sign the envelope or who had not requested a ballot. A request is required by federal law.

5 ballots received after the Nov. 17 deadline.

19 voters cast two ballots, both of which counted.

Canvassing board members struggled to strike a balance between counting as many votes as possible and safeguarding against fraud. Decisions were difficult, particularly with ballots that appeared to be from legitimate voters yet did not comply with the rules. In some cases, board members said they had used common sense and cited a Florida court decision that gave them some ``latitude of judgment.'' For example, the boards accepted 87 overseas ballots that arrived without a postmark a day or two after Election Day, judging that they most likely had been cast before Nov. 7.

Still, this benefit of the doubt was given to such ballots more than three times as often in counties carried by Mr. Bush, according to the Times database.

Both parties quickly recognized the importance to Mr. Bush of the uncounted overseas ballots, especially those from military installations. But the Democrats were preoccupied, particularly with their pursuit of manual recounts in several heavily Democratic counties. And their strategy for absentee ballots, which consisted of challenging as many overseas ballots as possible, backfired after they were accused of disenfranchising men and women in uniform.

The Republican effort on the absentees, by comparison, was methodical and unrelenting.

Benjamin L. Ginsberg, national counsel to the Bush campaign, recalled those days as being ``as hardball a game as any of us had ever been involved in.

``For any given five-minute period, we were confident we were going to hold on to the lead, and for any given five-minute period we were confident we were going to lose it all.''

The canvassing board members also have sharp memories of those days. Judge Anne Kaylor, chairwoman of the Polk County board, said the combination of Republican pressure and court rulings caused it to count some ballots that would probably have been considered illegal in past years.

``I think the rules were bent,'' Judge Kaylor, a Democrat, said. ``Technically, they were not supposed to be accepted. Any canvassing board that says they weren't under pressure is being less than candid.''

Mr. Ginsberg said, ``We didn't ask anybody to do anything that wasn't in the law as it existed on Election Day.''

Florida's certified election results, listed on the Florida Department of State's Web site, show that the Republicans' sense of urgency was justified. Although Mr. Bush appeared to hold a fluctuating lead throughout the 36 days of recounts, the Web site shows that without the overseas absentee ballots counted after Election Day, Mr. Gore would have won Florida by 202 votes, and thus the White House. But no one knew that until the 36 days were over; by then, it was a historical footnote.

Plotting Strategy To Protect a Lead

By midday on Wednesday, Nov. 8, Mr. Bush's aides were already plotting strategy on overseas ballots. Their first thoughts were about the potential for fraud, according to interviews and internal strategy documents. Might Democrats now quietly - illegally - reach out to overseas supporters, particularly in Israel, and urge them to send in their ballots? Could the Clinton-Gore administration interfere with the delivery of ballots from Navy ships, military installations and American embassies?

``The opportunities with absentee ballots via the postal delivery and retention process could pose a significant threat to the outcome of the election of the United States,'' Brigham A. McCown, a Bush lawyer, warned in a memorandum to campaign strategists that week. His concern grew, he said, when he found a photograph of a smiling Al Gore on a postal union Web site.

Although most of the overseas ballots had already been counted on Election Day, Florida is among a handful of states that give extra time for ballots to arrive from around the world. Unlike domestic absentee votes, which must arrive by Election Day, the deadline for overseas ballots was Nov. 17.

By 4 p.m. the day after the election, the Bush campaign had begun a pre-emptive strike, faxing a letter to each of Florida's election supervisors. Under Florida law, candidates and parties can obtain the addresses of overseas voters. But to make it difficult for Mr. Gore's campaign to track those voters, Bush aides wanted the supervisors to reject any post-election requests for the identities of voters who had not yet sent in ballots.

``We believe that such a request could only be made for an illicit, fraudulent and improper purpose,'' William R. Scherer, state co-chairman of Lawyers for Bush, wrote.

But elsewhere, the Bush team was itself exploring the legality of late voting - not by Floridians in Israel but by members of the military, who, according to its internal memorandums, were ``presumed'' to ``represent conservative electors.''

On Thursday, Nov. 9, Jeff Phillips, veterans' coalition director for the Bush campaign, sent an e-mail message to Samuel F. Wright, a Republican lawyer and an expert on overseas military voting. Mr. Phillips asked in the message: ``Can a service member vote in FL (especially after Nov. 7); i.e., can a sailor on the USS Tarawa cast a write- in vote November 10?'' In his e-mail response, Mr. Wright cited Florida law, which makes clear that late voting is illegal.

``It finally came down to us finding out what was legal and doing what we could,'' Mr. Phillips said. ``And if anything was not legal, we didn't do it.''

That same day, Mr. Gore asked that four Democratic counties do manual recounts, a prospect further endangering Mr. Bush's lead. ``As soon as the Gore people said, `We want to count all the votes, but only in our counties, with our Democratic-dominated counting boards doing the counting, without any set standards, making up new rules of the game after the election,' that was a sign to us that this was going to be a ballot-by- ballot battle and we could take nothing for granted,'' Mr. Ginsberg, the Bush campaign counsel, said.

With the terrain shifting so rapidly, Mr. Ginsberg assembled a task force of political strategists and corporate lawyers to focus exclusively on overseas voters.

To manage the political strategy, the Bush team enlisted J. Warren Tompkins III, the consultant who had helped Mr. Bush fend off Senator John McCain in the bitter South Carolina primary. David Aufhauser, a Washington lawyer and Mr. Tompkins's old friend, was to manage the legal strategy.

``There were two first things of concern,'' Mr. Aufhauser, now general counsel of the Treasury Department, said. ``One, were military ballots going to be properly counted? And two, were there overseas ballots that should be disqualified?''

To find out, Mr. Aufhauser and Mr. Tompkins sent lawyers and campaign aides to election offices in all 67 counties. To the Bush campaign's relief, local election supervisors had paid little attention to its letter about keeping overseas voter information confidential. There, lawyers gathered the names, foreign addresses and political affiliations of every overseas voter. They tracked which ballots had been returned, and which ones had yet to arrive.

``We wanted to know everything about this group - whether they were military or civilian, Democrat or Republican,'' Mr. Tompkins said. ``And I'd send the numbers, constantly, back to Austin.''

The teams made two critical discoveries. First, despite predictions by some Democrats that 1,000 ballots would arrive from Israel, just a few dozen were trickling in; ultimately, only 64 arrived.

Far more troubling were reports about military ballots. In county after county, Bush observers noticed that military ballots were arriving without postmarks.

Under a well-established legal standard in Florida, all overseas ballots must bear clear evidence they were cast on or before Election Day and mailed from outside the United States. State law required all overseas ballots to have foreign postmarks. In addition, a state rule said that such ballots must have been either ``postmarked or signed and dated'' by Election Day.

But most of the ballots did not have dated signatures because only one of Florida's 67 counties even provided a spot on the ballot for a voter to write a date next to his or her signature. In past elections, with few exceptions, the boards had routinely insisted on a postmark as proof of timeliness.

This seemingly obscure postmark standard was suddenly of crucial importance to the Bush strategists. Hundreds of overseas ballots that they wanted counted met neither requirement - the envelopes had no postmarks, and the signatures had no dates.

Not only were ballots coming in without postmarks, the Bush team had also heard scattered accounts of ballots sitting in mailbags on the decks of Navy ships.

By day's end on Saturday, Nov. 11, the Bush campaign understood that defending against fraud alone was too limited a strategy. To take full advantage of Mr. Bush's support in the military, offensive measures would be needed too. And with Mr. Gore closing the gap in the recounts, Bush strategists said in interviews, they calculated that they would need a net gain of 1,000 votes among the overseas ballots to seal victory.

It was an ambitious goal. In 1996, Bob Dole beat Bill Clinton by just 208 votes among Florida's overseas voters. The Republicans decided they had to make sure as many military ballots as possible arrived in Florida in time to be counted on Nov. 17.

A Rush to Retrieve Military Ballots

Around the world, on Navy ships and military bases, in embassies and vacation homes, Florida's overseas voters were transfixed by the unfolding drama. Most could only watch and wait; by Election Day, they had already voted.

But after Nov. 7, some hurriedly mailed their ballots, unaware or unconcerned that late voting is illegal.

Aboard the George Washington, an aircraft carrier then in the Adriatic Sea, Michael J. Kohrt recalled fellow crew members gathering around television sets on the morning of Nov. 8. ``We saw Florida was deadlocked, and everyone on the ship said, `Whoa, I have got to get my ballot in,''' he said. ``A lot of guys voted late.''

The Times investigation found a substantial number of people who, like Mr. Kohrt, knowingly cast their ballots after Election Day. Of the 91 voters interviewed whose ballots had either missing or late postmarks, 30 acknowledged marking ballots late. Only four were counted. Mr. Kohrt's vote, which he said was for Mr. Gore, was among those rejected.

In the days after Nov. 7, both the Postal Service and the Pentagon worked hard to ensure the timely delivery of absentee ballots to Florida.

``We need to make sure our Sailors have their vote count,'' said a Nov. 10 Navy e-mail message that urged at least 118 ships to check for any remaining ballots.

The Pentagon soon faced pressure from the Bush campaign. Leading Republicans in Congress wrote letters and made calls. Mr. Ginsberg, the campaign's chief counsel, faxed a letter to Defense Secretary William S. Cohen, the only Republican in the Clinton cabinet, on Nov. 11. ``We fear that, unless those ballots are collected immediately, they will not be delivered on or before November 17,'' Mr. Ginsberg wrote.

Robert Tyrer, Mr. Cohen's former chief of staff, said that Mr. Ginsberg, a friend of Mr. Tyrer's, seemed to be ``laying down a marker'' for the Republicans. But, he added, the secretary's office was ``determined not to be involved in the politics of the matter.''

In the end, the vast majority of the ballots - 97 percent - arrived before the Nov. 17 deadline. In previous elections, according to records and interviews, as many as a third arrived after the 10-day window had closed.

But The Times investigation indicated that the push to get the ballots in quickly only aggravated a problem that had concerned the Bush camp: 17 percent of military ballots arrived without postmarks, despite military regulations that require all mail to be postmarked. There is no evidence that the Pentagon knowingly delivered ballots cast illegally after Election Day.

In interviews, Pentagon officials could not fully explain why so many ballots were arriving without postmarks. They noted that a survey conducted after the election found less than 1 percent of all overseas military mail arrived without a postmark.

But a General Accounting Office study in May found a range of problems with how the military handled the absentee ballot issue, including inadequate training and supervision in its voting program. As a result of that and mail problems, the report said, Florida officials received ballots without postmarks, or witnesses, or even signatures.

The lack of postmarks made it impossible for canvassing boards to answer the threshold questions that determined the validity of an overseas vote: Was the ballot indeed mailed from a foreign country? And was it mailed on or before Election Day?

The lack of postmarks also posed political problems for the Bush strategists. Some Bush advisers, still fearful of votes from Israel, were preparing to seek strict enforcement of the postmark standard, according to documents and interviews. The Bush campaign even dispatched Jim Smith, a former Florida secretary of state, to emphasize the postmarking rule at a news conference on Nov. 12.

``The privilege to vote abroad comes with the corresponding duty to follow practices adopted by the State of Florida to assure timely and fair elections,'' Mr. Smith said at the news conference.

But even as Mr. Smith spoke, Bush strategists were shifting gears. They realized that unless they could persuade some local election officials to set aside the state's rules on postmarking, hundreds of ballots from military personnel, a reliable voting bloc, would not be counted.

In a single phrase of federal law, they found the statutory tool by which the Bush team would seek to undo Florida's postmarking rules. The phrase was contained in the Uniformed and Overseas Citizens Absentee Voting Act, a 1986 federal law intended to make overseas voting easier. One part of the law, a directive to postal officials, states that overseas ballots ``shall be carried expeditiously and free of postage.''

Although the law said nothing about postmarks, in the view of Mr. Aufhauser, the Bush lawyer, those eight words demonstrated that Congress never intended to require postmarks on overseas military ballots.

The lawyers realized they were putting their faith in an untested legal theory. The same federal law emphasizes the importance of state election rules.

As a backup, they zeroed in on a 1975 Florida Supreme Court ruling that said as long as there were no signs of fraud, canvassing boards had some discretion to accept ballots with minor flaws, like putting a signature in the wrong place or omitting a witness's address. Mr. Aufhauser decided that the Republicans would try to push this argument further than it had ever been pushed to get military ballots counted.

This conflicted with the Bush strategy to thwart manual recounts. In public statements by James A. Baker III, the former secretary of state leading the Bush recount team, and in the campaign's legal briefs, the Bush team argued repeatedly that it was unfair and patently unconstitutional for Mr. Gore to seek liberal recount standards in Democratic strongholds ``after the game has already been played.''

``It is not fair to change the rules and standards governing the counting or recounting of votes after it appears that one side has concluded that is the only way to get the votes it needs,'' Mr. Baker said.

Clouding the Matter Of the Postmark

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

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

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

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

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

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

Mr. 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 Ms. Harris's 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 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 Ms. Harris said she was unavailable for comment. The Times began seeking an interview with Ms. Harris two weeks ago, but her spokesman, David Host, said that Ms. Harris would prefer to comment in a written opinion article after she returns from a trip to Argentina this month.

Mr. Stipanovich and Mr. 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 Ms. Harris's office about changing the rules. Mr. 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 Mr. 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. Mr. 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.

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