Bush focus: Get in overseas votes

Florida election officials, facing intense GOP pressure to accept military votes, counted hundreds of such ballots that failed to comply with state laws.

By DAVID BARSTOW and DON VAN NATTA Jr., New York Times

© St. Petersburg Times,
published July 15, 2001

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 Bush's unofficial lead to just 300 votes.

With the presidency hanging on the outcome in Florida, the Bush team quickly grasped that their best hope of ensuring victory was the trove of ballots still arriving in the mail from Florida voters 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 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 New York 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 Bush, the analysis found. 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 New York 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 should not be changed in the middle of a contested election. It also conflicts with the equal protection guarantee that the U.S. Supreme Court invoked in December when it halted a statewide manual recount and effectively handed Florida to Bush.

After being told of the analysis' 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 New York 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 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 Bush 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 Gore was strong, Bush lawyers stood by silently while Gore lawyers challenged all 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 Gore accepted 2 in 10 ballots that had no evidence they were mailed on or before Election Day. Counties carried by Bush accepted 6 in 10 of the same kinds of ballots. The Bush counties were four times as likely as the Gore counties to count ballots that lacked witness signatures and addresses.

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

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

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 that they were cast on or before Election Day. They had late, illegible or missing postmarks.

183 ballots with U.S. 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.

19 voters cast two ballots, both of which were counted.

Five ballots received after the Nov. 17 deadline.

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 Bush, according to the New York Times database.

Both parties quickly recognized the importance to Bush of the uncounted overseas ballots, especially those from military installations. But the Democrats were preoccupied elsewhere, particularly with their pursuit of manual recounts in several heavily Democratic counties. And their strategy for the 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 her board to count some ballots that would probably have been considered illegal in past years.

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

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 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, 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.

Strategy to protect a lead

By midday on Wednesday, Nov. 8, Bush's aides were already plotting strategy on overseas ballots.

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.

Ginsberg assembled a task force of political strategists and corporate lawyers to focus exclusively on overseas voters. The task force sent lawyers and campaign aides to election offices in all 67 counties.

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.

As part of their work, the teams made a critical discovery: In county after county, 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.

Rush to retrieve military ballots

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.

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.

The New York Times investigation found a substantial number of people who 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.

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 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.

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?

Bush strategists 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 they would try to get around that problem. 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 David Aufhauser, a Washington lawyer who was hired to manage the Bush team's legal strategy, those eight words demonstrated that Congress never intended to require postmarks on overseas military ballots.

As a backup, the lawyers 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' address.

Clouding the postmark matter

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

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

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

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

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

"Adam would knock off a draft, and I would comment on it," Stipanovich said. "Clay would put in his 2 cents. Katherine would tell us what she thought. And we would do it all over again."

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 Harris' 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 New York 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 Harris said she was unavailable for comment.

Stipanovich and 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 Harris' office about changing the rules. 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 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. 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.

Two-tier fight with no let up

To get as many of those ballots counted as possible, the Bush team created a strategy memorandum, recently obtained by the New York Times, that 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. Specifically, the Bush lawyers were told how to challenge "illegal" civilian votes that they assumed would be for Gore and also how to defend equally defective military ballots, the document shows.

In recent interviews, the Bush lawyers involved in overseas ballots insisted that they had not approached the issue with a two-tier strategy. Their overriding intent, they said, was to be rigorously consistent, even nonpartisan, in their arguments.

"There was no such strategy to do something in Palm Beach that we did not do in the Panhandle," Aufhauser said.

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 Gore was strong and another in counties carried by Bush.

County by county, and sometimes ballot by ballot, they tailored their arguments in ways that maximized 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 told the board in Collier County.

Then, 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."

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, Gore's running mate, Sen. Joseph Lieberman of Connecticut, 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, Florida Attorney General Robert A. Butterworth, a Democrat and Gore's state campaign chairman, 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 Bush to win still more absentee votes. But the end was in sight.

The deadline for counties to submit official vote totals came at 5 p.m. on Sunday, Nov. 26.

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

Gore rejected his aides' advice.

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

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