November 19, 2000
THE ELECTORS
G.O.P. Lawmakers Think They Have Ace in Hole
By SOMINI SENGUPTA and DEXTER FILKINS
--------------------------------------------------------------------------------
TALLAHASSEE, Fla. Nov. 18 — Republican state lawmakers here are homing in on an obscure, never used federal statute that, they contend, could offer them a decisive hand in choosing Florida's precious 25 electors if the normal voting process somehow leaves the outcome unclear.
Ordinarily, presidential electors are chosen through the popular vote and are expected to cast their ballots for the winning candidate. But Republican leaders, who control both houses of the State Legislature, say they are examining a federal law that they believe gives them power to seat electors if the outcome of the popular vote in Florida is unclear. The development was first reported Friday by The Pensacola News Journal and The Wall Street Journal.
"The specter is raised,' said Tom Feeney, a state representative from Oviedo expected to be elected as speaker of the House on Tuesday. "If the courts don't allow the executive branch to do their duty, then at some point we would have to review our constitutional responsibilities."
"At this point we're watching and waiting," Mr. Feeney added.
Electors must be seated by Dec. 12. Republicans and Democrats interviewed today said they hoped the matter would be resolved long before then. But if that did not happen, Republican lawmakers said today that they could invoke the federal statute. They were far from certain exactly how to apply the law, and they said they were looking at retaining election law experts to help them wade through the statute.
In fact, only one thing seemed certain today: The Republicans were sorely disappointed that the Florida Supreme Court on Friday enjoined the secretary of state, Katherine Harris, from certifying her state's vote — an act that could have put Florida's 25 electoral votes in the Bush camp, pending the outcome of other lawsuits.
Johnny Byrd, a Republican state representative from Plant City, added, "If the secretary of state is still under an injunction at noon on Tuesday, at that point it's just a question of when to pull the trigger."
The trigger he is referring to is the Republicans' interpretation of Title 3, Section 2 of the United States code.
"Whenever any state has held an election for the purpose of choosing electors and has failed to make a choice on the day prescribed by law," the law reads, "the electors may be appointed on a subsequent day in such a manner as the Legislature of such state may direct."
The law has never been used, and by all accounts it is most likely to invite a bitter political tussle.
"To end an election with the Legislature taking over for the will of the people, that would be politically very risky," Lois Frankel, a Democratic state representative from West Palm Beach, said today.
Indeed, she added, she was doubtful of the prospect. "I can't even imagine why they would want to go there," Ms. Frankel said. "It almost leaves me speechless."
The state Republicans' latest announcement was seen by some, though, as political posturing to speed up a political compromise. The fact that the Legislature is considering intervening may accelerate the process of reaching a comprehensive compromise, said John Shubin, an election lawyer from Miami.
=============================================================
November 19, 2000
THE HISTORY
Florida Vote Recalls Another Squeaker That Put a Texan on Road to Power
By SAM HOWE VERHOVEK
--------------------------------------------------------------------------------
The Associated Press
Lyndon B. Johnson received returns in the 1948 Senate race that he eventually won by 87 votes and which became a chapter in American political lore. With him were Mary Rather and Walter Jenkins.
--------------------------------------------------------------------------------
AUSTIN, Tex., Nov. 18 — With his political career on the line and his cliffhanger Senate election transformed into a titanic legal struggle over how to count the votes, the young Texas congressman looked around a roomful of bright lawyers and asked a question: "Where's Abe?"
Abe was Abe Fortas, a brilliant New Deal lawyer, and the man who called for him was Lyndon B. Johnson. The year was 1948, and it was Mr. Fortas — whom Mr. Johnson would one day nominate to the United States Supreme Court — who soon devised the bold legal gamble for the congressman to follow.
Long before this year's presidential contest turned into a giant legal imbroglio in Florida, Mr. Johnson's 87-vote victory in the 1948 campaign had earned a major chapter in American electoral lore, both because of its immensely controversial nature and the epic turn of fate it later came to represent. Had Mr. Johnson lost that year, he surely would not have been put on the path that quickly took him to the most powerful position in the Senate, and on from there to the vice presidency and the presidency.
And as lawyers continue to wage the legal battles across Florida that will determine whether Gov. George W. Bush of Texas or Vice President Al Gore goes to the White House, the famous 1948 election has cropped up once again, as historians, reporters and Texas politicians here have traced some intriguing parallels between the two elections. In each case, the results of a remarkably close election were ultimately determined in the courts.
"The parallel between the two elections is that a vote was taken, but it wound up being taken out of the hands of the voters," said Robert Dallek, a history professor at Boston University and author of a two-volume biography of Mr. Johnson. "It ends up with lawyers and judges and courts, and it becomes a battle of a different order."
There are important differences between the two races.
Mr. Johnson, who had been in the House since 1937, was running for the Senate, not the presidency. His was an intraparty primary fight with a fellow Democrat, former Gov. Coke R. Stevenson, not a federal general election. And perhaps most important, while the 2000 election in Florida does not feature any widespread accusations of fraud, such charges did surround Mr. Johnson, and he carried them with him for the rest of his life.
They were implicit in the mocking nickname given to Mr. Johnson by his critics — "Landslide Lyndon" — and even as he was campaigning to a huge victory in the 1964 presidential election, President Johnson saw his Senate race back in the news.
"The Story of 87 Votes that Made History," said a cover headline in U.S. News & World Report. Newsweek, under the headline "History: Johnson Accused" reminded its readers that "suspicions have persisted that Lyndon Baines Johnson stole his way into the U.S. Senate."
At the same time, whichever candidate wins the White House this time around might be heartened to know that whatever controversy surrounded Mr. Johnson's victory in Texas, it did not in any way seem to impede his remarkable rise in the Senate. Within four years he was the Democratic leader in the chamber, and two years later, when the Democrats regained a majority, he became the most powerful man there. He continued as the Senate majority leader during his remaining years in the Senate. He did not face a major challenge in two subsequent Senate re-election races, and in 1960, he was elected vice president.
Any controversy over his Texas victory "didn't hamper him in the Senate," said Robert A. Caro, who has written two volumes of a Johnson biography and is at work on a third, titled "Master of the Senate."
"His rise to power was unprecedented in its rapidity," Mr. Caro said in a telephone interview, "and his use of the power in the Senate was in many ways unprecedented in its effectiveness."
The 1948 primary was tantamount to election in what was then a solidly Democratic Texas, and Mr. Johnson, then 39, staked his political survival on the contest, by not running for re- election in the House. And having believed that fraudulent late returns had cost him victory when he ran for the Senate seven years earlier against Gov. W. Lee O'Daniel, Mr. Johnson was determined not to be outfoxed again.
The results of the July 24 primary hardly looked promising: Governor Stevenson led Mr. Johnson by about 71,000 votes out of more than 1 million cast, or roughly 40 percent to 34 percent. But because Mr. Stevenson had not won a majority, he was forced into an Aug. 28 runoff. Mr. Johnson campaigned frenetically across the state, often showing up in a machine that many Texans had never seen before, a helicopter dubbed the "Flying Windmill."
On the morning after the runoff, Mr. Johnson was behind again, this time by 854 votes.
After several days of recounts and corrections and what historians agree was almost certainly a fair amount of vote-buying on both sides from the county leaders who had virtual fiefs in much of Texas, the margin was still more than 150 votes for Mr. Stevenson, according to Johnson biographies and news accounts at the time.
And then, a miracle — by some accounts, or a gargantuan fraud by others. Box 13 in Alice, a town in a South Texas county ruled by a party boss named George Parr, produced a previously unreported 202 votes. They went overwhelmingly for Mr. Johnson, and he was the winner by 87 votes out of nearly 1 million cast.
Intense legal and political wrangling eventually produced a 29-to-28 vote to certify Mr. Johnson by the Texas Democratic Party's executive committee, though a federal judge then ordered his name withheld from the ballot in the general election pending an investigation.
But in a frenzied round of legal battles, Mr. Johnson managed to block that investigation and get himself declared the winner.
The inquiry later found that those last 202 names were listed in alphabetical order, with identical handwriting, and some of those listed said they had not voted. Johnson partisans said the Stevenson campaign engaged in similar skulduggery elsewhere.
It was Mr. Fortas who devised the risky strategy for Mr. Johnson's legal battle: he essentially found a quick way to lose a round in federal court, only to have the case quickly turned over to the United States Supreme Court, where an associate justice, Hugo L. Black, ruled that the federal government had no right to interfere in a state election. That was the ruling Mr. Fortas really sought, because it meant the Democratic committee's decision in favor of Mr. Johnson would stand.
And so he was off to the Senate, and, by the accounts of those who worked for him, he never looked back.
"I don't think it ever bothered Lyndon Johnson," said 87-year-old J.J. (Jake) Pickle, a campaign aide at the time, who later represented Mr. Johnson's old district in the House of Representatives for 32 years and is now retired here in Austin. "He won, and he set out right away to become comfortable in the Senate and believe you me, he did. As far as he was concerned, it was done. He said, `Well, that's settled, now let's get down to business.' "
=============================================================
November 18, 2000
Gore Lawyers File Briefs to Florida High Court
By JULIAN E. BARNES
--------------------------------------------------------------------------------
As George W. Bush extended his lead in Florida by taking a significant majority of overseas absentee votes, Democrats returned to the state Supreme Court in the hope of forcing the secretary of state to accept the results of hand recounts in three Democratic-leaning counties.
Lawyers for Vice President Al Gore filed a brief to the Florida Supreme Court this afternoon, less than a day after the court ordered Katherine Harris, the Florida secretary of state, not to certify the election results at noon today, as she had planned to do. Lawyers for Attorney General Robert A. Butterworth, a Democrat, and Broward County also filed briefs today. Lawyers for Mr. Bush and Ms. Harris are scheduled to file a reply tomorrow.
Although Ms. Harris did not certify a final total today, she did announce that overseas absentee ballots gave Mr. Bush 1,380 additional votes while Vice President Al Gore gained 750 votes, extending Mr. Bush's lead to 930 votes.
The briefs filed in Supreme Court largely followed arguments already made in news conferences and in filings to lower courts.
Democrats argued in their brief that hand recounts in Palm Beach, Broward and Miami-Dade counties were legal. They told the court that Ms. Harris is legally required to include such recounts in the final, official results.
But Republicans have argued that Ms. Harris has the sole authority to decide whether hand counts should be included, and she had already decided that such counts were not necessary.
Karen P. Hughes, a spokeswoman for Mr. Bush, said that the Republicans hoped that the Supreme Court would side with them, ignore the manual recounts and allow Ms. Harris to announce an official count with Mr. Bush the winner.
"We are hopeful that once the Supreme Court hears arguments in this case on Monday, the laws of Florida will prevail and the election will be certified," Ms. Hughes said in a statement this afternoon.
In their brief, lawyers for Mr. Gore and the Florida Democratic Party asked the court to prevent Ms. Harris and the state Elections Canvassing Commission from declaring a winner of the presidential election until the manual recounts were completed.
"It is critical that the Elections Canvassing Commission's decision be made on the basis of the most accurate vote count possible, in order to eliminate the possibility that the identity of the winner will change — or even be called into question — by the outcome of the manual recounts," Mr. Gore's lawyers wrote.
Democrats argued in their brief that Ms. Harris had in five different ways tried to stop or delay the manual recount, then tried to exclude the hand counts on the grounds they were tardy. Mr. Gore's lawyers argued that there was no legal justification for Ms. Harris's action, and amounted to an attempt to reject thousands of ballots.
"She is seeking to reject some — but oddly, not all — votes that have been tabulated through manual recounts, which are lawful means for correcting errors in vote tallies, and thereby ascertaining the will of the voters," Mr. Gore's brief said. "This Court should hold that she cannot do so."
In the brief Mr. Gore's lawyers argued that machines misread ballots, and that in close elections manual recounts are necessary, and allowed by Florida law.
The Democrats argued in their filing that even if the court found the law Ms. Harris and the Republicans cited as a basis for rejecting the manual recounts applied, that "literal terms of a statute must yield when necessary to effectuate the electorate's will."
Friday, a Leon County Circuit judge refused to approve a Democratic request to override Ms. Harris decision not to allow counties to supplement their final official tallies from recounts done by hand. Mr. Gore's lawyers appealed that decision to the Supreme Court, which issued an order Friday afternoon barring Ms. Harris from certifying the results until further notice from the court.
Mr. Gore's lawyers had not asked for such an injunction, but rejoiced at the order, which they saw as a sign that the Supreme Court might be more receptive to their arguments than the lower court.
Democrats need the Supreme Court to force Ms. Harris to accept the results of hand recounts in Palm Beach, Broward and Miami-Dade counties if Mr. Gore is to have a chance of winning Florida's 25 electoral votes, and therefore the presidency.
Lawyers for Mr. Gore and Mr. Bush will present oral arguments Monday.
In the brief for Mr. Butterworth, his lawyers argued he had interpreted Florida law correctly when he advised Palm Beach County officials they could proceed with a manual recount, an opinion that contradicted the state Division of Elections, which is overseen by Ms. Harris. Broward County argued in its filing that local canvassing commissions have the power to determine when manual recounts are necessary.
============================================================
Let the Chads Fall Where They May
It's Bush by 930, whispers Katherine Harris. The hand-counters have their target — or do they?
BY FRANK PELLEGRINI
The Florida Supreme Court wouldn't let Katherine Harris name a president, but on Saturday she let her number be known anyway: Bush by 930 votes. The governor, says his spokeswoman, is "pleased." And with that number as our new uncertified finish line, the race is on between the hand-counters and the spinners, the courts and the people's patience.
Guess what. It might just be close.
In Broward County, hand-counters have held a quarter of their 400,000-odd twice-scanned ballots up to the light, fought over dimpled chads and fallen ones, and found only 50 net votes for Gore. Their final number is expected at the end of Monday.
In Palm Beach County, the manual counting of 462,000 is just beginning while the butterfly-shaped fight over 29,000 rejected ballots — 19,000 for double-punching, 10,000 for no punch at all, who knows how many for Buchanan when they meant Gore — lies in wait as a legal wild card. (And in GOP-heavy Seminole County, other judicial madnesses — an allegation that Republican get-out-the-absentee-vote drivers did too much of voters' registration work for them. Ruling due Monday.)
Miami-Dade County will start in on its 650,000 ballots Monday morning after a non-partisan judge on the board changed her vote Friday. Is that Gore's treasure trove? Maybe not — only just over half those votes went for the vice president, with some 290,000 going for Bush.
So 930 is Al Gore's target. But wait — that one's moving again too. Republicans are accusing Democrats of playing stickler with overseas soldiers after playing sympathetic with old ladies in Palm Beach. Of 3,626 mail-in ballots received, 1,420 have been rejected because of issues with postmarks, signatures and other extra-booth variables. Can a ballot without a postmark be deemed on time? Will it be post offices, foreign and domestic, that pick our president now?
Secretary of State Harris has weighed in, urging leeway — so has the Department of Defense. (So has Norman Schwarzkopf.) But different counties are counting different ways, the spinners are out in force and the lawyers are sharpening their briefcases. A new war is brewing.
And this one's got real warriors in it.
=============================================================
Gore, Bush Camps Brace for Battle, Recount Widens
By David Lawsky
Reuters
WEST PALM BEACH, Fla. (Nov. 19) - Democrats and Republicans bickered on Sunday over the manual recount in Palm Beach County, as workers laboriously sifted through 462,000 ballots that may decide the presidential race.
The disputes are background noise to the main event -- the manual recount of 1.7 million votes in Florida's three most populous counties.
In Palm Beach County, about one-third of the ballots have been counted so far. But few final results are available, because thousands of ballots questioned by Republicans or Democrats have yet to be reviewed by the three-member board.
Only then can final results be posted for more of the 500 voting districts, or precincts. And individual ballots may still be reviewed by a judge.
Democrats hope the recounts in the heavily Democratic counties will unlock enough additional votes for Vice President Al Gore to wash away Texas Gov. George W. Bush's 930-vote advantage. Nearly 6 million votes were cast statewide.
The winner of Florida's 25 electoral votes will win the White House.
Democratic lawyer Dennis Newman, citing the recounts in Miami-Dade, Broward and Palm Beach counties, said: ''I think all of those combined will be enough votes to win.''
But Newman conceded that there are serious questions about how many additional votes there really are for Gore.
He said Democrats have questioned many ballots, even after they are judged by the three member board.
Democrats say the board should count ballots which are ''dimpled,'' rather than having the ''chad,'' or cardboard piece, partially removed.
''They may end up with a judge,'' he said of the ballots.
A Palm Beach County judge ruled last week that counters must take into account the intent of the voter, no matter the details of the ballot.
For their part, Republicans continued to challenge the legitimacy of the entire recounting process.
A Bush-Cheney spokesman, Scott McClellan, said there was ''clear and compelling evidence'' that a Democrat was about to count 1,043 votes for Gore when the persons' Republican counterpart challenged the number. A check showed there were actually only 493 votes, McClellan said.
McClellan was not immediately able to say which team was involved -- there are 26 of them, each numbered -- or what time the alleged incident occurred. He said he would provide details later.
Each team has both a Republican and Democratic counter, who check on each other. In turn, a Republican and a Democratic observer watch the counters at very close range -- a matter of inches.
The entire counting room is also under intense scrutiny by additional lawyers, observers, sheriff's deputies, a pool of two reporters who swap every 30 minutes, and live television cameras.
McClellan also repeated a charge that some ballots had been found with chad taped back to the ballot and said Republicans wanted an explanation.
Newman said that there were about 10 taped ballots and that they had been found among the absentees. Absentee voters made a mistake and were unable to get new ballots so they taped the chad back on, he said.
Newman said the taped ballots were almost evenly split for the two candidates. He said they had been disallowed by the canvassing board and that both Republicans and Democrats had objected and sought credit for the votes.
16:12 11-19-00
================================================================================
What's Next in Florida Election Drama
Reuters
MIAMI (Nov. 19) - Monday marks 13 days since the U.S. presidential election with the winner still not known because of an unresolved vote in Florida.
Following are key upcoming events in the process:
TALLAHASSEE Fla. - Florida Supreme Court will hear oral arguments at 2 p.m. EST on Monday in battle over whether hand recount results should be added to Florida's vote total.
ATLANTA - 12-member U.S. 11th Circuit Court of Appeals has agreed to hear Bush campaign request and Republican voters' request to halt recounting of Florida presidential ballots, but has set no date to do so. The court refused on Friday to issue an emergency injunction halting the counts.
WEST PALM BEACH - State Circuit Court Judge Jorge LaBarga expected to rule on Monday whether he has authority to decide if Palm Beach County should hold a new election because of confusing ballot design.
SANFORD - State Circuit Court Judge Debra Nelson expected to rule on Monday whether she will hear lawsuit seeking to throw out Seminole County's 10,000 absentee ballots. The suit filed by a Democrat alleges the county's Republican election supervisor broke the law by letting party members complete absentee ballot requests that would otherwise be rejected due to missing information.
MIAMI - Miami-Dade County election workers set to begin hand recounting of nearly 700,000 presidential ballots on Monday. Time not set.
FORT LAUDERDALE, Fla. - Broward County election workers resume hand recounting of county's 588,000 presidential ballots at 8 a.m. EST on Monday.
WEST PALM BEACH, Fla. - Palm Beach County election workers resume hand recounting of county's 460,000 presidential ballots at 8 a.m. on Monday.
16:53 11-19-00
============================================================
For Immediate Release >> Sunday, November 19, 2000
ELECTION 2000: TIME Exclusive
Last Week, Daley and Christopher Informed Gephardt and Daschle That If Gore Couldn't Win on the Hand Recount, The Campaign Would Fold Its Tent, TIME Reports
Cautioned That Gore and Lieberman 'Aren't There Yet - But They Will Be'
New York - Late last week, Gore campaign chairman Bill Daley and former Secretary of State Warren Christopher quietly informed the Democratic leaders of the House and Senate, Dick Gephardt and Tom Daschle, that if Gore couldn't win on the hand recounts, the campaign would fold its tent, sources told TIME. They cautioned that "the principals aren't there yet"--Gore and Joe Lieberman weren't yet ready to go along--"but they will be." Daley and Christopher would find a way to get the message to them, TIME reports in its current issue (on newsstands Monday, Nov. 20th).
Gephardt feared that if Florida's secretary of state Katherine Harris certified a Bush victory, House Democrats would start abandoning Gore. "People are saying, Enough is enough," a leading Democrat said Friday. "It's time to be a good loser." To buy time, Gephardt organized a Friday-afternoon conference call for Lieberman and House Democrats. About 120 phoned in to hear Lieberman's pep talk.
At 4 p.m., as he was making his case to the members, Gore strategist Bob Shrum broke in with some startling news: the Florida Supreme Court had forbidden Harris to certify the vote on Saturday. The court wanted to hear arguments from both sides on Monday. Lieberman responded: "All right!"
=============================================================
Gore campaign 'trying to block military votes'
By Stephen Robinson in Washington and Toby Harnden in Tallahassee
Court battle as Bush clings on
THE painfully slow manual recount of Florida ballot papers took its most acrimonious turn yesterday when Republicans accused the Gore campaign of deliberately excluding servicemen's postal votes to fix the election.
Governor George W Bush comfortably won the overseas absentee vote by 1,380 votes to Vice-President Al Gore's 750 but, after vigorous challenges by Gore canvassers, 1,527 of the postal ballots, many of them from soldiers and sailors on active service, were rejected.
With the two candidates just 930 votes apart, every ballot paper counts and is being intensely fought over by Democratic and Republican party officials.
Gen Norman Schwarzkopf, the Gulf war commander who now lives in Florida, led Republican condemnation of a five-page guide which advised Democratic tellers how to raise objections to the postal votes.
He said: "It is a very sad day in our country when the men and women of the armed forces are serving abroad and facing danger of a daily basis . . . and are denied the right to vote for the president of the United States who will be their commander in chief."
Democratic tellers were advised to block ballots if there was no clearly legible postmark on the envelope, which is frequently the case when letters are posted from military bases. Normally, these ballots pass unchallenged.
Opinions are now hardening and many Republicans are seething at the Gore campaign's tactics.
Marc Racicot, the Republican Governor of Montana, said: "Last night we learned how far the Vice-President's campaign will go to win this election. And I am very sorry to say that the Vice-President's lawyers have gone to war in my judgment against the men and women who serve in our armed services."
The apparent effort to suppress the military vote put the Democrats on the defensive, particularly as it coincided with news that 39 prisoners, including murderers and rapists, had been allowed to vote in one Democratic-controlled county in violation of state law.
Senator Joe Lieberman, Mr Gore's running mate, appeared on yesterday's morning television shows to argue the case for the defence but he was non-committal when asked if he would instruct Democrats to allow the disputed postal ballots to be counted.
Thus far, Democrats have remained loyal to Mr Gore, publicly backing his decision to fight the election through the courts. But there is a growing sense of unease behind the scenes and a feeling that Mr Gore's interests in winning the White House may diverge from the Democratic party's interests in remaining respectable in the eyes of the electorate.
The disclosure that the party tried to stop soldiers voting while apparently encouraging convicted criminals to do so could help turn public opinion against a sustained legal campaign from the Gore team. With the Thanksgiving holiday on Thursday, there is a general desire to have the matter settled rapidly.
Republicans sought to damage Mr Gore's credibility by seizing on every potential flaw in the hand recount now under way or planned in three Democratic-controlled counties.
Karen Hughes, Mr Bush's communications director, said: "We now have clear and compelling evidence from eyewitnesses that this manual recount process is fundamentally flawed and . . . distorting, reinventing and miscounting the true intentions of the voters of Florida."
The Bush campaign was planning to send scores of extra lawyers and staff members to Miami today to oversee the hand recount there.
In Palm Beach, Judge Charles Burton, the Democratic county judge overseeing the hand count, pleaded with counters and observers for civility after a fracas broke out when a counter accidentally put a ballot in the wrong pile. He said: "You would have thought she'd killed 14 people."
In Duval county, a conservative area in northern Florida, 10 lawyers from each campaign scrutinised 600 or so postal ballots. Democrats challenged many of them, and 107 were eventually declared invalid after hours of wrangling.
Jim Post, a Republican lawyer, said: "A large majority were military. They were trying to get rid of everyone because this area of the state is conservative."
============================================================
Continue