OA4: The 2000 Election (#NeverForget), Part 3

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode number four and we're getting into part three of the epic of Bush v. Gore, so... So... let's go into it. Bush v. Gore, in you've suspense. I mean, we know the ending, but what happened? The vote. So it hasn't been called either way, right? Where are we? We're on election day morning, I guess. Or is that what you would call it? The day after the election?

0:01:39 Andrew: We We're A couple days after the election, there Is A Yeah.

0:01:42 Thomas: We're still a couple days. Okay.

0:01:44 Andrew: Oh yeah, there is uh a Florida state law that requires a mandatory machine recount of all the votes. And as a result of that machine recount, we are left with a Bush margin of 537 votes in the state of Florida out of 5 million that were cast, which is one one-thousandth of one percent. But of a sudden, folks on both both legal teams noticed that the machine recount was missing certain kinds of votes.

0:02:21 Andrew: And essentially, there were three different kinds of mistakes that I'm calling the mistakes, but we'll sort of go into the categories.

0:02:30 Thomas: Let me, sorry, can I just, so that we know what's going on. So, and this is, again, this is a product of my not being old enough at the time. So we still don't know who the president is. Nobody's been declared president, but we're, or is it presumptive President Bush, yet this is the dispute or what's the status legally of president right now.

0:02:31 Andrew: Yeah, sure, sure. Yeah, No one has been declared president, president. There is the Florida's Republican Secretary of State is a woman named Katherine Harris, and she has publicly said that in her opinion that Bush has won the state.

0:02:55 Thomas: Okay.

0:03:10 Thomas: Oh, well, we can just take go with that then. Yeah.

0:03:13 Andrew: But there are challenges to her certifying in an official capacity that bush Bush has won the state. And that's what we're going to talk about. Get me wrong. And if you know the punchline and know the result of the 2000 election, which you can find out rather easily, it's better to be Bush than Gore at this point, because the votes are in, they have been tabulated. They show a very, very narrow margin for Bush. And the statewide mandatory machine recount, which can be done very, muy quickly, is in, and that shows a 537 vote advantage to George W.

0:03:53 Thomas: Oh. So that didn't even change the

0:03:55 Andrew: Bush.

0:03:55 Thomas: Numbers.

0:03:55 Andrew: Now, that's what solidifies the number, right?

0:03:56 Thomas: So it, that's incredible. That is incredible. See, I didn't expect that. I would expect that when you're dealing with those kinds of numbers, you know, I would expect any sort of recount to be off by a certain amount. Like, oh, it just, oh.

0:04:09 Andrew: Well, it was, remember that I said when you're just hand tabulating the results from the machines, you got between 300 and 900 votes in Bush's favor. So once everything has been solidified, it comes out at 537. That's the number that we're working with from what the machines have reported. But there's an important question, which is Florida election law says you are supposed to report what have voted if their intent can be ascertained,

0:04:19 Thomas: Okay, okay. Okay oh.

0:04:45 Thomas: So So that answers the question we kind of posed toward the end. So how long did it take for them to figure that out? I mean, we're still on day two or something.

0:04:53 Andrew: Yeah, and the answer is that we have a disagreement as to what that means. So let me read you what the Florida law says, okay? The Florida law says no vote shall be disregarded, quote, if there is a clear indication of the intent of the voter as determined by the canvassing board. OK, but and that's an administrative agency that's in charge of tabulating

0:05:01 Thomas: Okay. Oh, okay. Yeah, I was going to say, who controls the canvassing board?

0:05:20 Andrew: Up tabulating of these votes. Right, right. And that is mostly bipartisan. So there's a Republican governor and not only is there a Republican government, but the Republican governor is Jeb Bush. So he has more than just a passing political interest in his brother being named president, and Republican officials sort of in every branch of, in every key office, including Secretary of State. State. But when you get more down to the local level, you get more Democratic representation. And the Florida courts are a more mixed bag. So we're going to get to all of that. But that's politically where it stands. And also the Supreme Court has five Republican appointees.

And for the United States Supreme Court, I should say, has five Republican appointee and four Democratic appointees on it. Um, so the Florida law says you can't throw out someone's vote if there's a clear intent for them to vote for somebody. All of a sudden Gore officials started looking at votes that were being thrown out by the machines as part of the recount and counted as no vote, and they discovered three kinds of ballots that were being rejected during the machine. Okay, those three ballots are, are undervotes, overvotes, and other. So let's walk through what each of these are. The first is undervotes. And these are the ones that you, Thomas, remembered at the beginning of our previous episode. You might remember the jokes about the hanging chads

0:05:26 Thomas: Okay. Okay. Sure.

0:07:00 Andrew: Or the dimples. And basically what happens is you have a ballot and you punch through the voting booth, usually has a little metal stylus connected and you actually punch through the hole. And when you punch through the whole, that's next to, you know, Bush or Gore or Nader or Pat Buchanan or any of other several minor candidates who are on the ballot in Florida. But sometimes you punch through the hole, it looks like you've punched through the the hole, but really what you've done is you've punched out the bottom two corners and you've just pushed back the little flap of paper and so and

0:07:40 Thomas: So as we know, Florida is heavy on, you know, we've got a lot of elderly voters and their feeble hands were not to punch through. No, is that not it? Or is it, is it machine failure?

0:07:47 Andrew: So yeah and so now well you know who knows well

0:07:53 Thomas: It could be one or the other.

0:07:54 Andrew: It's it's you, it's results in a situation. I don't know why the hole doesn't get punched through all the way, right, that is that is you, that is arguably user error, but you could punch through, you could push the little flap 180 degrees all the way back, right? And that flap would then be stuck against the back. It gets run through the feeder and the machine goes to count the vote, the little flat gets pushed back again and the machine reads it as no vote. Does that make sense?

0:07:59 Thomas: Okay.

0:08:27 Thomas: It does. I think, I think we've got a helpful sound effect, which is the sound of them tabulating those, those votes. No. Yeah.

0:08:35 Andrew: Sorry.

0:08:35 Thomas: But, but in my, in my view, it sounds like that would be a clear vote. That would be something where we know what their intent was. Seems reasonable. It's not like they, you know, it's not like punching it part way means they actually meant to vote for the other candidate, right?

0:08:51 Andrew: Yeah, that's exactly right. And that is the sort of first class of votes where the machine is counting that as a zero, right? The machine says, you didn't vote for anybody. And if you were to show that ballot to somebody, they would say, yeah, look, like I punched a hole through that. And very clearly, I intended to vote for George W. Bush. And it's disregarding my vote. And remember, I read you the Florida statute that says you can't disregard the vote of a voter if they've expressed their intent, right?

0:09:23 Andrew: Now, I gave you the best case hanging chat, right, which is you punch through, it flips it all the way backwards, the bottom two corners are off, but anybody would hold that up and it would look like a clear hole punch, but it gets, the flap gets pushed back down when it's read by the machine. There are a lot of those. But then there are, what do you do about, I've punched off one corner, and it's hanging out. I've punched off three corners, but the little piece of paper is kind of visible. I punched out two of them, but a little jagged tear is still left. Or,

0:09:01 Thomas: Yeah. Right. Well, again,

0:09:58 Andrew: Yeah,

0:09:58 Thomas: I mean, if the punch is at the, it's not like there's another equal punch for Gore and Bush, you know, like it's still, doesn't seem reasonable that you could still argue that the only possibility is that they're voting for that candidate if there's any sort of punch by that person's name.

0:10:16 Andrew: Now, let me ask, does it change your mind if I tell you that the ballot has written on it in capital letters? It says, "After voting, check your ballot card to make sure your voting selections are clearly and cleanly punched and there are no chips left hanging on the back of the card." Okay. Does that Change your mind by?

0:10:35 Thomas: Well, that, well, I, here's what I would say. As a legal expert. No, as not a legal, as someone who's learning from a legal expert. I would say that the law would override that, I would think, because the law says if it's clear that if they can determine who you're voting for, then that counts. Whereas it almost like when you give some, it would be almost like some wording in a contract that's not really enforceable because it goes against some law or something like that. That would be what I would would think. Let me know if I'm way off.

0:10:41 Andrew: The Way, I think the topic of provisions that are in a contract that are unenforceable, particularly when it comes to things like rental leases, would be a great future episode of Opening Arguments. So Let's let's tease that One because That's the kind of question I get asked all the time by, you know, friends and family is You Know I Signed A

0:11:22 Thomas: Yeah. Good idea. Yeah, geez, we you could do a whole thing. Getting out of a lease would be like a huge that would be like a really useful thing.

0:11:36 Andrew: That we would have to, we would have to clearly play the disclaimer That's why we have that, but we're definitely going to do that on topic, but no I Think

0:11:40 Thomas: Oh, yeah, true. I got a legal question for you. Being on a legal podcast, I don't need a disclaimer, right? People know that I'm not a lawyer. It's only because you're a lawyer that you or do I or would I theoretically need to say, look, guys, I I don't, don't take any dumb thing I say.

0:11:47 Andrew: No No You Yeah And and and another part of the reason why we need to have the disclaimer is because I am prohibited from practicing law with a non-lawyer, right, and and splitting those proceeds. So if what we were doing was practicing law, I would be disbarred for that, and rightly so, I Mean, you know, um So, uh So Let's Go Back, let's Go back to the hanging chads, um, I think I happen to agree with your intuition. And I would agree with it, by the way, regardless of the Outcome. And I think for the reasons that you've said, which is to say that the law specifies shall not be disregarded. And I think that trumps the instructions. I think it's a tougher call when it comes to what we call as the dimpled chads. And that, you know, you really have have to to picture the, you know, completely enfeebled voter, uh, who's, you know, the kind of like Mr. Burns, like lack of strength, where they've pushed it with all their might and have just managed to like put a dent in

0:12:17 Thomas: Yeah. Yeah. All right. Hanging chads. Yeah. Of the outcome.

0:13:01 Thomas: Yeah.

0:13:01 Andrew: The in the paper, again, it probably shows intent, um, but I think there's sort of a greater, it's a harder call with that In my view, um, but those are undervotes, so undervotes are the hanging chads and the dimples. Now the second category is going to make it a a little harder. These are overvotes. And you might think, can easily figure out what that is, right? That's where we voted for more than one candidate for president. And he would say, well, who could possibly be that stupid? And I'm going to tell you, Thousands of voters in Florida could be that stupid. And here's a good example of an overvote.

And maybe we can link some of of these in the show notes, uh But there were, there are ballots where, um, it says circle, right, not all have these, this is a different county, not all counties have the same mechanisms, some say circle your choice for president, right, and there are ballots where people have circled Bush and then crossed out Gore, right, and the optical scanners on the machines read that as Whereas you voted for, but there's a mark next to Bush. There's a mark next to Gore. That's clearly a Bush vote, right? Let me give you another example. There was a ballot where somebody voted for Bush, circled Bush, and then also, don't ask me why people would do this, but wrote in Bush on the write-in line, right. Right. So they Bush, I bet they really, really like

0:13:09 Thomas: Sure.

0:13:27 Thomas: Thousands. Yeah.

0:13:37 Thomas: Sure. Yeah.

0:14:24 Andrew: George W. Bush. So, you know, the guy so

0:14:25 Thomas: Well, maybe they're writing in Jeb. They're circling. Yeah. There's. Yeah.

0:14:26 Andrew: Nice. Yeah. But they voted for Bush and then they've written in Bush. So these are what we call or what we'll call then overvotes. You can see how we've now moved sort of one step further removed. Right. Where you're still trying to follow the law. I would argue the circled Bush and scratched out Gore is demonstrating a voter's intent, but you can see how that's a harder call. You can see, you know, how far down the road of disregarding the instructions are we going to go? Up. There was a very famous ballot at the time that was punched through for Gore and someone had wrote in, had written in on the write-in line, lizard people.

0:14:37 Thomas: Okay. Right.

0:15:17 Andrew: So, you know, that gets kicked out. And I think you have to kick out the lizard people ballot, even though it's clearly a joke, right? Like, I mean, it's obvious that is not, I voted for Gore, and then I changed my mind and really wanted the lizard people. Like, it was just a dumb ballot and, you know, nobody thought voting in Florida that they were going to be in a margin of 537. So that's overvotes. Now, what other mistakes are there? Most classic one that I can remember, we have to link to this in the show notes, deals with was called the butterfly ballot in Palm Beach County. And I don't know if you remember this or not.

0:15:32 Thomas: Yeah. Yeah. Oh, I remember that that phrase butterfly ballot, but I don't I can't remember the details.

0:16:00 Andrew: Right. So here's the way it worked. The holes. This will work better if you click on the show notes and go to the link to the picture of the butterfly ballot that we're going to give you. But the holes to be punched and the stylus run down the middle of two pages that are opened like a book, okay? If you can picture that in your mind. On the left-hand side are 1, Bush, Cheney, 3, Gore, Lieberman. Under that, 5, a minor candidate, 7, a minority candidate, 9, a moderate candidate. And on the other side is two, the Reform Party, Patrick Buchanan and whoever his crazy running name was, I forget, and I'm not loading the ballot at the moment, and then four, six, eight, ten minor candidates. So in other words, in Palm Beach County, to vote for Al Gore and Joe Lieberman, you had to punch hole number three.

0:16:08 Thomas: Mm hmm.

0:17:01 Andrew: But if you were looking at the left side of the ballot, and we read left to right in English usually uh they were the second listed candidate and now there are little triangles that point to the holes um but what what people discovered was that um in Palm Beach County, which I might add is a heavily Jewish county, right, there were 3407 votes for Pat, for Pat Buchanan, okay, of the Reform Party, and uh there was a an article in the American Political Science Review, it's by Wand and a long list of co-authors, that that basically said if you looked at uh Patrick Buchanan's totals everywhere else in the state of Florida that didn't have this stupid butterfly ballot thing, he, you would have expected him to get about 500 to 600 votes maximum, right?

0:17:53 Thomas: Yeah.

0:17:53 Andrew: And he's got 3400. And of those, then what they did was, and this study, by the way, this was not done, obviously, at the time. This was all done after the fact. So he's got 2,800 more votes than you would expect based on statistical sampling. And of those 2,800, if you look at the down ballot votes, right, like, so what you would have is if you had a ballot that was punched for Pat Buchanan for president, and then, you know, straight Democratic ticket, because it was not butterfly for the other offices, for there was a heavily contested Senate race at the time, there were minor offices, there Were the local offices or whatever, you look look at a ballot that is, you know, Pat Buchanan and eight Democrats, and you think, well, that was probably meant to be a Gore ballot, right? But, and I'm not, well let me ask you, what do you do about that ballot?

0:18:02 Thomas: Right. Right, yeah, yeah. Oh, that, I mean, I don't think you can do anything but but count how they voted. I mean, I really, if they, if they wrote in, or you know, if they, if they dimpled or whatever the hell, Pat Buchanan, I mean, that's what you got to go with. I don, I don't think you can decide that they actually didn't mean that. I think that's a way different thing, personally.

0:19:07 Andrew: Does it change your mind? If, I mean, hypothetically, you pick that person out and say, who did you vote for in this election? They say, I definitely voted for Al Gore, and you show them the ballot and they say

0:19:21 Thomas: Well, are you able to do that?

0:19:22 Andrew: Well they did that with some people but the question is can you draw a statistical influence and would it matter well

0:19:24 Thomas: Okay. I was going to say, I would have to know what any sort of the legality behind this. I suppose it would go under the category of, can you prove that there was election fraud or in some way? I mean, I'm not the expert. What's the current, what would happen if an election now, it was determined, oh, this was an intentionally, or maybe accidentally, but very confusing ballot, and people didn't know who they were voting for. What if you prove that? Would you be able to do something about it in time for the results, or would it take too long to appeal and do all that and figure it out? And what would you do currently?

0:19:46 Andrew: Let me answer that in two ways. Number one, I'm trying to push you to see if you would make an argument in favor of trying to do something with these Buchanan mistakes, because I think the answer, the real-life answer is nobody tried to do anything with them, and I don't think you could meet the voter intent standard based on just statistical sampling, even though the statistical sampling I think is a really, really strong inference.

0:20:41 Thomas: Yeah.

0:20:41 Andrew: I mean, it is almost positive that thousands and thousands of votes were cast for Pat Buchanan that should have been cast for Al Gore. And if you could match up one by one people with their ballots, that they would tell you to a person, oh, yes, I thought I punched the Gore circle, I agree with you that your remedy, and it might not even be a remedy that that would wind up being a useful remedy, because to find out the facts would be, you know, after the election was over, and, you know, it would, it would just be very, very difficult to get any real relief.

But you would have to prove that that the ballot was deliberately engineered in a way so as to be confusing. And I don't know, and as far as I know, as far as I know, there are, it's a great question, every state has different election laws, and in the modern era, the post-voting rights era, I don't know of any case involving accidentally confusing ballots. Certainly, there There are, if you go back to the Jim Crow era, there are, you know, and you look at literacy tests and the like, there was case law with respect to intent from how ballots were designed. But I could certainly imagine that this was, you know, complete happenstance. And I should point out again, Palm Beach County, very heavily Democratic County, I believe the ballot was designed by a Democrat.

0:21:27 Thomas: Well, why do you have to prove it's deliberate? I mean, what if it's just accidentally completely confusing?

0:22:19 Andrew: So I don't think there was any foul play there. And I don't think in the absence of that, that you could invalidate an election based on a small percentage of people who were unable to figure out that, you know, that little triangle is pointing to the three hole. And

0:22:33 Thomas: Hmm. Yeah. Well, that, and that was my initial answer.

0:22:39 Thomas: Yeah, I don't, I just don't know that, I mean, it's interesting, but I would be very, I would be skeptical that you'd be able to overturn votes or, you know, whatever the remedy would be, I don't know, based on people getting the instructions wrong and just voting for the wrong person. I don't know how you'd ever prove that.

0:22:39 Andrew: Of us. Yeah. Yeah. Yeah. And I should point out, neither Bush nor Gore asked the courts to look at the butterfly ballot or these other kinds of mistakes. But I think it's worth mentioning because, remember, the legal standard is intent. And we have this system whereby, I mean, you and I have sort of both agreed, Bush and Gore agreed, the courts all agree, that even though in your your heart of hearts, your intent is to go in and vote for Bush, excuse me, your intent is go in vote for Gore, you accidentally punch Buchanan, we all know, statistically speaking, that a large majority of you wanted to vote for for Gore, but we don't count it. And we give you no recourse to count it that way. And that, I mean, I think that sort of goes to, you know, the the ephemera of putting democracy into practice, as opposed to, having ideals, like, it's really easy to to say, yeah, you just count up who the votes are, but we got a good look at, you know, how counting up the votes might not equate to what's really in people's heads.

0:23:06 Thomas: Okay. Yeah. Yeah, yeah.

0:24:01 Thomas: Yeah it's more complicated than you think.

0:24:04 Andrew: Yeah, so those are the three kinds of mistakes. The only, and I was going to do this, and

0:24:04 Thomas: Yeah wait we covered all three so we got overvote, undervote and the butterfly ballot.

0:24:16 Andrew: Other, butterfly, right, exactly, Exactly. Yep. And I will tell you, the only votes that either campaign decided to go after were undervotes. They decided to punt on the overvotes, I'm not sure would do that.

0:24:17 Thomas: Oh okay okay.

0:24:33 Thomas: Like were they thinking it would even out or something? Like they were thinking it wouldn't make a difference maybe? Or oh

0:24:38 Andrew: I can tell you exactly what the Gore campaign was thinking. I can say I think what both campaigns were thinking. The Bush campaign was thinking, we have this won because we have an official total after a statewide recount, and we don't want to do anything that will disturb that. And we're going to oppose any methodology, even if it adds more votes to us, because we don't want to win by more than 537 votes. We've won. We want to conserve what we have.

0:24:46 Thomas: Great got it got it.

0:25:07 Andrew: The Gore campaign is thinking, we want to add votes in areas where we know we can add votes. And so ultimately, the strategy they selected was to challenge the rejection by the machines of the undervotes in four counties. So in Palm Beach County, in Miami-Dade County, in Volusia County, and I'm forgetting, there's a fourth.

0:25:37 Thomas: Now is there That's okay. Is there a downside or a limit to how many they can challenge? I get that you're saying you want to challenge the ones where it's likely that more votes were going to be cast for you. So the downside is you don't want to uncover any extra votes that were going for Bush. So they're just targeting these certain counties and that's it. It's surprising that it's only four or whatever.

0:25:58 Andrew: Well, yeah, Florida is kind of like a microcosm of the United States. If you look at just the land mass, it's mostly Republican because Democrats tend to be concentrated in urban areas which have a higher population density. So you You know these four counties are heavily Democratic counties. Now, you want to include, you cannot. The Gore campaign was not, it would be indefensible to say we only want to add in, you know, Democratic undervotes, right? Like they were at least saying recount all the undervots.

0:26:12 Thomas: Right, right, right. You just have to recount the undervotes. Yeah, yeah.

0:26:35 Andrew: Right, yeah. But they were saying we only wanna recount of the under votes in these four countries. And that winds up being important as we go down the road.

0:26:43 Thomas: Can I ask you, you've mentioned a few times now that you could have been involved, and sorry if you already answered this, but how exactly, what would you have been doing? Let's say you took that job or whatever. What would you be doing during this process we're talking about right now?

0:26:44 Andrew: Yeah. Yeah.

0:27:00 Andrew: In mind that the that the Bush strategy is to protect and sit on their 537 vote lead, the Bush campaign also has another advantage going for them. And that is we're after Election Day and time is of the essence. There is actually a federal law, it is 3 U.S.C. 1 and following, that sets deadlines for when states have to report their electoral vote totals. And those begin, there is what's called a safe harbor provision, and we're going to get to that when we talk about the case, but it's 3 U.S.C. 5. That first date is December 12th. Okay, so then you start counting back from that.

0:27:46 Andrew: And the Florida Supreme Court had set an initial deadline for any recounts of November 26. So you basically have three weeks in which to do write a machine recount super easy, you just turn on the machines, they flip through all the cards, they spit out a number. But right now

0:28:04 Thomas: We we already did that. And how that only took a day or two a

0:28:07 Andrew: That that took about a week. Week.

0:28:09 Thomas: Week. Okay.

0:28:10 Andrew: So now we're down, we've got two weeks left. And the more complicated, the more stuff you're asking for, the longer that's going to take. And you're sitting on a hard deadline initially of November 26. And You can understand from the state's point of view, like, well, look, we want to get this right. But like, you know, you could come up with a review standard that, you know, takes 10 minutes per ballot, right? And it would take a year and a half. Well, you know we're not going to, we're going to postpone naming a president until 2002. You know, just let Clinton stay in office for an extra two years while we, while we count things.

I mean, we've got to do this. So in fact, in Miami-Dade County, they started to do a hand recount. They had 11,000 undervotes. They got through 2,000 of the ballots by November 26th. In those 2,000 ballots alone, that was plus 168 for Gore, okay? So you can extrapolate that out. We're down by 537. It is, again, going by the statistical basis, almost a certainty that Miami-Dade was going to to find, you know, seven or 800 votes for Gore if they had completed the recount, but they didn't get the recount done by November 26.

0:28:25 Thomas: Deadline. Yeah.

0:28:40 Thomas: Right.

0:29:28 Andrew: So they gave up and they recertified their original totals, right? They didn't even add in the 168. They said, look, well, and you can understand that because they didn't get the recount complete. And you could say, you know, we all know Miami-Dade is a Democratic county, but you can't go through and take up one-fifth of the recounted votes and only report those totals, or at least I can understand the argument for defaulting back to original. So on November 26th, Miami-Dade County gives up, goes back, and reports their original total to the state. And November 26 is when the Secretary of State, Catherine Harris, certifies the vote totals with the original totals for a 537 vote margin for Bush. So

0:29:35 Thomas: Really?

0:30:25 Thomas: Alright, only one part left in the epic story of Bush v. Gore, tune in to the next episode to find out what happens. Thank you for listening.

0:30:42 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.