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Bush Unelected
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In issue #317 (January 2002) of the apazine Alarums & Excursions, Paul Cardwell wrote, as part of a one-paragraph comment, “We have an undeclared war by an unelected president.” In issue #318 (February 2002), Simon Reeve replied at around 600 words’ length that, based on the information he’d seen in the British news media, Paul’s characterization was incorrect, and he brought up a number of points to back up his claim. I can’t let what I see as misinformation about so important a subject go uncorrected in a forum I contribute to, but I don’t want to crap up an apa devoted to role-playing games with political arguments, so I’ve put this page together, and am publishing the URL in my A&E contribution.
The specific claims that Simon made were:
I’ll be addressing these points, but I’ll start off with my own objections to claims of legitimacy on Bush’s part.
I can’t say what Paul had in mind when he called Bush “an unelected president,” but in my case, when I say it (and I often do), I mean that of the votes legally cast in Florida in the 2000 presidential election, more were cast for Gore than for Bush, and that most of the mechanisms were illegal that discounted enough Gore votes to make it seem that Bush had won, and that illegal means were used to keep many people (presumed to be mostly Gore voters) from voting at all. Specifically:
This has some complicated backstory behind it. As some readers already know, the laws in the US governing whether convicted felons may vote vary from state to state. In some states, felons are barred for life from voting. In some, they may vote even while in prison. In some, they regain voting rights some time after release from prison, sometimes automatically, sometimes after filing some paperwork. In Texas, a convicted felon’s voting rights are returned two years after discharge, probation, or parole, while Florida bars felons for life from voting.
Florida’s courts have repeatedly ruled that the state may not strip restored voting rights from ex-felons from other states who move to Florida. So if a native Texan felon does his time, is released, and then moves to Florida five years later, he retains his voting rights, even though a native Floridian ex-felon never regains those rights in that state. It's estimated (by Jeffrey Manza of Northwestern University, an expert in criminal demographics) that there are between 50,000 and 100,000 ex-felons from other states in Florida, and that around 80% have (or, by law, should have) intact voting rights.
In 1998, Florida contracted out to a private firm (Database Technologies, later acquired by ChoicePoint Inc.) the task of scrubbing the state’s voter rolls of ineligible voters — not only ex-felons, but also the dead, and lingering records of people who had moved. The Florida State Association of Supervisors of Elections warned the Secretary of State’s office (this was Katherine Harris’s predecessor, also a Republican) that eligible voters were being purged in addition to the ineligible, but the information was not made public. ChoicePoint refuses to reveal the methods they used to assemble their scrub lists.
This continued in the 2000 election. ChoicePoint provided to the Sec. of State’s office lists of thousands of voters to be removed from the rolls who should not have been removed. Some were people with mere misdemeanor, not felony, convictions. Others were those whose voting rights had been restored in the states in which they’d done their time. Some were obvious erroneous inclusions, like the 600 listees whose conviction dates were in the future (like 30 Jan 2007). Election officials often refused to restore these voters to the rolls.
According to Greg Palast (“Ex-Con Game” in March 2002 Harper’s), 57,700 names were on the scrub list. Furthermore:
That number makes up nearly 1% of Florida's electorate and nearly 3% of it's African-American voters. Most of the voters (such as "David Butler", a name that appears 77 times in Florida phone books) were selected because their name, gender, birthdate and race matched -- or nearly matched -- one of the tens of millions of ex-felons in the United States.
[...]
Of the "matches" on these lists, the civil-rights commission estimates that at least 14 percent -- or 8,000 voters, nearly 15 times Bush's official margin of victory -- were false. DBT claims it warned officials that "a significant number of people who were not a felon would be included on the list"; but the state, the company now says, "wanted there to be more names than were actually verified."
This list included a disproportionate number of blacks (in Hillsborough County, for example, 54% of those listed for scrubbing were black, though less than 12% of the county’s voting population is black), and 93% of blacks voted for Gore in 2000; among ex-felons in general, of those who retain or regain voting rights nationwide 90% tend to vote Democratic, so this illegal purging can be presumed to have a had a much bigger impact on Gore’s vote totals than on Bush’s. It’s hard to tell for sure how many people were deprived of their rights, because different counties treated the lists differently. In Madison County, elections supervisor Linda Howell rejected the list when she found her own name on it. Greg Palast, after examination of part of the scrub list, claims that:
[...] at least 2,873 voters were wrongly removed, a purge authorized by a September 18, 2000 letter to counties from Governor Bush's clemency office. On February 23, 2001, days after the U.S. Commission of Civil Rights began investigating the matters, Bush's office issued a new letter allowing these persons to vote; no copies of the earlier letter could be found in the clemency office or on its computers.
Sources for Voter Purge section:
Most of the attention in the post-election struggle was focused on the “undervotes”, those ballots that were rejected from the machine count because they appeared to lack a vote for president. Little was paid to the “overvotes”, the ballots rejected because they seemed to bear two or more votes for president. It may seem that such votes should obviously be rejected out of hand, but keep in mind that Florida’s election laws requiring counting ballots that show a clear intent by the voter to vote for a candidate, and I can think of some cases in which such an intent would be obviously clear to a human being, but not to a machine:
According to the Orlando Sentinel, the 6,000+ rejected ballots (3,114 of them overvotes) in Lake County, Florida included 622 ballots of the write-in type I describe above — 376 for Gore and 246 for Bush.
Since the 1970s, Florida’s election laws have required that county officials examine any “damaged or defective” ballots that can’t be counted by machines:
If any paper ballot is damaged or defective so that it cannot be counted properly by the automatic tabulating equipment, the ballot shall be counted manually at the counting center by the canvassing board. The totals for all such ballots or ballot cards counted manually shall be added to the totals for the several precincts or election districts.
[…]
No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.
That examination is supposed to be done on Election Day, and the ballots included in the initial tallies. This law is ignored in most Florida counties. The officials claim that the law refers only to machine errors, not voter errors but that's not what the law says, and the only court ruling on the matter, Beckstrom v. Volusia County, 1998, disagrees.
As the NORC ballot review shows, Gore wins Florida unless some pretext is adopted for rejecting votes. This has been misreported — most popular media coverage has focused on what would have happened had the US Supreme Court not stopped the recount, and claimed that Bush would have won. They generally support this claim by ignoring the overvotes, in the belief that the recount would not have included them (though the judge who was supervising the recount has said that he might have), and by ignoring thousands of legal undervotes in Broward and Palm Beach counties that the Bush team had manages to block the canvassing boards from including in their tallies.
Sources for Ignored Overvotes:
In 1997, Xavier Suarez seemed to have been elected mayor of Miami, Florida. His election was overturned several months later by the Florida Supreme Court (which actually has pretty substantial powers under Florida law to fix election problem), and the incumbent Joe Carollo declared the winner. The court had found that large numbers of fraudulent absentee ballots had been cast, to the benefit of Mr. Suarez, and threw out all absentee ballots. New laws were passed stating that only the voter, and immediate family member, or a legal guardian may fill out an application for an absentee ballot.
Fast forward to the year 2000. Suarez sits on the executive committee of the Miami-Dade Republican party. In Seminole County, as in many other counties, both major parties mailed out blank absentee ballot applications, but the Republican applications went out with a printing error: the voters’ birth dates were printed instead of their voter identification numbers. Lacking those IDs, the applications were invalid.
County election chief Sandy Goard allowed GOP operatives to correct and resubmit the applications, a clear violation of the law. (Goard made the opposite decision for a very similar case involving a Democratic candidate for commissioner — see “Another supervisor scrutinized”.) The Gore campaign sued to have the ballots declared invalid, but the request was rejected.
Personally, I agree with the ruling. I was very uncomfortable with the attempt to have the ballots of voters who had voted in good faith invalidated for a minor screw-up, but I mention this as an example of a case where election law was ignored to validate legally invalid ballots to help Bush, in stark contrast to cases where questionable ballots were rejected that could have helped Gore.
Sources for Modified Absentee Ballot Applications:
While most voters have to vote on Election Day, people who aren’t going to be in their home counties can apply for absentee ballots. Absentees within the United States (such as a student at a college far from home) have to have their ballots in by Election Day, but those living overseas are allowed some degree of slack. They must mail their ballots no later than Election Day (as proven by the required postmark), but (in Florida at least; I'm not sure how much of this law is federal and how much state) the ballots are allowed ten days to arrive.
When arguing for the inclusion or rejection of questionable absentee ballots (which, as I point out above, have a history of being used fraudulently in Florida elections), the Bush campaign tried to portray itself as a noble defender of military voters. In fact, the Bushies were being selective, only defending the absentee ballots in Republican-leaning counties. In Democratic-leaning Miami-Dade, Broward, and Palm Beach Counties 362 out of 572 overseas ballots — including ballots from military voters — were rejected without any protest from Bush’s lawyers.
Out of 2,490 absentee overseas ballots counted as legitimate, 680 were actually illegal because they lacked witness signatures or postmarks, were sent after Election Day, were sent from somewhere in the US, or were from voters who voted twice. Around 80% of these ballots were from counties that Bush carried. Judges gave ballots the benefit of the doubt three times more often in Bush counties than in Gore counties.
Sources for Improper Absentee Ballots:
The Florida Republican party sent a mailing was out (signed by governor Jeb Bush, brother to the presidential candidate) encouraging Republican voters to vote absentee for their own convenience, to avoid long lines at the polls. Florida election law says absentee balloting is allowed only for voters who will be absent from their counties on Election Day, or those who are hospitalized or in assisted-living facilities. 50% more voters voted absentee in 2000 then did in the previous presidential election, and the absentee voters favored Bush.
Meanwhile, some polling places were moved without notice, and others closed early, depriving some voters of the opportunity to vote. Many polling places weren’t handicapped-accessible. The state didn’t provide the resources necessary to cope with problem voters.
The net effect of this was a level of illegal disenfranchisement that had less effect on Bush voters than on Gore voters.
Sources for Convenience Absentee Ballots:
In this section I bring up points that aren’t necessarily part of the main thrust of my argument about Bush’s illegitimacy, but do address things Simon said that I think need addressing.
I think the Electoral College is an obsolete and anti-democratic relic that should be done away with. It won’t be, because that would require amending the US Constitution, which would require the votes of the state legislatures of states that benefit from the College, so this is purely an abstract argument. At some point I may expand on this, perhaps spawning off a separate page.
For now I’ll just point out that the Gore campaign never tried to turn any electors, and never challenged the validity of the Electoral College, despite columnists and supporters calling upon them to do so. The Bush campaign, on the other hand, did have plans to do just — with a talk-radio campaign and advertisements and help from the media — that if they happened to wind up with the popular vote but not the electoral vote. A Gore campaign aide said, before the election, that the Gore campaign had similar plans, but when the actual chips were down, Gore publicly stated that he would “not accept the support of any elector pledged to Governor Bush”.
Sources for Electoral College:
Simon’s description of Florida Secretary of State Katherine Harris as simply “a Republican” falls way short of the mark. She was the co-chair of Bush’s Florida campaign, and a delegate to the Republican national convention. Her actions on Bush’s behalf went well beyond just failing to give the Democrats “a sporting chance.” The GOP “war room” for the recount battle was run out of her office, and she gave Republican operatives illegal access to state-owned facilities and computers during the recount, and reformatted the computers’ hard drives afterwards.
Sources for Katherine Harris:
A common claim the Republicans have made is that the Democrats were trying to “change the rules” and “invent more votes” in Florida. Simon, having read some of this propaganda, claims that the Democrats were “trying to change the rules about what would count as a valid vote in that election after — and only after — they’d seen that according to the definition previously accepted by all parties involved they’d already lost.” I’ve quoted that section again to remind you of the exact wording.
First, as far as I can tell there never at any point in the post-election mess was any vote-counting standard that all (or even both) parties accepted. Florida’s election laws specified intent of the voter. In Palm Beach County, the canvassing board initially decided that only chads that were at least partially detached should be counted, and not merely dimpled chads, but later (after a judge had ruled that dimples could not be rejected out of hand, but only after examination and consideration of voter intent; this same judge, Jorge Labarga, ruled in Bush’s favor on another issue, suits challenging the legality of the famous “butterfly ballot”) announced that dimpled chads would not be considered on a ballot where other votes were clearly punched, but would be allowed on ballots where there were several dimpled chads, indicating that the voter was having trouble punching out the chads. William Rouverol, one of the engineers who had helped invent these voting machines, testified that in his opinion, dimpled chads should be counted.
Part of the reason that the chad issue sounds so confusing — and therefore part of the reason that the Republican propaganda about how Democrats were “changing the rules” is so easy for a naïve reader to believe — is that the standards for counting the ballots varied from county to county. This was the very reason the US Supreme Court gave for halting the recount in Bush v. Gore, but if that’s what Florida’s election laws called for, then arguing for a uniform standard was itself a case of changing the rules after the fact.
Another part is that many people didn’t bother to distinguish between the various counts: the initial mechanical count, the mechanical recount required due to the close result under Florida law, and the manual recount that Gore asked for so that votes ignored by the first two counts could be taken into consideration.
Anyone who is truly, as Simon claims to be, disgusted at people who attempted to change the rules of the election after the fact, must surely feel at least some disgust for the Republicans who tried to keep the legally allowed manual recounts from occurring; or overturned the existing “intent of the voter” standard for counting ballots; or who argued before certification that the proper time to context results is after certification, and then after certification argued that the proper time was before; or the US Supreme Court Justices who ignored legal precedent, logic, and their own long-standing devotion to the principle of federalism to install their chosen candidate in office.
Sources for Changing the Rules:
As for Simon’s claim that the election must have been legit because “Democrats aren’t still fighting the decision in the law-courts,” this must be a case of a foreigner not understanding American politics and law. Bush v. Gore, the decision that halted the recount, was decided by the US Supreme Court, the highest court in the land; American law doesn’t provide for appeal to any other authority.
Pigs & Fishes >
Bush Unelected
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