This is a chapter Bob wrote for the League of Women Voters book Choosing the President 2004, published by Lyons Press. Bob was the editor of that book, as well as the subsequent edition, Choosing the President 2008.
The Florida Fiasco and its Aftermath
As the presidential election of 2000 came to a close on the night of Nov. 7, it gradually became clear that the outcome of the election rested on which candidate would win Florida. In a larger sense, that wasn’t a surprise. Opinion polls had been showing the Bush-Gore race as too close to call for weeks, and both campaigns had been operating full throttle into election day.
Early in the evening, the networks had declared Gore the winner in Florida, but as returns kept coming in, they quickly moved the state back into the “undecided” column. After 2 a.m. Florida time, though, the news media reported a Bush victory in Florida—which would mean a Bush victory in the entire election.
Al Gore phoned George Bush and conceded that he had lost. He was about to deliver his public concession speech in Nashville, Tenn., when Gore’s campaign operatives in Florida reached him with the news that the Bush’s margin of victory was so narrow that a Florida recount was mandatory. The race was still open.
From that point on, the United States found itself launched onto an enormously complex and confusing political journey that lasted 36 long days. Eventually, George W. Bush was declared the winner. But during those five weeks, many Americans grew angry, puzzled, amused -- and aware that what they had thought was a simple and straightforward counting of votes was in fact a highly political process.
In fact, for the first time in modern history, voter interest in a presidential election peaked after election day. Just before election day, a poll indicated that 46 percent were paying “a great deal” or “quite a bit” of attention to the election. The week after the election, that figure had risen to 80 percent.
Although the presidential election is of course a national event, the rules about voting are controlled by the states. Florida law said that if an election was won by less than half a percent, there would be a mandatory recount. At the end of election night, Bush was leading by 1,784 votes out of nearly 6 million votes cast – well under one-half percent.
The first Florida recount, done by simply running the ballots through the voting mechanisms again, narrowed George Bush’s margin to an incredibly small 327 votes.
With the entire U.S. presidential election now hanging on this razor-thin margin, both the Bush and Gore campaign teams sprang into action to make sure that their candidate wasn’t cheated out of a victory.
To win the presidency, a candidate must get 270 votes in the Electoral College. Without Florida, Gore had 266 electoral votes; Bush had 246. Neither candidate could win without Florida’s 25 Electoral College votes.
It soon became obvious the winner would be decided not by a simple mathematical recount, but that who did the counting and what the counting rules were would be crucial. Both the Democrats and Republicans had formidable assets.
In the Florida governor’s mansion was Jeb Bush, George W. Bush’s younger brother. And Katherine Harris, a Republican, was the Florida secretary of state—the state’s top election official.
But the Florida state Supreme Court was overwhelmingly Democratic, and the state attorney general was a Democrat. What’s more, the canvassing boards in charge of local elections were Democratic in most of the key counties.
Other factors – some not easy to measure – also played a role. The Bush team in Florida was large, very capable, and loyal to their candidate. It was headed by former secretary of state James Baker, who had managed four presidential campaigns. The Gore team, while it included highly capable people, had less substantial links to their boss.
The Bush team also displayed more political savvy in dealing with the media. The Bush campaign consistently put out the message that the election was over, Bush had won, and the president-elect was in Texas planning for his transition to the White House. The Gore forces never projected that confidence.
Republicans also seemed to grasp better than the Democrats that public demonstrations could have an effect on the outcome. At one key moment Nov. 22, when the canvassing board in Miami-Dade County was doing a difficult manual recount, an overwhelmingly Republican crowd gathered outside the counting room angrily shouting, “They’re stealing the election!” The canvassing board decided to shut down the recount, and the vociferous energy of the crowd most likely played a role in that decision, which benefited candidate Bush.
Key to Bush’s victory was that inescapable fact that in five weeks of recounts, court challenges and media frenzy, Gore never pulled into the lead in any official Florida tally.
What gave Gore the incentive (and some would say the moral authority) to continue his fight in Florida was that he had clearly beaten Bush in the overall U.S. popular vote.
According to the Federal Election Commission, Gore’s popular vote exceeded Bush’s by more than half a million. That meant that George W. Bush became one of the few U.S. presidents to win office without having the highest popular vote.
Key Issues in the Recount
While it is beyond the scope of this book to give a blow-by-blow description of the struggle for Florida’s 25 electoral votes, we can point out some of the key issues that emerged.
1. Badly designed ballots
In Palm Beach County, voters faced a confusing punchcard ballot, which opened up so voters could see two pages at a time –dubbed the “butterfly ballot.” Because the names of the candidates failed to align exactly with the punchcard holes for those candidates, thousands of voters made mistakes in voting.
The layout of the ballot meant that voter mistakes hurt Gore more than they hurt Bush. For example, in Palm Beach County, 5,310 people voted for both Gore and Pat Buchanan – which invalidated their ballot. Only 2,600 voted for Bush and another candidate. The Palm Beach Post estimated that Gore had a net loss of over 6,600 votes vis-a-vis Bush because of overvoting in the county.
This loss of votes greatly upset the Gore camp, but nothing could be done about it. It was impossible to determine, after the fact, which candidate those voters really intended to vote for.
In addition, many voters in Palm Beach who had intended to vote for Gore most likely unintentionally voted for Buchanan instead.
Similarly, in Duval County, the presidential ballot went on for two pages, and almost 3,000 voters invalidated their ballots when they voted for Gore on the first page and another candidate on the second page. (The Democratic Party had mistakenly told its supporters to “vote on every page.”)
2. Hard-to-count ballots
Florida law says that those counting ballots should determine “the clear intent of the voter.”
Twenty-five Florida counties used punch-card ballots to register votes. That is, voters used a sharp stylus to punch out small rectangles (called chads) from a card. The problem was that the chads often did not punch out cleanly, leaving an ambiguous record of the voter’s intent. The three large counties on which the recount controversy centered – Palm Beach, Broward and Miami-Dade – used this flawed system.
When doing hand recounts, the poll workers had to examine so-called hanging chads, dimpled chads and pregnant chads to try to determine whether a given punch-card registered a vote.
The scene, captured by the media, of poll workers holding cards up to the light, scrutinizing them for signs of voter intent, did not build confidence in the Florida recount.
3. Stop-and-start recounts
Exercising its rights under Florida law, the Gore campaign asked for manual recounts of votes in four counties in which there was already a substantial Gore lead. Behind by just 327 votes in the official count, they were hoping to pick up additional votes from the most promising jurisdictions.
The Bush forces, on the other hand, sought to limit recounts – they wanted to preserve their narrow lead.
Not surprisingly, Secretary of State Katherine Harris, a Republican, attempted to block the recounts when possible, or to limit their impact by requiring that the recounts be completed within short deadlines.
These issues – whether certain counties could conduct manual recounts, what the rules and deadlines should be, and when Secretary of State Harris could certify as final the results of the election – were given hearings in local Florida courts and the Florida Supreme Court. Recounts started and stopped.
Eventually, the U.S. Supreme Court put a stop to all the recounts on Dec. 9, and made its stay final Dec. 12.
4. Absentee and overseas ballots
In order to be counted, absentee ballots mailed to Florida from outside the United States had to be postmarked by election day, Nov. 7, and they had to be received within 10 days after election day. That’s how Florida law read.
The Bush and Gore forces each tried to make sure that overseas votes favorable to their side would be counted. It was generally believed that votes from military personnel would be more likely to be Republican, but the Democratic team was very reluctant to challenge ballots from the armed services. (In fact, vice presidential candidate Joe Lieberman spoke publicly against challenging military ballots.)
In the end, hundreds of overseas ballots were counted that did not meet the strict standards of Florida law, including ballots without postmarks and ballots that lacked required signatures. When the absentee ballots were counted, George Bush had widened his margin over Al Gore by another 930 votes. If flawed overseas ballots had not been counted, he probably would have gained 245 fewer votes.
On this point as on others, the Republicans organized to press their case – county by county -- more vigorously than the Democrats did. So in those counties carried by Bush, 6 out of 10 overseas ballots that did not have evidence they were mailed on or before election day were counted. In counties carried by Gore, only 2 out of 10 such ballots were counted.
5. The Question of Race
The Florida election system came under intense scrutiny in the 36 days after Nov. 7, 2000. A number of black and civil rights leaders angrily declared that African American voters had been disenfranchised in Florida in a number of ways.
Some impressive evidence supports those claims. For example, in the months after the election, eight media organizations (including The New York Times, The Washington Post, the Associated Press and The Wall Street Journal) joined together to re-examine in detail the problem votes in Florida. They hired the well-respected University of Chicago National Opinion Research Center (NORC) to go to Florida and examine and evaluate the evidence.
According to the New York Times analysis of the results, Florida’s predominantly black precincts had three times as many rejected ballots as white precincts.
That does not necessarily mean that authorities intentionally discriminated against African American voters. Other factors were probably important. For example, majority black precincts were more likely to have older unreliable voting machines and poorly trained poll workers. And a higher percentage of black voters had little education -- and low-education voters are much more likely to have their votes go uncounted.
But even when factors like education and income were taken into account, black voters were still twice as likely as white voters to have their ballots thrown out. Interestingly, analysis showed that Hispanics and voters over 65 were also twice as likely as white voters in general to have their ballots rejected.
In Duval County (Jacksonville), 20 percent of the ballots from African American areas that went heavily for Gore were thrown out. As mentioned above, a confusing ballot and misleading instructions to voters undoubtedly played a role in that circumstance.
In addition, in 1998 the state of Florida had hired a private firm to purge the voter rolls of dead people, duplicate names and felons, who are ineligible to vote. The firm did a very sloppy job, and many people were erroneously designated to be removed from the rolls. The firm’s report was so obviously flawed that many counties ignored it. Nonetheless, claims were made that a large number of Florida’s black citizens had been disenfranchised by this purge
After the election, the NAACP filed suit against the state of Florida over the purge. The suit was settled in 2002. The settlement required those counties who had purged voters to review the purge data and examine whether the purged voters had, in fact, been ineligible.
6. The role of the U.S. Supreme Court
As the battle for Florida’s electoral votes proceeded, the local circuit courts and the Florida Supreme Court became crucial battlegrounds. After an important decision in which the Florida Supreme Court ordered recounts to keep going (which helped Gore), the Bush campaign appealed to the U.S. Supreme Court.
The U.S. Supreme Court agreed to hear the case, and set up a very fast schedule for action.
Many observers were surprised that the Court took the case. After all, the conservative Court tended to defer to the states on matters of policy and politics. But the Bush campaign had argued that this was an urgent matter of national importance, and that argument prevailed.
At first, the Court issued a unanimous opinion saying that the Florida Supreme Court had to explain its reasons for extending the recount. That decision did not clearly favor either candidate.
But on Dec. 8, when the Florida Supreme Court ordered a full statewide manual recount, the Bush campaign again appealed to the U.S. Supreme Court. This time, the Court, by a narrow 5-4 majority, issued a stay stopping all recounts.
On Dec. 12, the U.S. Supreme Court made that order final, ending the recounts, and effectively making George W. Bush the victor. The Court’s five most conservative justices voted for the decision. The majority opinion said that “the absence of uniform rules” to determine the intent of the voters violated the clause in the U.S. Constitution guaranteeing equal protection of the laws. This was a new use of the equal protection clause, and the Court had previously tended to apply that clause narrowly.
The other justices dissented, and some observers declared that the Supreme Court had strayed from its normal conservative interpretation of the law to advantage a Republican candidate.
Despite the critiques, the options for the Gore campaign had run out. Al Gore conceded the election Dec. 13, bringing the ordeal to a close.
Who Should Have Won?
Because the recount process was so politicized and controversial, the debate about who should have won the 2000 election went on for months. As we’ve mentioned, eight respected media organizations hired the National Opinion Research Center to carefully examine the uncounted Florida ballots and to try to answer the question, “Who really won the election of 2000?”
The NORC staff examined 175,010 ballots—61,190 undervotes (no vote for president observed) and 113,820 overvotes (two or more votes for president, which results in a spoiled ballot).
The results of the NORC study were complicated, and did not give a simple answer to the question “who won?” In fact, readers can visit www.norc.org and click on the Florida Ballot Project, to see the different results produced if different counting assumptions are made.
Overall, though, the study reinforces the claim that George Bush won the state. For example, even if Gore had succeeded in his effort to force recounts in four counties, he still would have lost –though by 225 votes instead of 537.
However, the evidence is very strong that if all those who went to the Florida polls had had their intended votes accurately recorded, Gore would have won the state. That’s because thousands of voters in Palm Beach County and elsewhere intended to vote for Gore, but failed to do so successfully, because of butterfly ballots, hanging chads and other errors.
Fortunately for George Bush, voting devices cannot record intentions -- they record only actions. And that put Florida’s crucial electoral votes in the Bush camp.
The long, exasperating process of clarifying the Florida vote had at least one beneficial effect: it showed the nation that the “simple” process of counting votes was not at all simple or straightforward, and was, in fact, in need of repair.
It revealed, for example, that all existing systems of counting votes have significant error rates, though some are far worse than others. In Florida counties that used punch-card systems, about 4 percent of the presidential votes were uncountable. But in counties that used optical scan systems on paper, only one-half of one percent were not countable.
The Florida results also showed that many factors, including the design of the ballot and instructions given to voters, can lead to widespread voter error.
And those 36 days in Florida also showed that in a close, contested election, who is doing the counting and who makes the rules can determine the outcome almost as much as the voters themselves.
Beyond a doubt, the Florida fiasco gave a big push to the efforts to reform how U.S. elections are conducted.
In 2001, the Florida legislature passed a law revising voting procedures and getting rid of punch card ballots. And in 2002, the U.S. Congress passed the Help America Vote Act, which sets standards for the conduct of federal elections around the country, and offers states financial help in improving their voting systems.
As for the political effects of the difficult Florida election – they seemed to be limited. President George W. Bush did generally have fairly low ratings during his first months in office, and that might be attributable in part to discontent over the election.
Ten months later, however, the terrorist attacks of Sept. 11, 2001 changed the American agenda. President Bush was now widely seen as having risen to the challenge of dealing with a new, frightening threat to national security, and the strange election of 2000 faded into the background of national political consciousness.