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There's a Scandal in
Here Somewhere!

Series-SkipperTM digests the NYT

Florida overseas ballot story.


Posted Tuesday, July 17, 2001

        Series-SkipperTM is a service from kausfiles that lets readers avoid long, worthy newspaper series. (For more on the rationale for Series-SkipperTM, click here.) Last Sunday's New York Times investigative report on Florida overseas ballots wasn't a series, but at 397 inches in length (counting graphics), with three sidebars and input from 24 reporters, it could have been! In response to overwhelming demand from civic-minded consumers who do not want to actually read this important story, kausfiles has extended the reach of its proprietary Series-SkipperTM technology.

        Story: "How Bush Took Florida: Mining the Overseas Absentee Vote," David Barstow and Don Van Natta Jr., New York Times, July 15, 2001.

        What did the reporters do? Looked at all 3,704 overseas absentee ballot envelopes that came in after Election Day. About two-thirds of the votes they contained were eventually counted.

        What the reporters couldn't do: Figure out which candidate got the votes in which envelopes (because the ballots were separated from the envelopes they came in).

        Initial, startling pro-Gore fact: If those late-arriving overseas ballots hadn't been counted--and the election had been determined only by the votes received on Election Day--Gore would have won by 202 votes, according to Florida's official Katherine-Harris-approved returns. The late ballots (which under Florida law could be counted if they arrived by Nov. 17, as long as they were filled out on or before Election Day) changed the outcome when they went for Bush by a margin of 739 votes.

        "Billboard" summary of article: "Under intense pressure from the Republicans, Florida officials accepted hundreds of overseas absentee ballots that failed to comply with state election laws. ... The flawed votes included ballots without postmarks, ballots postmarked after the election, ballots without witness signatures, ballots mailed from towns and cities within the United States and even ballots from voters who voted twice."

        Background the Times doesn't give you: Salon writer Jake Tapper's Florida book, Down & Dirty, reported a conference call in which Bush "operatives" discussed committing voter fraud by getting soldiers to actually vote after Election Day. Tapper's anecdote was thinly documented--it came from an unidentified "knowledgeable Republican operative." Only one participant in the call was named, and the participant who uttered the key incriminating remark was not identified. Nor was it clear that the call actually resulted in any action being taken. But Tapper's account prompted a great deal of speculation regarding late overseas ballots: Had the Bush forces won Florida by illegally drumming up votes after the election was over?

        Given this background, what should arguably be the real "billboard" paragraph? "A six-month investigation by The New York Times ... found no evidence of vote fraud by either party. In particular, while some voters admitted ... that they had cast illegal ballots after Election Day, the investigation found no support for the suspicions of Democrats that the Bush campaign had organized an effort to solicit late votes."

        Even without organized voting fraud, did the "flawed" overseas ballots by themselves decide the election? Almost certainly not. Bush's official winning margin was 537 votes. There were only 680 "flawed" late ballots actually counted. Bush would have had to carry those ballots by a margin of 609 to 71--or almost 90 percent to 10 percent--for them to have changed the outcome. (Bush won the late overseas absentees, overall, by a 65 percent to 35 percent margin.) The Times cites a Harvard "expert on voting patterns and statistical models" who estimates that discarding the "flawed" ballots would have reduced Bush's margin to 245 votes. Still, this partial reduction in Bush's margin could have made the difference in combination with other potential troves of votes that arguably should have counted for Gore, such as the 176 votes from Palm Beach that were not included in the official tally, or the various batches of Gore "overvotes" found in media recounts.

        Problem with thinking that the flawed ballots made even that much difference: Many of the flaws in the 680 questionable ballots were technicalities--such as the failure of a voter to include an address along with his signature. Gore generally argued that Florida should "count every vote" regardless of technical defects--an argument in which he was backed up, as the Times notes, by the Florida Supreme Court. Many of the "flawed" overseas ballots represented legitimate, clear expressions of voter intent and probably should have been counted.

        Does the NYT attempt to distinguish the ballots that clearly shouldn't have been counted? No, but it does give totals for each type of flaw. Two types of ballots that clearly shouldn't have been counted are voters who voted twice (there were 19 of them) and voters who mailed in their ballots late (the Times identified 30 that were mailed in after the election, but only four of them were actually counted). Those are not big numbers.

        Fallback Anti-Bush Angle #1: The Times suggests the Bush forces were hypocrites for being strict and technical with regular votes but permissive when it came to overseas votes. Indeed, one easy reading of the Times saga is that Bush won because he was a more fearless hypocrite. When the Gore camp was confronted with the hypocrisy of its position--why block overseas ballots on technicalities if you want to "count every vote"?--Gore running mate Joseph Lieberman caved on national television, saying election officials should "go back" and "give the benefit of the doubt" to late military ballots. But this point has been obvious for months. (The importance of Lieberman's concession was a key conclusion of the Washington Post's big Florida series, published last February.)

        Fallback Anti-Bush Angle #2: It's not just that the Bushies were better hypocrites. Bush's sophisticated legal team had an "adaptable, tactical approach" that was inherently more hypocritical, the Times implies, in that even within the overseas vote category "the Bush lawyers were told how to challenge 'illegal' civilian votes that they assumed would be for Mr. Gore and also how to defend equally defective military ballots."

        Problem with Fallback Anti-Bush Angle #2: According to the Times, the Bushies were quite explicit in claiming "that civilian ballots were not entitled to the same leeway as military ballots," turning what would be hypocrisy into a principle. A weak principle, perhaps--the Times spends some time trying to knock it down, claiming that a military/civilian distinction is not "found in either Florida election law or in the federal law that governs overseas voting." Key NYT assertion: It wasn't true that military ballots from overseas received domestic postmarks, which would technically disqualify them. The domestic military postal centers "are not even equipped with postmarking machines," the Times reports. But even the Times admits that due to "inadequate training and supervision" in the Pentagon's voting program, military ballots often arrive with no postmarks, or without "witnesses, or even signatures." There's at least a colorable argument that similar glitches didn't affect civilians, who have more freedom than soldiers in choosing the time, place, and manner of voting.

        Fallback Anti-Bush Angle #3: The Times claims Bush's camp was hypocritical along yet another, geographic, dimension, "employing one set of arguments in counties where Mr. Gore was strong and another in counties carried by Mr. Bush." Perhaps because of the weakness in the other anti-Bush angles, the Washington Post's E.J. Dionne latches on to this one.

        Problem with Fallback Anti-Bush Angle #3: Despite many inches devoted to the subject, the NYT piece doesn't offer much evidence of Bush lawyers making contradictory arguments in different counties, as opposed to simply defending military ballots (but not civilian ballots) in all counties. In Broward County, for example, the Times reports that "Bush lawyers questioned scores of ballots, almost always from civilian Democrats but occasionally from members of the military." [Emphasis added.] Hmm. How often is occasionally? Bush lawyers used a technical protest form in "at least six cases," though it's not clear how many of these six were military ballots. They also used a technicality to challenge "119 federal write-in" ballots in Broward, though again it's not clear how many were military ballots. In three big pro-Gore counties they were silent while authorities threw out 362 overseas ballots, including "many" military ballots. How "many"?

        The Times puts a lot of emphasis on elaborate charts showing that pro-Bush counties consistently accepted a higher percentage of overseas ballots (50 percent were counted) than Gore counties (18 percent). But is this evidence of effective geographic hypocrisy on the part of Bush's lawyers? Or is it simply evidence that the election boards in pro-Gore counties were more likely to be Democratic, and receptive to Gore's arguments against counting technically flawed overseas ballots? The Times doesn't even address this obvious objection.

        Interestingly, Tapper's book contains evidence that Gore's forces engaged in double hypocrisy (geographic, and anti-military) as well. It recounts what happens in Broward when three Gore attorneys come in "under the impression that their orders are to be stringent when it comes to military overseas absentee ballots but not to overseas ballots in general." What happens is that a more experienced local Gore attorney takes them aside and convinces them that in this heavily Democratic county, it won't profit Gore to lodge too many technical objections against any ballots.

        Fallback Anti-Bush Angle #4: For whatever reason, overseas ballots "were judged by markedly different standards, depending on where they were counted," which (the Times says) contradicted the constitutional "equal protection" arguments that the Bush campaign successfully pressed in the U.S. Supreme Court. The NYT amply documents this charge, although it's no surprise that a system which gives county officials discretion will sacrifice strict equal treatment--which is why Bush's constitutional equal protection argument seemed so far-fetched. Surprisingly, the Times' follow-up editorial righteously denounces this unequal treatment--"Overseas ballots were judged by vastly different standards," etc., etc.--in effect embracing Bush's far-fetched argument. Hey, they had to righteously denounce something! (Jeffrey Rosen takes the more sensible tack of claiming that the varying treatment of overseas ballots shows that the unequal treatment of domestic ballots was a non-outrage as well.)

        Overhyped Anti-Bush Angle: The Times declares there was a "'war room' within the offices of [Katherine] Harris," where "veteran Republican political consultants helped shape" Harris' post-election rulings. A "war room" sounds like "an outpost for the Bush campaign," which is what Dionne calls it. But when you read the "jump" carefully it turns out there were no Bush campaign operatives in Harris' "war room"--just the director of the state Division of Elections, plus Harris' longtime adviser Adam Goodman, and J.M Stipanovich, a lawyer and veteran Florida GOP cadre. Stipanovich's shadowy role as a possible conduit of pro-Bush influence is not news; it has been extensively discussed elsewhere, including in the Washington Post and Tapper's book. The Times also makes a big deal of Harris' ambiguous pronouncement on overseas ballots, which was seemingly helpful to Bush (it fudged the issue of whether the ballots had to be signed and dated). But the same Harris statement, the NYT eventually notes, was also potentially harmful to Bush since "it said explicitly that postmarks were required."

        Good detail #1 indicating that Gore was outlawyered: "Not a single Gore official bothered to attend" the Pasco County canvassing board meeting at which the board reconsidered previously-rejected military overseas ballots, adding 19 votes. The Pasco County Democratic chair explains that it was an "hour's drive from his home to the county building on a Sunday." More than a dozen Bush representatives showed up.

        Good detail #2 indicating that Gore was outlawyered: The Bush lawyers shamelessly turned on a dime, from a position favoring strict enforcement of postmark requirements to the opposite position, when they realized that many overseas military ballots didn't have postmarks.

        Final Anti-Bush Angle: Rep. Steve Buyer, a Republican on the House Armed Services Committee, got the Pentagon to provide him with the e-mail addresses of 17 sailors whose ballots had been disqualified. The e-mail list was forwarded to a Republican campaign aide who was gathering the testimony of disenfranchised sailors for PR purposes. It's not clear if the Bush aide actually contacted any of the 17 sailors--the Times says that simply by getting names off some rejected ballot envelopes he had "already contacted enough sailors to provide anecdotes." The Times describes this incident as a violation of the "cornerstone of American military tradition that the armed services remain apolitical."

        Hello! Editor! Sidebar vs. Story: Among the "flawed" ballots the NYT suggests should not have been counted are 183 that were "Received After Nov. 7 With Domestic Postmark," rather than an overseas postmark. But a side article by Michael Cooper notes that some ballots with late domestic postmarks "actually were sent from overseas. Embassies sent ballots back in the diplomatic pouch that were not postmarked until they were mailed in the United States." Shouldn't they have been counted?

        Things the story leaves out: 1) Figures on the total number of military ballots rejected despite Bush's lawyering (788, according to Robert Zelnick in the Wall Street Journal). 2) Any mention of Tapper's original allegation.

        Things cunningly buried deep in the text: Mention of a U.S. District Court decision that, Zelnick claims, would have required even more overseas ballots to be counted. The Times' excuse? It "came too late to affect the final results." Sure. But was it right? This whole NYT investigation comes "too late to affect the final results"!

        Estimated time saved by reading Series-SkipperTM instead of the actual article: Not a hell of a lot, it turns out!

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Copyright 2001 Mickey Kaus.

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