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The Road to Illegitimacy View other pieces in "The New York Review of Books"
By Mark Danner February 22, 2001
Tags: american politics Print

I guess you could say that the people have spoken,
and now we have to figure out what they said.

-President Bill Clinton

1.

In the Iron Triangle

After you have spent some days searching for the secret of political legitimacy in Miami and West Palm Beach, you want to go further. You have witnessed the ritual on the nineteenth floor of the gleaming granite Stephen P. Clark Building in downtown Miami, where, two months after the voters spoke and a month after the Supreme Court handed down its judgment, a journalist from The Miami Herald and a man from the BDO Seidman accounting firm sit hunched over a long table, squinting for five hours each day at the perforated punch-card ballots that were intended, on November 7, to express "the will of the people." You have plumbed the intricacies of the hushed ceremony in West Palm Beach's pale adobe Governmental Center, where three journalists, two accountants, three Republican Party volunteers, a lawyer, and assorted hangers-on lean forward in unison to behold and record the mysteries of these punctured cardboard artifacts that were meant to confer legitimacy on our country's leader.

After many days contemplating these strange ceremonies, you would do well to climb into your red convertible, put the radio on and the top down, and head north, and after many hours of working your way through the clotted mess of Interstate 95, past beach communities and retirement homes and golf courses and condominiums, you will turn west and enter Florida's "iron triangle," a land of farming and lumbering now become a land of teeming prisons and the people who guard them, and there you will find, in a red brick courthouse in Lake Butler, the formidable Babs Montpetit —or Miss Babs, as she is known, the elected supervisor of elections of Union County—and, in the flock of padlocked metal "precinct cans" gathered about her feet, Miss Babs's blessed paper ballots.

A man in white shirt and blue-and-white pants, a prison trustee from the nearby North Florida Reception Center, lugs the battered cans forward and Miss Babs, perfectly coiffed, resplendent in gold earings and a gold twenty-dollar medallion, extracts from them sheafs of folded sheets of paper. Having spent days contemplating the recording of dimpled chads, I greet these ballots as a blessed sight; for here there is no cardboard—no punch cards; no chads, hanging, dimpled, or otherwise—and indeed no machines of any kind. Here, alone among Florida's sixty-seven counties, there is only paper, with the printed name of each candidate and to the right of each name a printed box meant to receive, in the form of a penciled cross or check or diagonal line, the mark of the voter's clearly stated will. And in the next few moments, as Miss Babs spreads out before me and before the Miami Herald reporter and the accountant who accompanies her and the Republican observer looming over the table ballot after ballot from Union County's pile of 258 "no votes," I see quite clearly the obscurities attendant on that seemingly obvious notion of a "clearly stated will."

Miss Babs passes the ballots swiftly over the table, precinct by precinct, presenting you with an eccentric glimpse into a certain segment of Union County. Apart from the handful of "true undervotes," in which the voter made no mark for any presidential candidate —there are only twenty-five of these—one begins to see among the check marks and crosses certain identifiable types: those voters who insisted on choosing two different presidential candidates, often in rather plausible combinations—Gore and Nader, for example, or Bush and Buchanan; those who insisted on voting for three or four or five of the ten presidential candidates; and those sentimental souls who, confronted with the ten hopefuls, could not help offering their support to all of them. Some apparently decided each grouping of president and vice-president offered a separate choice, from which they selected Bush over Cheney, say, then Lieberman over Gore, LaDuke over Nader, and so on. A handful of voters, having checked one candidate from each party, wrote in, in the spot provided for a write-in vote, their true choice. (A number of Al Gores here.) One voter chose to add John McCain for president and Colin Powell for vice-president; another, having marked Bush and several others, wrote in one Dick Goldberg for president and filled out his ticket with Elmer Fudd.

Among these collections of signs, these bits of expression from the lost world of November 7, one could also make out a significant number in which the voter had made a choice, voting for Gore or for Bush in the first column of nine presidential candidates; and then, where the presidential candidates continued in a second column, cast a second vote for Monica Moorehead of the Workers World Party. It seemed possible, I said to Miss Babs and the room at large, that these voters had been misled by the cluttered ballot and thought the candidate in the Workers World and "write-in" categories, over in their separate column to the right, were competing in another race.

"You can't say that! You can't say that! That's intention. It's pure speculation!" This was the Republican observer, Mr. Remzey L. (Paul) Samarrai, the mayor of Micanopy—"The Heart of Old Florida," as his business card had it—who would not be placated by my ready admission that this was, indeed, pure speculation, and that, in any event, nothing could be done about it. These ballots had already been counted by hand—they were only counted by hand—and the sort of mistakes these double votes represented, unlike many of those on the punch cards in Palm Beach and Broward and Duval Counties, presented an ambiguity of intention that no human counter could penetrate; these were the final errors, those that had to be placed squarely on the side of the uncorrectable.

On the other hand, the source of these mistakes—their dependency at least in part on a somewhat confusing ballot—meant that assessing responsibility for them is a more complicated matter. And as to the charge of "intention"—or, more fully, "divining the intent of the voter," as James A. Baker III pronounced it with such deadly effect throughout the battle of Florida in November—this was in fact what Florida law had set as the standard in any recount: "the clear intent of the voter." The Republicans, observing the "media recount" in every place The Miami Herald, or The Palm Beach Post, or The Orlando Sentinel, or any of the other papers involved has reporters, were now insisting that only the "Supreme Court standard" be applied. This "standard," which Republicans assert in their daily press release on the count, Reality Check, is now "the law of the land," in fact originated in a remark by Justice Sandra Day O'Connor in oral arguments before the Court, when she inquired of David Boies in some irritation: "Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn't be clearer." To which Boies replied by citing, once more, the law: "Well, your Honor, because in Florida law since 1917, Darby v. State, the Florida Supreme Court has held that where a voter's intent can be discerned, even if they don't do what they're told, that's supposed to count."

One can't help feeling, in looking at the great variety of people and experience manifested by the marks on those paper ballots, that the more pointed response to Justice O'Connor's assertion that "it couldn't be clearer" would have been: clearer to whom? It certainly couldn't be clearer to Justice O'Connor, a well-educated white lady from Arizona. But how about, say, Old Enoch, one of Miss Babs's voters in Union County? "Now there was Old Enoch," she said in her sweet-as-caramel lilt, "and Old Enoch, he's a nice black man, you know, and he had a terrible time. He came in here the first time and he marked one ballot but he wasn't happy with that so he threw it away and he wandered off and then he came back again, and he marked another. But he was suffering; he had the pressure on him, you know. And I said, 'Enoch, you can only get one more, you know the law says you can only have but three ballots.' But he was suffering and he had the pressure on him and he wanted to do right but he didn't know what to do."

Had I seen Old Enoch's ballot in the pile of "no votes"? Had he resolved his suffering by voting for both Gore and Bush, or had he chosen one and then perhaps marked a second candidate in the second column, confused, as many seemed to have been, by the superfluity of names in the presidential columns (the same superfluity that led to the notorious "butterfly ballot" in Palm Beach County and the less notorious but perhaps more damaging "caterpillar ballot" in Duval County). If Old Enoch, armed with his pencil and confronted by a series of boxes to check, had done either of these things, his vote, like those of 180,110 other Floridians, would not have counted.

What could be simpler than a paper with a list of names on it and a pencil to mark it with? Justice O'Connor would have had no problem with it. And yet to a fair number of people in Union County, Florida, the stark instructions—"TO VOTE for a candidate, mark a cross (X) in the blank space at the RIGHT of the name of the candidate for whom you desire to vote" —appeared to have been, in their very simplicity, opaque. No one said not to mark each column. No one said not to mark each party. And so they marked and they marked again, sometimes with a sure and decisive check, sometimes with a faltering unsteady hand that seemed to betray very old age or an unfamiliarity with the pencil. In Florida's only paper-ballot county, where no punch cards or other machines posed a mechanical barrier between a voter's voice and the recording of it, the number of voters who cast ballots that would not be counted was 6.3 percent of all who went to the polls, more than double the rate statewide.

Though there is no way to say whether Old Enoch's vote, the product of so much worry and self-inflicted pain, was among those "no votes," one can say that for many people, even before they confront a punch card or an optical scanner, voting is a strange and exotic activity in which those with certain kinds of knowledge—including, most obviously, the ability to read but also a familiarity with the wider worlds of politics and contemporary events— are favored and those without them are at a disadvantage. This is a fact that Florida judges and the Florida legislature seem to have recognized in setting out "intent of the voter" as the standard for a hand count. And it is why, if Old Enoch had made certain kinds of mistakes—say, putting a check before "Gore" and then writing in "Al Gore" under "Write In Candidate"— in Union County his vote still would have counted. In Union County, uniquely in Florida, they count every vote by hand.

On the other hand, if Old Enoch had done the same in neighboring Lake County, where they use the optical scanning system, his vote would have been recorded as an "overvote" and would not have been revealed until December 18, when counters working by hand discovered 376 ballots on which people had filled in the oval next to Al Gore, then filled in the one next to "Write In" and written in his name. They found 246 ballots on which voters had done the same for George Bush. The state of Florida recorded all of these as overvotes and yet the voter's intent "couldn't be clearer." These 622 votes—in an election officially decided by 537—were discovered not by the state of Florida but by the journalists of The Orlando Sentinel.

How you feel about the 2000 election and the political power it eventually conferred on George W. Bush will to some degree depend on how you feel about people like Old Enoch, and where you think his responsibility to make his voice heard ends and that of the state begins. One view of that responsibility is embodied in the Florida law that David Boies cited; a quite different view is to be found in Justice O'Connor's impatient question and in the decision she and four of her colleagues later handed down.

2.

A Very Close Election

All through life you have to follow instructions.
And if you don't follow instructions...

—Theresa LePore,
Palm Beach Elections Supervisor

They lean forward, in West Palm, and they rock back. They look, squint, mark their tally sheets. They rock forward in sequence, a wave of faces moving around the table, following the movement of the punch-card ballot as the expressionless election worker holds it before their eyes: first the two Republican observers—front of the ballot, then back—then the Miami Herald reporter and the accountant to her right, then the Palm Beach Post reporter with his colleague behind him, then the earnest young man from Judicial Watch, the Washington advocacy group. One side, then the other; lean, squint; rock back, mark. No vote. Dimple. No vote. No vote. Dimple. No vote. The silence is total. They arrive at 10 AM, they leave at 3 PM. They "inspect" five or six hundred ballots a day, all of them "undervotes," ballots on which the machines detected no vote for president. At this rate they will be here for weeks. "I said they'd be here till Easter," Theresa LePore tells me. "Now I'm thinking Fourth of July."

It is an exacting effort, this "ballot review," and it is also very sad. When historians look back on 2000—and when they pronounce the word "2000" they will likely mean by it that year's presidential election, which they will class along with those of 1824, 1876, and 1888—they will have to explain how it was that in that particular year the American political system failed to produce a president broadly viewed as legitimate. One answer that will not do is simply that the election happened to be close—extremely, unprecedentedly close—because in fact it was not. The 2000 election was not even the closest in my lifetime:

2000  Gore"“Bush                  539,947
1968    Nixon"“Humphrey    510,314
1960    Kennedy"“Nixon         118,574

More than half a million more Americans voted for Gore than for Bush, a greater number than carried Nixon to victory over Humphrey in 1968, and more than four times the number that carried Kennedy over Nixon in 1960.

What distinguished the 2000 election was that it was extraordinarily, almost inconceivably, close in one state; that neither candidate could claim victory in the country without claiming victory in that single state; and that, finally, an uncommonly large percentage of the ballots in that state—almost 3 percent, as against 2 percent nationwide—were thrown out by the counting machines, either because they recorded no vote for president or because they recorded more than one. It was not simply that Bush's lead in Florida was extremely slight but that the problems with the vote itself made it unstable—an instability that was magnified on the day after the election when the mandatory mechanical recount cut Bush's lead from 1,784 votes to 327. This dramatic change, cutting the margin to less than a fifth of what it had been, suggested strongly that there were legitimate votes that had not been counted. For the two leading candidates in the 2000 election, the challenge of claiming both victory and legitimacy came down to the problem of how to confront those 180,110 discarded votes in a way that most supporters of both candidates could accept. Neither candidate achieved this. And thus the counters, sitting today in Palm Beach County and Miami-Dade County and Union County and all across the state, leaning, squinting, marking.


Gore's lead in the vote nationwide amounted to half of 1 percent (0.516 percent); Bush's official lead in Florida, which the Supreme Court's decision fixed at 537 votes, amounts to five thousandths of 1 percent (0.005 percent). (In the next closest state, New Mexico, Gore's margin was more than twelve times greater.) At the same time, the 180,110 ballots that were thrown out in Florida in 2000 not only represented a much higher percentage than those discarded nationwide; they represented a higher percentage than Florida itself had discarded in 1996 (2.93 percent against 2.52).

How was it that in a scant four years the voting skills of Floridians had so deteriorated? Setting aside for the moment the "Old Enoch Question"— whose responsibility is it?—one can point to some obvious answers. First, Floridians overwhelmingly passed, during the impeachment crisis in 1998, Amendment 11, which made it much easier for "third-party" candidates to secure a listing on the presidential ballot and which, two years later, presented election supervisors with the obvious problem of how to place, legibly, ten presidential candidates on one ballot. (In 1996, Florida had listed four.)

Second, thanks to the great importance accorded Florida by both Democrats and Republicans—and the vast amounts of money both parties poured into the state for advertisements, voter registration, and get-out-the-vote efforts—turnout in 2000 rose dramatically, from 5,437,964 to 6,145,220. Third, many of these voters were coming to the polls for the first time; African-American turnout, for example, is estimated to have risen by an astonishing 65 percent and four in ten of these voters were coming to the polls for the first time. Fourth, these first-time voters, and indeed many of the poorer and less educated ones, are far more likely to live in counties that use the old punch-card ballot systems, which consistently produce a much higher rate of under- and overvotes— in the 2000 election, nearly three times higher—than other voting methods; eight of every ten ballots that were thrown out in Florida in 2000 were thrown out in counties using punch cards. (Since these counties voted overwhelmingly for Gore over Bush— 51.8 percent to 46 percent—the error rates of the voting machines proved, this year, to be a critical Republican advantage.)

And so in the fall of 2000 Supervisor of Elections Theresa LePore found herself confronted with a problem: "A member of my staff drew up several versions of the ballot," she tells me in her soft voice. "The one-page version, the print was just too small to read. The facing-page version, we had used it in the late Eighties for amendments. It would let us make the print larger. I thought it would be easier to read; that was my 'ulterior motive.'" She pauses, laughs softly: "I assumed people would read the directions."

In 1996 Palm Beach County discarded 14,868 ballots, or 3.55 percent of the total; in 2000, Palm Beach County discarded 29,702 ballots, or 6.45 percent. In 1996, 0.75 percent of Palm Beach voters recorded more than one vote for president; in 2000, 4.16 percent did. In precincts 66 and 67 in Riviera Beach, a predominantly African-American part of the county, the rate of overvoting ran to more than 15 percent, meaning that one in six of those who came to the polls voted twice for president and thus nullified his or her ballot.

In Duval County, far to the north, Election Supervisor John Stafford— like LePore a soft-spoken, dedicated public servant—solved the ballot problem by placing the presidential candidates on two pages, five on the first, five on the second. In a normal year, Stafford told me, three to four thousand Duval residents punch more than one hole for president; this time, 21,942 did. On Election Day 26,909 voters had their ballots thrown out, more than three times the 1996 figure of 7,762. More than 40 percent of these were concentrated in four predominantly black council districts of Jacksonville's North Side, where Democrats had mounted an intensive effort to register new voters, telling them to "vote that second place." On page one, the "second place"—second punch-hole down—was Al Gore; on page two it was Patrick Buchanan.

Although the recount in Duval has not yet begun—thus far the county, citing impending lawsuits, has refused to separate out the undervotes from the rest of the ballots—I saw a tally sheet of the discarded ballots in one North Side precinct. As Stafford pointed out to me, about half of these voters had punched the card more than twice, or twice on one page; the other half, though, had followed the published instructions to vote on every page, and in most cases, as you would expect in this precinct, had "punched the second position" for Al Gore.

"There's no way we set out to 'disenfranchise' anybody," said Stafford, a quiet man who, like LePore, has spent much of his working life trying to get people to vote and suddenly found himself the target of a great deal of unaccustomed and painful criticism for throwing out their ballots. "Some people just want to play the race card. But the fact is, we had the same ballot all over town, the same ballot in every precinct." He did not, of course, have the same people all over town. According to a Washington Post computer analysis, in the most heavily white precincts of Jacksonville, one ballot in fourteen was thrown out; in largely black precincts more than one in five was; in some black precincts the rate was as high as one in three.

What are we to make of this startling disparity? Though Stafford freely acknowledges that part of the problem was "literacy, I mean you have to have certain skills," he argues, like LePore, that "the voter has to take on some responsibility. I mean, if you punch that stylus through that card, I don't think there's a more accurate system." Stafford is surely sincere, as is Theresa LePore when she says that people must "follow instructions." But where does the responsibility of the state lie when racial and class differences in "error rates" are so stark —and in a place where many people vividly remember literacy tests and other "informal" barriers to voting? "It couldn't be clearer," says Justice O'Connor. As a Democratic lawyer who tried to help angry voters on election day remarked to a colleague of mine, "You try arguing, to someone who says he's confused, 'You're not confused.'"

3.

The Media Ballot Review

We say people have the right to vote.
We don't say "educated people" or "literate people" or even "smart people."
Just people.

—Mark Seibel, The Miami Herald

Drive to downtown Miami, take the elevator to the nineteenth floor of the Stephen P. Clark Building—the same nineteenth floor where Republicans staged their "bourgeois riot" on November 22, after which the canvassing board decided not to go ahead with their hand recount—and you will find an intimate scene. Amy Driscoll of The Miami Herald sits beside John Cox of BDO Seidman and both face Jesus Arrechea, the election worker, who holds up ballot after ballot. Some are blank, some have a mark or two near the bottom; some are elaborately decorated, with a pattern of punctures that, held up to the Miami skyline, becomes a dancing pattern of light. Unlike the ritual silence of West Palm, here there is a litany:

"This is number two?"

"Number two."

"Can you turn that around?"

"Would you lean it back?"

"Okay, lean it that way, bring it back... Yeah, that's it."

"This three?"

"Yeah, three..."

They lean forward in unison, then back, reporter and accountant, then pause to inscribe their separate sheets, noting the type of mark, its "position" on the ballot. I watch as Driscoll's tally sheet fills up: No mark, no mark, no mark, dimple (position six), no mark, pinprick (position two), punched cleanly (position seven), no mark, no mark, punched cleanly (position seven), no mark, no mark, punched cleanly (position three), and on and on. Position two on the punch card belongs to Bush-Cheney, position six on the punch card belongs to Gore- Lieberman; position seven on the punch card belongs to no one—although it would have belonged to Gore if the card were badly aligned on the machine, just as position three, also an orphan, would belong to Bush.

The dimples, though they had become a matter of great controversy, might well have been counted as votes had the recount not been interrupted in Miami-Dade; the "clean punches" in position three or position seven, though the voter was doubtless attempting to vote for Bush or Gore, would not have been. In this distinction, clear as it is, lies some of the poignancy I feel as I watch these two people engaged in their strange occupation, leaning and squinting. For all their work, they are confronting only a small subset of the vast number of errors, misperceptions, and general foul-ups in the Florida election. These include the voters who were wrongly purged from the rolls; the people who thought they were registered but because of bureaucratic "miscommunication" between the Department of Motor Vehicles and the Department of Elections found they were not; the police roadblocks that in at least one instance near Tallahassee seem to have intimidated some voters trying to get to the polls; the decision of the television networks to project a victory for Al Gore in Florida twelve minutes before the polls closed in the state's western panhandle (in the Central time zone), which may have discouraged some voters from going to the polls; the networks' equally fateful decision, a few hours later, to christen George Bush the winner of Florida and the next president of the United States; the ballots that many people found confusing, leading a huge number of them to vote more than once for president, or to vote for a candidate (notably, Patrick Buchanan) they didn't want; the limited ability of some kinds of voting machines, particularly the punch-card machines found in the large urban counties of Miami-Dade, Palm Beach, Broward, and Duval, to detect votes and their tendency to record many attempted punches as "undervotes."


Take all the errors and difficulties and controversies that marred the Florida election, and gather them into a great pile. Now sort them freely into categories: those mistakes that could have been corrected and were; those that could have been corrected and weren't; those that couldn't have been corrected. You will be able to tell much about people's beliefs by where they choose to put what. Republican partisans would place both the dimples and the misaligned cards in that third, irredeemable category; some, like Justice O'Connor of the so-called "Supreme Court standard," would have placed every voting error, all 180,110 of them, there. Democratic partisans would have placed at least the dimples in the second, and if they could have found a way, much much more.

Of course, the Democrats had to make just this choice in the hours and days after the election: What could be remedied? What was legally, and politically, possible? Nothing could be done to record the votes of those who had been purged from the rolls, or those who had thought they were registered but weren't, or those who might have been troubled by roadblocks. The only problem that might have been mitigated lay in the great pile of votes that had been discarded, all 180,110 of them. Two out of every three of those were overvotes, recording more than one choice for president. It might have seemed obvious that a man from the North Side of Jacksonville who had been newly registered after Jesse Jackson's great "get-out-the-vote" visit to the city and who had punched a hole next to Al Gore on the first page of his ballot and then punched again on the second page—didn't it say "every page" in the newspaper? Didn't everyone say "vote position two"?—wanted to vote for Gore when he punched a hole next to the second candidate on page two, Patrick Buchanan. But how in the world do you prove it? How do you prove that all those in Palm Beach County who punched holes next to Gore and then next to Buchanan meant to vote for Gore? How do you prove that many of those 3,411 Palm Beach residents who voted for Patrick Buchanan—more than three times the number than in any other county, even much larger ones—in fact intended to cast their ballots for Al Gore?

The answer, of course, is that you can't prove it. But that doesn't mean that people don't know it, and don't remember it.


"After that sample count," Theresa LePore tells me, "we normally would not have had a recount. But for the public outcry." By which she means, as a legal matter, the machines had not broken, the election workers had done nothing wrong. She is saying, in effect: we conducted the manual recount partly because we had to prove to thousands of angry, disappointed people that the county, and the state, was doing all it could, given all the problems with the election, to ensure that the count that could be made was as accurate as it could possibly be.

Such an attitude, of course, is sensible and it would have been good for everyone had it prevailed statewide. As many have remarked, the obvious "solution" to the controversy in Florida, the obvious path to ensuring the greatest legitimacy for the winner, was to recount all the ballots by hand. Had the Democrats pushed for it from the first moment, and consistently, it may well have happened. But they feared the consequences of seeming to "prolong" the election—no one then dreamed the struggle would last five weeks—and they worried that even their request for recounts in four counties would be criticized as excessive and impractical. Of course, they could be much surer of what they would find in handcounting the undervotes in those four heavily Democratic counties.

So, of course, could Republicans, and they fought the recounts tooth and nail, seeking, with a good deal of success, to undermine the venerable practice of counting ballots by hand. They held a slim lead; they had seen, during the state-mandated recount, what could happen when punch-card ballots were recounted, and they knew as well as the Democrats did who lived where and what kind of voting methods they used. The Republicans must have been relieved that Al Gore waited for eight days after the election before suggesting a statewide manual recount. For the Republicans, the legitimacy that might have been gained by winning such a recount could never come close to balancing out the very real risk of losing it.

And so we had the heated arguments over chads and "divining the intent of the voter" and the "objectivity" of voting machines. And so we had two of Al Gore's requested recounts (those in Volusia and Broward Counties) finally completed and included in the official count, and two (in Palm Beach and Miami-Dade Counties) not. And so we had the Florida Supreme Court attempt to rescue the situation by imposing a statewide count, conducted by judges. And so finally we had the US Supreme Court, citing alleged violations of equal protection in the lack of a statewide standard, and claiming that time had run out, stop the counting and decide the 2000 election.

4.

The End That Did Not End

Legitimacy: A political order's worthiness to be recognized.

—Oxford Companion to Politics

"The question with which we start is," Mark Seibel of the Herald tells me, leaning back behind his mountainously cluttered desk, "Had the US Supreme Court not stayed the Florida Supreme Court in its recount, what would the result have been?"

We are in the command center, Assistant Managing Editor Seibel's Herald office. From rooms full of ballots in Miami and West Palm and Union and several score other counties all across the state, a wire leads directly here, to this desk heaped with state maps and schedules and manila envelopes filled with hundreds and hundreds of vote tally sheets. Telephones ring, voices crackle over the speakerphone; Seibel urges on reporters, sweet-talks election supervisors, bargains with lawyers. He's having the time of his life.

And who wouldn't be? Look at the mystery he's chasing: "Did the US Supreme Court halt a process that would have brought a different result in the presidential election?" How could any self-respecting journalist not attempt to solve it? "We would be abdicating our responsibility not to do it," Herald executive editor Martin Baron tells me. "We're going to be criticized either way but it's much more serious to be criticized for abdicating our responsibility. There was never any doubt here whether to do it or not."

Can the Herald really, in Seibel's phrase, "complete what the Florida Supreme Court said should be completed"? Given the different standards so troubling to the Justices in Washington, how can the count be reproduced? "We've seen no real evidence," he tells me, patting his manila envelopes, "that there were different standards in Broward and Palm Beach. I mean, there was so much smoke around that election the quality of justice was lacking."

He takes a call from the corporation counsel in Duval, John Stafford's county. They fear lawsuits in Duval; the NAACP, Jesse Jackson, Corrine Brown, the local congresswoman— they're all making noise. Those ballots will be "evidentiary material" and the lawyer must be concerned about their "integrity and retrievability given the specter of litigation." Seibel argues, negotiates, promises to call back.

"You know, we had 300 ballots in St. Lucie County where people, instead of filling in that little bubble, they went over and circled the party affiliation. Now those votes weren't counted yet it was clear those people were trying to vote. Why weren't they counted?"

I hear once more the sound of the Old Enoch Question: those people didn't follow instructions, the voter has to have some responsibility...

But Seibel, who for weeks has been looking at nothing but ballots and tally sheets, will have none of it. "What really got undone in Florida," he tells me, "was decades of a very liberal approach to voting rights. The Florida Supreme Court has always held it is illegal to have an arbitrary mechanical standard. I mean, we have a standard: intent of the voter. Instead of putting the onus on the voter, it puts the onus on the canvassing board. Why force people to address the question mechanically if you know what they were trying to say?"

Or, to put it another way, "There was something wrong with the machines, not something wrong with the people." This is Representative Corrine Brown's way of putting it. She, like many people in Duval County, is angry. "I mean, this man prints up a ballot. The one they ran in the paper, it said vote on every page. Now if you followed that instruction your vote would have been void."


When Congress moved to record Florida's electoral votes on January 6, Representative Brown stood up and, alongside other members of the Congressional Black Caucus, lodged a protest; then she and her colleagues walked out. To many watching on television, it was a shocking act; sitting in Duval County, one finds it much more reasonable. "I've had so many people tell me that they were so glad when we did that," she says, "because, you know, we acknowledged the pain we're feeling. I mean, people here were energized. The community was energized and they were voting. And there was a system that disenfranchised them."

Democrats in Duval had mounted an enormous registration and get-out-the-vote drive. Jesse Jackson had come three times to register people; President Clinton had come for a huge rally. And it worked. Turnout among African-Americans, who were angry about Governor Jeb Bush's "One Florida" program, which in effect ended affirmative action in Florida, rose dramatically. And a great many of their votes were thrown out.

Corrine Brown is not much interested in discussing the Old Enoch Question. To her, what happened on November 7 is familiar; it has a history. "The last time this happened, 1876—it was Florida then, too, you know—the last time it happened, they pulled the troops out of the South. People say, well, Rutherford B. Hayes, he wasn't so bad. But that was the end of it, you know, the end of Reconstruction. We didn't have a black in Congress from Florida for 129 years. Jim Crow, lynchings, poll taxes, literacy tests: all that happened because we were unprotected, because we had no vote, nobody speaking for us."

Today there are no poll taxes, of course, and no literacy tests, at least none written into the law, but what echoes here is the principle of exclusion, of being shut out—the specter of losing a voice gained only after great difficulty. "This has sent me for a loop; I'll take it to my grave. My grandmother always says, they're going to do what they're going to do. A lot of people are saying that now, shaking their heads: They're going to do what they're going to do.

"To me, this lets us know that we're not there yet, that all this, all we've won, can be taken from us. And, you know, maybe they've done it: they took the election, in a coup d'état without guns. But it's not over. He's going to be sworn in, but it's not over. The key is, he didn't win! He lost in his brother's state!"


Eventually, they will count in Duval. After the Herald counts the undervote, the great "media consortium," led by The New York Times and including The Wall Street Journal and The Washington Post and other papers and television networks, will count and tabulate all the discarded ballots, including the overvotes. Sometime in February or perhaps March we will have numbers from the Herald—numbers of dimples, numbers of pinpricks. And we will have numbers from the Republican Party counters as well, using their "Supreme Court standard," numbers that they issue daily in their Reality Check newsletter and by which, at last count, Bush had gained several hundred votes. They, too, are concerned about legitimacy. People will read in these numbers what they will. The fact is that because of the way education and class disparities are reflected in Florida's election machinery, Republicans have held a trump card that proved decisive in this election. People know this and they are angry about it.

In Washington, the new president will govern. Had the count in Florida been allowed to go forward—either the judges' count ordered by the Florida Supreme Court or another organized under a "uniform standard"—the presidential contest might well have been decided in the House of Representatives (the so-called "nightmare scenario," although the Founders considered such an outcome quite normal). Had this path been followed, depending on the standards used and the decisions taken by elected men and women, the same man might well be occupying the White House. But he would have arrived there through a political solution, and Corrine Brown and her constituents would be directing their anger at politicians and not the system that elects them. At the end of January, watching the counters and their ballots, what seems saddest about election 2000 is that the way it ended meant that it did not end.

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© 2017 Mark Danner