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Potomac Crossings --By George Mason Strike Four, You’re Out      It was noted during the OJ fiasco that lawyers first argue the facts. If the facts are against them, lawyers then argue the law. When the facts and the law are both against them, then they rouse up public opinion. This Monday morning, the Gore PR blitz will be intense. (Monday news is summarized at the end of the column.)Why? Just look. The Facts      On November 7th, Republican presidential candidate Governor George W. Bush won the Florida election for President by a margin so small as to trigger an automatic recount. Shortly thereafter, Bush won the machine recount. As mandated by state law, the elected constitutional officer, Republican Secretary of State, Katherine Harris, prepared to certify the election. Challenged in court by the Gore campaign, she won her case at the Circuit Court level but was reversed on appeal. The Florida Supreme Court ordered her not to certify the election, imposed a new tabulation deadline of their own and ordered the Secretary to include further recounted ballots from three large and heavily Democratic counties that accounted for approximately 40 percent of the state’s voters. On November 26th, the Court-mandated deadline was reached. One county – Broward – submitted a revised report based on completed hand-counts. Another county – Miami-Dade- just re-submitted its machine recount on the grounds that it could not complete a hand recount by the Court’s deadline. One county – West Palm Beach – submitted a partial hand recount on time and an addendum two or three hours later. Under the instruction of Florida law, the Secretary refused to accept partial recounts because state law mandates that all ballots be recounted. (Even if she had accepted the partial returns, Bush would still have won.) George W. Bush officially received 2,912,790 votes and Albert Gore 2,912,253 votes. Governor Bush was certified as the winner of Florida’s 25 electoral votes by a margin of 537 votes on the evening of November 26th at about 8:00 PM. That addition gave him 271 votes, the majority he needed for victory. The Law      In Florida, each voter is given a notice printed on the ballot. It informs the voters that it is their job to caste a proper ballot, making sure that it is machine readable by clearly puncturing the card in the appropriate places. It warns that their vote may not count if they fail to follow the instructions. It assures the voter than they can turn in a ballot on which they make a mistake and get another. In the course of nearly six million votes in the state, approximately 180,000 were not properly caste.      The Florida election law establishes no standards or guidelines on how to handle ballots that are rejected by the voting machines. That decision is left up to each individual county which elects three people to their canvassing commission. The law states that all disputed ballots will be resolved and a final tally given no later than seven days after the election. The legislature assigns the Office of Secretary of State the administration of the election law. Under current policy, that constitutional officer may or may not extend the deadline in cases of fraud, mechanical malfunction or catastrophic weather. It is expressly forbidden in the law to use a recount to gain partisan advantage.      Federal law, state law, state regulations and a Florida consent decree on military absentee ballots all come into play. The relevant considerations include a 1980 consent between the federal government and the state of Florida to accommodate the special circumstances of overseas military mail by recognizing either a postmark or a signed and dated envelope.      The Federal interest is (1) whether or not the election rules were changed after the election, that action is prohibited in federal law; (2) whether or not the judicial branch usurped the equal powers of the legislative and ministerial branches, and (3) what would be the practical effect of their rulings one way or the other. The Federal 11th Circuit Court also is still considering the effect on due process if a highly partisan commission in three heavily one-sided counties are permitted to scrutinize ballots under no guidelines while the other 64 counties are ignored. Public Relations      From the Gore perspective, the immediate and critical issue is to stall or halt the Bush momentum created by certification. The Clinton tactic is always to articulate some statement of moral high ground to inoculate their partisans from the low road on which they intend to embark. (It’s okay to personally trash Secretary Harris because your cause is just.) The Gore high ground statement is essentially that he won the popular vote, he believes in his heart that more ballots were cast for him in Florida than were counted and that, if you exclude Florida, he is the front runner in the electoral college.      That statement is an assertion desperately devoid of facts. Since over one million absentee and overseas ballots nation-wide have not been counted, the fact is that Gore is ahead in the popular vote at the moment but it is unknown who won. Gore is ahead by less that three-tenths of one percent. Over 100 million votes, that is the equivalent of flipping a coin and having it land on its edge. The total difference is within the margin of error for vote processing equipment. Gore won the state of New York by 1,524,556 votes. His national current lead of 300,000 is less than his margin of victory in New York City. Disregarding the fact that the election is not governed by the popular vote but by the rules of the Electoral College, a claim to a national victory essentially says that New York City trumps the nation.      Citizens don’t "vote" in a vacuum. They caste ballots. The ballot must conform to the rules of the state and county in which they reside. An improperly caste ballot infers no right to be counted. In the 38-year history of punch card voting, The Washington Post discovered, elected officials almost never count dimpled ballots. "Historically," the Post says, "judges and other election officials have held that a dimpled chad is not clear to them and it is absurd to guess." The addition of "dimpled chad" data from three selected heavily favorable counties and the exclusion of the other 64 counties is a guaranteed distortion of the true picture across the state. Even with that distortion, Gore lost the count. Being the front runner before the score is tabulated is, of course, a nothing burger with cheese. As the noted columnist David Broder observed, " There is no politician in the world who doesn’t believe he won if he could just find the rest of the votes. Their feelings are irrelevant."      The second goal of the Gore campaign is to get a recount in Miami-Dade county. Their three commissioners are two Independents and one Democrat. They have already refused to hold a manual recount twice and been upheld in court, including the state Supreme Court. Under Florida law, a manual recount must include all ballots. The reason was amply illustrated last weekend when the Miami-Dade commission proposed to count the ballots from Democratic ethnic precincts but not count the ballots from Republican Cuban precincts. That decision to ignore the Cuban precincts is what sparked the intense protests over using the 10,700 non-presidential ballots culled from the 700,000 total as a proxy for a full recount.      The Bush strategy, given in Sunday night comments, of moving on with a program of popular issues may trump the Gore tactics. The idea that favorable and popular programs can be passed if there is a bi-partisan effort beginning right now may prevail in attracting public opinion. The Bush PR may work because the pundits are wrong to say that half the nation is opposed to either candidate. One half of the nation didn’t vote. That half is mighty interested in the horse race but not so much in either the man or the policies. By moving towards popular programs, Bush can gain the vote challenge high ground with a combination of his 25% and the 50% who didn’t vote and think both candidates are interchangeable. If that proves to be the case, it won’t take much more than 48 hours to reveal the weak legal position of the Gore campaign. If the Gore team fails to generate much public opinion on Monday, it might be wiser for them to fold before they get to the Supreme Court. It has the authority to say for history that changing the rules during the game is not fair and the Florida court should have known better. Monday Update      Gore: Word and Deed. On Monday, the Gore campaign sent the Minority Leader of the House Richard Gephardt and the Senate, Tom Daschle to Florida to stage a media event. Both men threatened the Bush campaign, saying that academics would search the Florida ballots and "prove" that Gore won. They would then use the research to discredit every Bush proposal as coming from an "illegitimate" President. On Monday evening, candidate Gore made a network speech. Here is what he said and what he is doing: Elections are held once every four years. Filed suit to have Palm Beach County revote the election because of the "butterfly" ballot dilemma. All votes should be counted and none silenced. Issued a position paper "proving he won by nine votes. To get to that total he discounted all recent absentee military ballots which were submitted by Sunday. Called for a fair outcome. Filed suit in three Democratic counties and ignored the other 64 counties, holding that further recounts were needed in Democratic precincts but not elsewhere. Called for not ignoring votes. See three above. All absentee ballots and all other counties were ignored in his filings before the Leon County District Court. Complete tally of existing votes. Partial recounts are illegal under Florida law. The perfect example of why this is the law is Miami-Dade county where the ethnic precincts that favor Gore at a rate of 74% are already counted but the Cuban precincts which favor Bush by 54% have not been counted. Charged Republicans with organized intimidation. Neglected to mention either the Jesse Jackson effort or the national importation of union organizers who acted as both observers and counters in many precincts. Charged that some ballots had not been counted ‘even once." All ballots have been machine counted once and recounted once. Ballots with no machine-readable marks in the presidential column have not been hand-counted in some precincts. Demanded that partial accounting reports be honored. See # 5 above. Charged that the final certification was "inaccurate and incomplete." The entire state was machine counted once and recounted once. Operating under the orders of the state Supreme Court, the legal ballots were counted by hand a third time under the guidelines of the court. At the Court-mandated deadline, Bush was still ahead. Called for a fair process. In court filings asserted that the only "fair process" was the most liberal interpretation of dimple chads and that all other methods were in violation of the law. Florida law has no specifications or guidelines but leaves the decision up to each county. There is no requirement of uniformity between counties. The court order from Palm Beach County does not specify a method but the method they use was described for the court without objection. Declared the current count arbitrary. Asked the court to cure the situation by only adding known Democratic precincts for further recounts. Polls indicate that the public believes Bush has won over Gore 60-35% and that 50% of the people believe that Gore is trying to "steal" the election.  Wisdom, however, is not the Clinton-Gore strong suit. They may well illustrate the judgement of history that for some part of the baby boomer generation, their fate is to age but never mature. ###

George Mason, 1725-92, was known as the Sage of Gunston Hall. His Virginia declaration of rights, written in 1776, was the model for the first section of the Declaration of Independence. A friend of Patrick Henry and Thomas Jefferson, Mason was an original drafter of the Constitution and the first ten amendments to the Bill of Rights. He refused, however, to sign the final version of the Constitution because he thought it did too little for individuals and, without the Bill of Rights, gave too much power to the government.This column honors his memory. CURRENT NEWS: ALL HEADLINES Timeshare || Financial || Resorts/Casinos || Misc. Travel || NEWS ARCHIVES EMAIL SEARCH HOME To report broken links or other problems with this site please contact: webmaster@thetimesharebeat.com ©1999-2000 The Timeshare Beat all rights reserved