In the 36-day chaos that took place in Florida following Election Day 2000, a lot of attention was paid to the issue of
"determining the will of the voter" in cases where the ballot was not marked clearly. We all had a good laugh at the expense
of that poor election official whose picture depicting him staring bugged-eyed through a magnifying glass at a "dimpled chad"
made him famous all over the world. Millions of words have been written about the "hanging," "dimpled," and other types of
chads. We won’t go through all of that again. But there is one type of voting "mistake" that occurred numerous times
in Florida that deserves review, because it wasn’t a mistake at all. Yet the way it was handled cost our preferred candidate
dearly.
In many counties, it was possible to mark the ballot for a particular candidate and also write in the candidate’s
name down below on the line set aside for voters’ adding in names of candidates not listed. You are, to put it simply,
not supposed to do that. Candidates already on the ballot are by definition not "qualified" to be write-in candidates.
Yet many people did in fact vote twice for the same candidate: once on the candidate’s line, and to be extra sure,
once on the write-in line. Despite the fact that this is a mistake, Florida law said that whenever that happened, the election
official was supposed to count the vote as a valid vote for the candidate. Those were not supposed to be treated as overvotes.
But in several counties, that’s just what happened. Those ballots were treated as overvotes and were rejected. And
wouldn’t you know it? It appears that most of those ballots were meant to be votes for our preferred candidate, Gore.
In just 5 (mostly Republican) counties, where about 80% of the rejected ballots came from, the net loss to Gore from this
type of "mistake" was 433 votes.
* * * * * * * * * * * *
The December 2000 decision from the Florida Supreme Court that had appeared to set us on the path toward justice called
for a statewide recount of all of the undervotes. On December 9th of that year, the counties all went about setting
up operations to count all the undervotes within their jurisdictions. But at least one county, Charlotte, wanted to know what
to do about the overvotes, of which there were even more. Judge Terry Lewis, who had been put in charge of the recount,
wrote a note to Judge W. Wayne Woodard, head of Charlotte’s canvassing board, asking him to separate the overvotes and
undervotes, but to go ahead and count both wherever the "intent of the voter" could be determined. Judge Lewis was
trying to decide which votes to allow in the final tally, when the U.S. Supreme Court halted the proceedings. In a later interview
with Newsweek magazine, Lewis indicated that he was ultimately planning to tell the counties to do the logical thing:
include both the overvotes and undervotes, and even the weird mistakes like the one we just looked at. Count everything where
you can easily tell what the voter was getting at, that was the idea.
In hindsight this makes too much sense to even be worth discussing. But at the time it would have been controversial, because
it went beyond what Gore had requested (he wanted only the undervotes counted, and only in a few specific counties) and even
beyond what the Florida Supreme Court had ordered (statewide, but still limited to undervotes). And as we’ll see in
chapter 8, it was overvotes, not undervotes, that really sank black voters in Florida in 2000.
Shame on both Gore, our preferred candidate, and the Florida Court for not recognizing what Judge Lewis had: the only way
to make a recount fair in a presidential election is to recount the whole state, and to review every rejected ballot by hand
to see which ones contain obvious votes for one candidate or another. And damn the U.S. Supreme Court for pulling the plug
on the whole thing just when Judge Lewis was about to bring some sanity to the whole mess. Because if there’s anything
worse than the incomplete recount Gore wanted, it’s the no-recount that Bush wanted and was given by the Court.
