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New Jacksonville suit could block Bush win

Wednesday, Dec 6 2000
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If W. is indeed inaugurated on January 20, the first people he needs to thank -- even before brother Jeb or ever-helpful Florida Secretary of State Katherine Harris -- are the residents of Jacksonville, Florida, and surrounding Duval County. And not so much those who voted for him, though they gave him a 45,000 majority, his largest in the state. His heartiest thanks should go to the 22,000 people (many of them African-Americans) who spoiled their ballots by punching holes next to two presidential candidates -- and to the Republican county election supervisors whose sample ballot instructed them to do just that.

Duval County election officials might deserve an extra pat on the back for not drawing attention to the fact (or, as they say, not noticing) that an unprecedented number of votes were voided and that these came from mostly Democratic precincts. W. might also (perhaps as a gesture of bipartisanship and “healing”) want to thank the Gore campaign officials and Democratic lawyers whose inattention andor bad judgment left Duval County ballot issues -- with more votes at stake than in Palm Beach or Miami-Dade counties -- out of the court challenges until it was almost too late to contest them.

At the eleventh hour, U.S. Rep. Corrine Brown, a Florida Democrat, and other Jacksonville public officials, joined by Jesse Jackson‘s Rainbow Push Coalition, filed suit in Tallahassee against the canvassing board and the Bush-Cheney ticket. The complaint, filed late Tuesday, charges disenfranchisement, citing the ballot problems and other irregularities. In a possible end run around congested state courts, a federal Voting Rights Act lawsuit was being amended in district court in Miami by the Rev. Al Sharpton’s National Action Network to include Duval issues, said attorney Michael Hardee from New York City.

As in Palm Beach County, Duval residents were confronted November 7 with a ballot spreading Florida‘s 10 presidential choices over two pages, with W. and Gore heading Page 1. Unlike the now notorious “butterfly ballot,” Duval’s required turning the page to see all choices. But sample ballots, inserted in the November 5 edition of Jacksonville‘s Times-Union, gave no indication of this -- despite Florida statutes dictating, “Sample ballots shall be in the form of the official ballot as it will appear at that polling place on Election Day.” The sample ballots listed all presidential candidates on a single page. They also gave, as item four in a five-point list of voting tips, the instruction “Vote on every page.”

Voters taking this direction to heart would, after registering their choice for W. or Gore, proceed to pick among the five relatively obscure candidates on Page 2 and so void their presidential preference with an “overvote.” A line on the bottom of Page 1 noting that presidential candidates continued on the next page was not enough guidance for more than 20,000 voters. Nor was the last-minute instruction (“Vote on appropriate pages”) posted on the machines at the polls.

The highest proportions of these overvotes were found in the four primarily black council districts, where almost one in five votes (more than 30 percent in some precincts) were thrown out. By contrast, in mostly white districts, the number of invalid ballots was no higher than 9 percent. In the county as a whole, the rate of invalid ballots was three times as high as in previous elections.

Were these overvotes a simple matter of “voter error” for which there was no legal remedy, or were they subject to recount or court review to determine “voter intention”? Some legal experts say the Democrats should have promptly pressed the matter in court.

USC law professor Erwin Chemerinsky, a witness in the Palm Beach “butterfly” case, says this too was “an illegal ballot,” especially with the “misdirection” in the sample ballot, and that a Florida judge would have broad latitude to find a remedy -- like a new election. However, Chemerinsky adds, time has now about run out for an effective correction. Santa Monica attorney Fred Woocher, who specializes in California election law, says it would be a “damn good case” because of the difference between sample and actual ballots. One reasonable remedy, he suggests, might be to split the overvotes between the two candidates indicated on a ballot. But Woocher “wouldn’t want to predict how a Florida court would rule.”

No court, to this point, has addressed the issue, since Democrats were not made aware of the problem in a timely manner. Election staffers did not notice the huge disparity between ballots cast and valid votes until two days after Election Day. And, they said, when they did notice, Democratic officials were not the first they told about it.

Assistant Supervisor of Elections Dick Carlberg says “concerned citizens” who added up the numbers had been calling in and “we called Tallahassee right away” but got no advice from the office of Secretary of State Harris. Later that day, says Carlberg, he ran an “over and under” program (“the first time I‘ve ever fired it up”) to see why so many ballots were voided. Carlberg tried to get the division director and computer people in Tallahassee, but “they were just hosed,” he says, in the wake of the statewide automatic recount.

In a report sent November 9 to the state’s Division of Elections, Duval County Supervisor of Elections John Stafford and the Duval canvassing board explained the unusual voting pattern to Tallahassee officials. “While not a problem with the accuracy of the final vote count, it is noted that 21,942 voters cast votes for more than one candidate for President” and that those votes were not counted, the report said.

While Harris‘ office was notified, Democrats were out of the informational loop. Mike Langton, the Gore-campaign regional chair, says he was told by Stafford around lunchtime on November 9 that there were only “a few hundred” voided ballots. “He claims it was a misunderstanding, but he misled me -- I don’t say I know his motives.” Stafford declined to speak with the Weekly but told another paper he thought Langton was asking about absentee ballots; Carlberg, not present at the encounter, says he‘s sure Stafford wouldn’t have misinformed Langton. A Democratic Party lawyer confirms the core of the Langton version.

By the time Langton learned, through a Times-Union reporter, that there were over 25,000 invalidated ballots and conferred with state Democratic strategists the next day, they had little time to act, and too little information to act on. The legal deadline for a recount request was coming up at midnight that Friday. They weren‘t sure whether the voided ballots helped or hurt Gore in a county W. carried by a better than 4-3 margin.

Strangely, a detailed picture of the disallowed ballots had to come to Florida Democrats through Los Angeles. The data that could have shaped their decision was already posted on the Web, where West L.A. election buff and computer programmer Bruce Adler noticed the anomalies in Duval. Once he discerned that the voided ballots came disproportionately from strongly pro-Gore precincts, Adler tried to notify Democrats on the scene, but all lines were busy at Gore headquarters, he says. He then spread the word to national and Florida media, but it was not until Sunday morning that Adler reached Langton and explained that it was Gore who was hurt the most by the ballot invalidation.

Democratic Party shot-callers plotting strategy for the “recount team” -- as focused on the friendly terrain of Miami, Palm Beach and Fort Lauderdale as any gang of frat boys on spring break -- continued to dismiss the importance of Duval even after finding out that the disenfranchised were Dems. “We explained to Langton that a hand count doesn’t fix overvotes,” says attorney Marc Herron, the Democratic National Committee‘s specialist on Florida election law. Herron agrees that there are grounds for a contest to the Duval results, but sees it as an uphill battle. “We’re not discouraging private citizens from taking up this matter, like in Palm Beach,” explained Nick Baldick, senior consultant on the recount team, “but for us, any additional issues would be too much to handle.”

Stafford told the Times-Union at the end of election week that his office‘s computer could not determine the impact of voided votes on the presidential race, but that a hand count might be done in a few precincts the week of November 13 to judge their effects. However, Stafford’s deputy, Dick Carlberg, told the Weekly last Friday that no hand count had been done nor was one contemplated.

And, just in case you thought all of this might be of interest to Florida Director of Elections Clay Roberts, think again. Roberts, a Republican, told the Miami Herald last week that he had not seen the Duval ballot. He said no one in his office “is going to opine on this right now.”

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