November 12, 2001
Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote
By FORD FESSENDEN and JOHN M. BRODER
comprehensive review of the uncounted Florida ballots from last year's
presidential election reveals that George W. Bush would have won even if the
United States Supreme Court had allowed the statewide manual recount of the
votes that the Florida Supreme Court had ordered to go forward.
Contrary to what many partisans of former Vice President Al Gore have charged, the United States Supreme Court did not award an election to Mr. Bush that otherwise would have been won by Mr. Gore. A close examination of the ballots found that Mr. Bush would have retained a slender margin over Mr. Gore if the Florida court's order to recount more than 43,000 ballots had not been reversed by the United States Supreme Court.
Even under the strategy that Mr. Gore pursued at the beginning of the Florida standoff — filing suit to force hand recounts in four predominantly Democratic counties — Mr. Bush would have kept his lead, according to the ballot review conducted for a consortium of news organizations.
But the consortium, looking at a broader group of rejected ballots than those covered in the court decisions, 175,010 in all, found that Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots. This also assumes that county canvassing boards would have reached the same conclusions about the disputed ballots that the consortium's independent observers did. The findings indicate that Mr. Gore might have eked out a victory if he had pursued in court a course like the one he publicly advocated when he called on the state to "count all the votes."
In addition, the review found statistical support for the complaints of many voters, particularly elderly Democrats in Palm Beach County, who said in interviews after the election that confusing ballot designs may have led them to spoil their ballots by voting for more than one candidate.
More than 113,000 voters cast ballots for two or more presidential candidates. Of those, 75,000 chose Mr. Gore and a minor candidate; 29,000 chose Mr. Bush and a minor candidate. Because there was no clear indication of what the voters intended, those numbers were not included in the consortium's final tabulations.
Thus the most thorough examination of Florida's uncounted ballots provides ammunition for both sides in what remains the most disputed and mystifying presidential election in modern times. It illuminates in detail the weaknesses of Florida's system that prevented many from voting as they intended to. But it also provides support for the result that county election officials and the courts ultimately arrived at — a Bush victory by the tiniest of margins.
The study, conducted over the last 10 months by a consortium of eight news organizations assisted by professional statisticians, examined numerous hypothetical ways of recounting the Florida ballots. Under some methods, Mr. Gore would have emerged the winner; in others, Mr. Bush. But in each one, the margin of victory was smaller than the 537- vote lead that state election officials ultimately awarded Mr. Bush.
For example, if Florida's 67 counties had carried out the hand recount of disputed ballots ordered by the Florida court on Dec. 8, applying the standards that election officials said they would have used, Mr. Bush would have emerged the victor by 493 votes. Florida officials had begun such a recount the next day, but the effort was halted that afternoon when the United States Supreme Court ruled in a 5-to-4 vote that a statewide recount using varying standards threatened "irreparable harm" to Mr. Bush.
But the consortium's study shows that Mr. Bush would have won even if the justices had not stepped in (and had further legal challenges not again changed the trajectory of the battle), answering one of the abiding mysteries of the Florida vote.
Even so, the media ballot review, carried out under rigorous rules far removed from the chaos and partisan heat of the post-election dispute, is unlikely to end the argument over the outcome of the 2000 presidential election. The race was so close that it is possible to get different results simply by applying different hypothetical vote-counting methods to the thousands of uncounted ballots. And in every case, the ballot review produced a result that was even closer than the official count — a margin of perhaps four or five thousandths of one percent out of about six million ballots cast for president.
The consortium examined 175,010 ballots that vote-counting machines had rejected last November. Those included so-called undervotes, or ballots on which the machines could not discern a preference for president, and overvotes, those on which voters marked more than one candidate.
The examination then sought to judge what might have been considered a legal vote under various conditions — from the strictest interpretation (a clearly punched hole) to the most liberal (a small indentation, or dimple, that indicated the voter was trying to punch a hole in the card). But even under the most inclusive standards, the review found that at most, 24,619 ballots could have been interpreted as legal votes.
The numbers reveal the flaws in Mr. Gore's post-election tactics and, in retrospect, why the Bush strategy of resisting county-by-county recounts was ultimately successful.
In a finding rich with irony, the results show that even if Mr. Gore had succeeded in his effort to force recounts of undervotes in the four Democratic counties, Miami-Dade, Broward, Palm Beach and Volusia, he still would have lost, although by 225 votes rather than 537. An approach Mr. Gore and his lawyers rejected as impractical — a statewide recount — could have produced enough votes to tilt the election his way, no matter what standard was chosen to judge voter intent.
Another complicating factor in the effort to untangle the result is the overseas absentee ballots that arrived after Election Day. A New York Times investigation earlier this year showed that 680 of the late- arriving ballots did not meet Florida's standards yet were still counted. The vast majority of those flawed ballots were accepted in counties that favored Mr. Bush, after an aggressive effort by Bush strategists to pressure officials to accept them.
A statistical analysis conducted for The Times determined that if all counties had followed state law in reviewing the absentee ballots, Mr. Gore would have picked up as many as 290 additional votes, enough to tip the election in Mr. Gore's favor in some of the situations studied in the statewide ballot review.
But Mr. Gore chose not to challenge these ballots because many were from members of the military overseas, and Mr. Gore did not want to be accused of seeking to invalidate votes of men and women in uniform.
Democrats invested heavily in get- out-the-vote programs across Florida, particularly among minorities, recent immigrants and retirees from the Northeast. But their efforts were foiled by confusing ballot designs in crucial counties that resulted in tens of thousands of Democratic voters spoiling their ballots. More than 150,000 of those spoiled ballots did not show evidence of voter intent even after independent observers closely examined them and the most inclusive definition of what constituted a valid vote was applied.
The majority of those ballots were spoiled because multiple choices were made for president, often, apparently, because voters were confused by the ballots. All were invalidated by county election officials and were excluded from the consortium count because there was no clear proof of voter intent, unless there were other clear signs of the voter's choice, like a matching name on the line for a write-in candidate.
In Duval County, for example, 20 percent of the ballots from African- American areas that went heavily for Mr. Gore were thrown out because voters followed instructions to mark a vote on every page of the ballot. In 62 precincts with black majorities in Duval County alone, nearly 3,000 people voted for Mr. Gore and a candidate whose name appeared on the second page of the ballot, thus spoiling their votes.
In Palm Beach County, 5,310 people, most of them probably confused by the infamous butterfly ballot, voted for Mr. Gore and Patrick J. Buchanan. The confusion affected Bush voters as well, but only 2,600 voted for Mr. Bush and another candidate.
The media consortium included The Times, The Wall Street Journal, The Tribune
Company
The data produced by the ballot review allows scrutiny of the disputed Florida vote under a large number of situations and using a variety of different standards that might have applied in a hand recount, including the appearance of a dimple, a chad dangling by one or more corners and a cleanly punched card.
The difficulty of perceiving dimples or detached chads can be measured by the number of coders who saw them, but most of the ballot counts here are based on what a simple majority — two out of three coders — recorded.
The different standards mostly involved competing notions of what expresses voter intent on a punch card. The 29,974 ballots using optical scanning equipment were mostly interpreted using a single standard — any unambiguous mark, whether a circle or a scribble or an X, on or near the candidate name was considered evidence of voter intent.
If all the ballots had been reviewed under any of seven single standards, and combined with the results of an examination of overvotes, Mr. Gore would have won, by a very narrow margin. For example, using the most permissive "dimpled chad" standard, nearly 25,000 additional votes would have been reaped, yielding 644 net new votes for Mr. Gore and giving him a 107-vote victory margin.
But the dimple standard was also the subject of the most disagreement among coders, and Mr. Bush fought the use of this standard in recounts in Palm Beach, Broward and Miami- Dade Counties. Many dimples were so light that only one coder saw them, and hundreds that were seen by two were not seen by three. In fact, counting dimples that three people saw would have given Mr. Gore a net of just 318 additional votes and kept Mr. Bush in the lead by 219.
Using the most restrictive standard — the fully punched ballot card — 5,252 new votes would have been added to the Florida total, producing a net gain of 652 votes for Mr. Gore, and a 115-vote victory margin.
All the other combinations likewise produced additional votes for Mr. Gore, giving him a slight margin over Mr. Bush, when at least two of the three coders agreed.
While these are fascinating findings, they do not represent a real- world situation. There was no set of circumstances in the fevered days after the election that would have produced a hand recount of all 175,000 overvotes and undervotes.
The Florida Supreme Court urged a statewide recount and ordered the state's 67 counties to begin a manual re-examination of the undervotes in a ruling issued Dec. 8 that left Mr. Gore and his allies elated.
The Florida court's 4-to-3 ruling rejected Mr. Gore's plea for selective recounts in four Democratic counties, but also Mr. Bush's demand for no recounts at all. Justice Barbara Pariente, in her oral remarks, asked, "Why wouldn't it be proper for any court, if they were going to order any relief, to count the undervotes in all of the counties where, at the very least, punch-card systems were operating?"
The court ultimately adopted her view, although extending it to all counties, including those using ballots marked by pen and read by optical scanning. Many counties immediately began the effort, applying different standards and, in some cases, including overvotes.
The United States Supreme Court stepped in only hours after the counting began, issuing an injunction to halt. Three days later, the justices overturned the Florida court's ruling, sealing Mr. Bush's election.
But what if the recounts had gone forward, as Mr. Gore and his lawyers had demanded?
The consortium asked all 67 counties what standard they would have used and what ballots they would have manually recounted. Combining that information with the detailed ballot examination found that Mr. Bush would have won the election, by 493 votes if two of the three coders agreed on what was on the ballot; by 389 counting only those ballots on which all three agreed.
The Florida Legislature earlier this year banned punch-card ballots statewide, directing counties to find a more reliable method. Many counties will use paper ballots scanned by computers at voting places that can give voters a second chance if their choices fail to register. In counties that use that technology, just 1 in 200 ballots had uncountable presidential votes, compared with 1 in 25 in punch-card counties.
Others will invest in computerized touch-screen machines that work like automated teller machines.
Kirk Wolter, who supervised the ballot review for the National Opinion Research Center, said that the study not only provided a comprehensive review of uncounted ballots in Florida but would help point the way toward more accurate and reliable voting systems. All data from the consortium recount is available on the Web at www.norc.org.
The review produced databases to study this election from a historical perspective, said Mr. Wolter, the research center's senior vice president for statistics and methodology, adding, "I hope in turn this can lead to voting reform and better ways of doing this in future elections."
-- Anonymous, November 12, 2001