The American Legion Magazine | April 2001
By Alan W. Dowd

“We deal here not with an ordinary election, but with an election for the President of the United States.”[1] So wrote Chief Justice William Rehnquist as he outlined his pivotal opinion in the case of George W. Bush v. Albert Gore Jr. By a single vote, Rehnquist’s decision would shut down Florida’s problematic recount and mercifully end the Election of 2000.

The Court’s 5-4 decision was a fitting conclusion to the 36-day election ordeal. In the five weeks between that moment—Judgment Day—and Election Day, Americans were repeatedly reminded of how precious and powerful a single vote can be. As the Florida Supreme Court declared during the post-election chaos, “The right to suffrage is the preeminent right…for without this basic freedom all others would be diminished.”[2]

In other words, to paraphrase Chief Justice Rehnquist, the right to vote is not just any ordinary right—it is the essential, defining ingredient of a democracy. Tragically, a handful of people lost sight of this during the bare-knuckle political brawl that marked Florida’s vote-counting spectacle. Their drive to win at all costs would disenfranchise the very people who protect and preserve our own right to vote.

Blame Game. No one is blameless in the Florida election fiasco. Local election officials designed confusing ballots. Tens of thousands of Floridians ignored the rules when casting their ballots. Driven to be first, the television media out-scooped themselves and called the state too early for Gore, only to declare Bush the winner without bothering to check Florida’s automatic-recount rules.

The state’s rickety election system nearly collapsed under the strain of the presidential photo-finish, although Florida wasn’t alone: Days and in some cases weeks would pass before winners were declared in New Mexico, where the margin was just 546 votes, or .09 percent; Wisconsin, where .2 percent separated the candidates; Iowa, where .3 percent separated them; and Oregon, where a ballot-thin .4 percent separated victor and vanquished.

Both campaigns played the legal card early and often. The disputed Florida election spawned 52 lawsuits, tying up courthouses from Miami to Tallahassee to Atlanta to Washington, D.C. Gore surrogates are quick to point out that it was Bush who filed suit first, when on November 11, his lawyers tried to block Gore’s request for hand recounts of 1.8 million votes in southern Florida. But that’s only part of the picture. It was Gore who dispatched Warren Christopher and a fleet of 75 lawyers to Florida’s 67 counties the morning after the election, as if it were some banana republic. Bush sent James Baker and his own team of lawyers only after Gore dispatched his. 

Of course, those legal cards couldn’t have been dealt were it not for the Florida Supreme Court, which overstepped its constitutional bounds by extending the state’s certification deadline and in effect changing Florida’s election law midstream. In its own words, Florida’s chastened high court conceded that “the development of a specific, uniform standard…to secure the fundamental right to vote throughout the state of Florida should be left to the body we believe best equipped to study and address it, the Legislature.”[3] If only the court had grasped that a month earlier.

And the list of those who played a part in Florida’s tragicomedy goes on. However, when it comes to the state’s military-absentee ballots, it’s impossible to overlook the fact that Al Gore’s lieutenants alone targeted and ultimately prevented hundreds of servicemen and women from being heard in the election of their commander-in-chief.

Taking Aim. In the first days of the Florida photo-finish, the Gore team seemed committed to counting all the votes. Indeed, during the unpredictable overtime session of the 2000 election, it became the vice president’s slogan. “It’s important for the integrity of our democracy to make sure that every vote is counted,” he observed, staking out the moral and political high ground in the process.[4] Scolding Bush’s lawyers for trying to short-circuit the hand recount process, Gore campaign chairman Bill Daley added, “The Presidency of the United States should not be determined by technicalities. It needs to be determined by the will of the people.”[5]

The Florida Supreme Court agreed, adding momentum and legitimacy to Gore’s Orwellian post-election campaign. “The will of the people,” the high court unanimously concluded, “not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases.” All those involved, the seven justices intoned, should work “to reach the result that reflects the will of the people.”[6] 

With the Florida Supreme Court’s stirring words in mind, thousands of election officials went to work, imitating Johnny Carson’s Amazing Karnak as they divined what each smudge, dimple and crease meant.

However, the same care and attention given to the ballots of Florida’s retirees, snowbirds and new citizens would not be given to the ballots of the teenagers and twenty-somethings who were defending them. Even as the definition of a vote was being stretched beyond recognition in south Florida, Gore’s foot soldiers were taking aim at the overseas-absentee ballots that would be decisive in the state’s final tally.

The Gore team had good reason to be concerned about the overseas-absentee ballots in general and the military ballots in specific. As Wall Street Journal columnist John Fund reported months before the election, a sizable majority of overseas voters are Republican, perhaps as many as 80 percent.[7] The military-absentee vote traditionally trends toward the Republican candidate as well. And these late-arriving ballots can make or break a campaign. “In 1996 and 1998,” according to Fund, “as many as 15 House races were close enough to be determined by absentee ballots.”[8] (Hence, the GOP’s frustration over reports that California intended to leave its 2.7 million absentee ballots uncounted. The reports turned out to be a hoax.)

Unpredictable as it was in other aspects, the 2000 election held true to form when it came to overseas ballots. According to the Florida Department of State, Bush netted 1,575 overseas ballots, while Gore won just 836.[9]

Taking Out the Trash. However, long before those numbers were finalized, Gore strategists were exploring how to blunt Bush’s inevitable edge in overseas ballots.

On November 15, barely a week into the Florida recount, Tallahassee lawyer Mark Herron circulated his now-infamous memo to Gore’s election monitors, who were stationed at canvassing sites across the state. Herron’s memo amounted to a step-by-step guide on how to challenge and disqualify the overseas ballots that promised to play a pivotal role in determining the 43rd president.

Directing his colleagues to comb the ballots for technical mistakes, Herron explained how an overseas ballot could be disqualified. Reasons ranged from the voter not officially requesting the ballot, to the voter failing to sign the outer envelope, to the voter failing to have a witness notarize the ballot, to a missing postmark.

The memo included a sample protest form, complete with a ready-made checklist of reasons for rejecting the ballot. Apparently, some technicalities were important enough to disqualify a vote, but only Herron and Daley knew which ones.  

Gore supporters who tried to defend the memo as an effort to preserve the integrity of the election were silenced by the missive’s first paragraph and last page, which mentioned the armed forces by name and described the military’s special postal designations. The memo’s unmistakable intent was to weed out as many military ballots as possible.

For Gore and Daley, the memo was brutally effective. For Florida’s overseas voters—most of them men and women in uniform—it was devastating. Of the 4,017 military and overseas ballots mailed back to Florida, 1,527 would be rejected under Herron’s guidelines—a staggering 38 percent.[10]

But true to the Constitution they defend, America’s servicemen and women uttered barely a whisper in protest, standing watch on the lonely outposts of freedom, even as the symbol of their freedom was tossed aside like trash. In EscambiaCounty, home of Pensacola Naval Air Station, 112 of 272 votes were rejected. According to a Miami Herald investigation, “almost all [were] from military addresses.” DuvalCounty, which includes two Navy facilities, threw out 106 ballots. OrangeCounty disqualified 117 and accepted only 30. BrowardCounty tossed out 304 of its 396 overseas ballots. The Miami Herald found that 246 of Broward’s disqualified overseas ballots were military.[11]

These weren’t normal rejection percentages. In fact, thanks in large part to Herron’s memo, the 2000 rejection rate was double the 1996 rate. Indeed, Herron’s fingerprints were all over the rejected overseas ballots. Predictably, the most common reason election officials cited for rejecting a ballot was an absent postmark, arguably the pettiest of technicalities.

It’s petty because military mail is often shipped or airlifted without a postmark. Rushed by deadlines, stretched by special circumstances or limited by a lack of resources, APOs, FPOs and MPOs do their best just to get the mail back to the States. Postmarks are often the least of their concern.

While Florida and a dozen other states require a postmark on overseas-absentee ballots, Herron’s memo didn’t bother to mention that the Uniformed and Overseas Citizens Absentee Voting Act, which governs expatriate participation in federal elections, does not require ballots to be postmarked.

Herron and his colleagues saw this disconnect between federal and state law as a loophole to silence military voters. But according to Rep. Steve Buyer, R-Ind., who chairs a House subcommittee on military personnel, state law was irrelevant in the Florida absentee-ballot controversy. “This is a federal election,” Buyer explained during the recount dispute, “and the federal statute is what rules here.”[12] Sadly, Florida election officials couldn’t be persuaded. The damage had already been done.

Ballot Backlash. However, like the man who sows the wind and reaps a whirlwind, the damage would come spinning back at Herron and Daley.

Not only was the decision to go after the military ballots nakedly hypocritical given the Gore team’s “every vote must count” mantra, it was disrespectful to the men and women in uniform. Targeting and trashing hundreds of military ballots did not sit well with the American people. In fact, just six days after Herron drafted his search-and-destroy memo, Gore’s disapproval ratings soared nine points in a CBS poll. He would never regain the trust or support of the slender majority he enjoyed before the memo went public.

Amid the public-relations storm, some of the loudest and fiercest criticism would come from Gore’s fellow Democrats. Leading the charge was none other than Joe Lieberman, Gore’s running mate. “I would give the benefit of the doubt to ballots coming in from military personnel,” Lieberman explained on NBC’s Meet the Press, reportedly blindsiding Herron and other Gore operatives in the process.[13]

Lieberman’s comments would open the floodgates. Bob Butterworth, Florida’s Democratic attorney general, promptly issued his own memo to local election officials, arguing that “no man or woman in military service to this nation should have his or her vote rejected solely due to the absence of a postmark.”[14]

Sen. Bob Graham, D-Fla., would lead a host of others in condemning the Gore campaign’s ill-thought attack on military ballots. But the bluntest comments came from Sen. Zell Miller, D-Ga. “Any ballot from a man or woman in the military who is serving this country should be counted—period,” Miller argued. “I don’t care when it’s dated, whether it’s witnessed or anything else. If it’s from someone serving this country,” Miller jabbed, “count it and salute them when you do it.”[15]

Despite Miller’s verbal roundhouse and the media backlash, only twelve of Florida’s 67 counties ultimately took a second look at their rejected military ballots.

Lessons Learned. Even so, all is not lost in the wake of Florida’s military-absentee ballot controversy. As the nation picks up the pieces, we’re learning new lessons and re-learning old truths.

The Pentagon’s inspector general is preparing a report on the treatment of military ballots, the findings of which will be refined into new policies. Moreover, among the slew of election reforms being considered in Congress are a pair of measures aimed squarely at protecting the votes of American servicemen and women.

Rep. Bob Riley, R-Ala., introduced his Armed Services Voting Act on January 3—the earliest a bill could be dropped in the 107th Congress.  Rep. David Vitter, R-La., wasn’t far behind Riley, submitting his Armed Services Absentee Ballot Act just three weeks later. If Riley and Vitter have anything to say about it, Herron’s checklist of technicalities will be a relic of the past. Both bills would prohibit states from throwing out military-absentee ballots “unless the state finds clear and convincing evidence of fraud.”[16] 

“We must take action soon and solve this problem before another soldier, sailor, airman or Marine is left out of the voting process that ultimately selects their commander-in-chief,” Riley said as he introduced his reform proposal.[17]

 Vitter agrees. “Trial lawyers and political operatives should not be allowed to systematically eliminate the legitimately cast ballots of servicemen and women,” according to Vitter. “Under my bill, if a man or woman in the military made a good faith effort to vote, their vote will count.”[18]

The only difference between the two bills is that Vitter’s directs the defense secretary to develop a plan for establishing a uniform electronic voting system for servicemen on deployment.

Ironically, the Pentagon took its first, tentative steps into the Brave New World of “e-voting” in November, when a handful of service members from around the world cast their votes via the Internet. “It worked flawlessly,” according to Polli Brunelli, director of the Federal Voting Assistance Program, which coordinated the landmark vote.[19] Given what happened in Florida, online voting could be the wave of the future.

If nothing else, the sad turn of events in Florida has reminded Americans of every political stripe that the right to vote is no ordinary right.  It’s powerful yet fragile. And it’s worth fighting for—especially when it comes to the votes of those who are fighting for us.

[1]George W. Bush v. Albert Gore, December 12, 2000, p.1.

[2]Palm Beach County Canvassing Board v. Katherine Harris, November 21, 2000, p.30.

[3]Albert Gore and Joseph Lieberman v. Katherine Harris, December 22, 2000, p.3.

[4] Gore interview with CBS as excerpted by The New York Times, November 27, 2000.

[5] Bill Daley statement, November 10, 2000.

[6]Palm Beach County Canvassing Board v. Katherine Harris, November 21, 2000, pp.8-9.

[7] John Fund, “Long-Distance Voting,” OpinionJournal.com, July 30, 2000.

[8] Ibid.

[9] Florida Department of State, Federal Overseas Absentee Results, November 17, 2000.

[10] Kevin Coleman, “The Uniformed and Overseas Citizens Absentee Voting Act: Background issues for the 107th Congress,” CRS Report for Congress, January 12, 2001, p.5.

[11] Paul Brinkley Rogers and Tyler Bridges, “Ballot rules devastate military vote,” The Miami Herald, November 20, 2000.

[12] Stephen Buyer as quoted in Matt Smith’s “Kerrey calls for GOP to retract military ballot accusations,” CNN.com, November 21, 2000.

[13] See David Von Drehle, et al, “For Bush Camp, Some Momentum from a Memo,” The Washington Post, January 31, 2001.

[14]As excerpted by Matt Smith.

[15] Zell Miller as quoted by Kendal Weaver, “GOP says Democratic reversal on military ballots is too little, too late,” Associated Press, November 21, 2000.

[16] See HR 159 and HR 311.

[17] Bob Riley news release, January 8, 2001.

[18] David Vitter news release, January 30, 2001.

[19] Jim Garamone, “Say Goodbye to Chad, DoD Tests Internet Voting,” AFIS News, January 25, 2001.