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Jewish World Review July 26, 2001/ 6 Menachem-Av, 5761

Bob Zelnick

Bob Zelnick
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What the media refuses to report about Election 2000 -- READERS of the New York Times were treated on Sunday to a massive report claiming that hundreds of overseas Florida ballots cast in violation of state law were nonetheless counted by election officials under pressure from representatives of George W. Bush. While even the Times stops short of claiming that inclusion of the "flawed" votes spelled the difference between victory and defeat for Mr. Bush, the report is clearly meant to provide ammunition for those who question the legitimacy of his victory and presidency.

Considering the vast research that went into the report, there are stunning critical gaps. One involves counting overseas military ballots with no postmark. Another involves counting special federal ballots mailed by voters who offered no "proof" that they had earlier tried to obtain state absentee ballots. In both cases the Times suggests state law was violated.

What the story fails to report is that federal law required Florida to count these votes. Following the presidential election of 1980, the U.S. Justice Department brought suit against Florida charging that the state's laws and procedures unduly burdened overseas military personnel seeking to vote. In August 1982, Florida signed a consent decree, acknowledging deficiencies and pledging reform.

One of the problems was a state law prohibiting the counting of overseas military ballots unless they were mailed with an Army Post Office, Fleet Post Office or foreign postmark. Personnel on maneuvers or in combat get their mail out in a variety of ways and ought not to be disenfranchised if, say, Bosnian postal authorities treat their mail carelessly. Accordingly, Florida amended its Administrative Code to require only that the ballot be "postmarked or signed and dated no later than the date of the Federal election." The change became part of the consent decree, giving it precedence over any inconsistent provision in state law.

Regarding requests for overseas ballots, several states had laws similar to Florida's. Congress addressed this situation in 1986 with the Uniformed and Overseas Citizens Absentee Voting Act. This permits overseas voters who have not received state ballots to cast a generic federal ballot. To protect against fraud, the overseas voter must sign an oath stating "that my application for a regular state absentee ballot was mailed in time to be received 30 days prior to this election." The oath is a substitute for physical proof of the effort to obtain a state ballot.

To the Gore team, the absentee ballots to be counted on Nov. 17, 2000, were a lethal threat. Bob Dole, who lost Florida in 1996, had won a hefty majority of absentee ballots and Mr. Bush was expected to prevail by 2-1. On Nov. 15, Gore campaign attorney Mark Herron circulated a memo to Democratic lawyers across the state providing a five-point guide to throwing out military votes. The first instructed Gore lawyers to "Determine that the voter affirmatively requested an overseas ballot," the intent being to exclude federal ballots supported only by the oath.

Item number five on the Herron list stated that only those ballots mailed with an APO, FPO, or foreign postmark should be considered valid. He acknowledged that his instructions were inconsistent with the Florida Administrative Code. But there was not a word of this in the Times.

The Gore team was successful in scuttling military votes, particularly in Democratic counties. A total of 356 overseas military ballots were disallowed due to postmark challenges and another 157 because there was no independent record of requests for state absentee ballots. Combined with other causes, a total of 788 military absentee ballots were rejected. In Bush counties, 29% of overseas ballots were disallowed, but the figure was 60% in Gore counties; in pliant Broward, the Gore kill rate was 77%. Compared with these totals, the number of voters documented by the Times who cast illegal ballots--e.g., by omitting to include a witness, or mailing envelopes postmarked inside the U.S.--seems positively puny.

When the Herron memo became public, the Bush team erupted in protest. Democrats, from Joseph Lieberman on down, retreated. Florida Attorney General Robert A. Butterworth issued a memorandum saying that "canvassing boards should count overseas ballots which are from qualified military electors and which bear no postmark if the ballot is signed and dated no later than the date of the election."

Mr. Bush's team then filed suit against seven county canvassing boards. On Dec. 8, U.S. District Judge Lacey A. Collier found that any state statute requiring an APO, FPO or foreign postmark "conflicts with federal law." The judge also held: "We must presume . . . that if the election official does not have the application on record, it is because of a problem with the overseas mail system or their own clerical error." The generic federal ballot supported by an oath had to be counted.

At the time, Mr. Bush's lawyers expected the decision to increase his victory margin by up to 500 votes, providing an additional buffer against any last-minute recount mandated by the Florida Supreme Court. As we know, the recount was terminated by the U.S. Supreme Court four days later, putting Mr. Bush in the White House, but without the additional absentee military votes.

Through journalistic alchemy, absentee votes required by federal law to be counted have now become "flawed ballots" serving to further delegitimize the victory. We can expect more of the same in weeks ahead when Sen. Christopher Dodd (D., Conn.) takes his Rules Committee on an excursion through election reform. The myth of a stolen election gallops on, impervious to fact, reason and law.

JWR contributor Bob Zelnick is the author of, among others, Backfire: A Reporter's Look at Affirmative Action and Gore: A Political Life . A former ABC News correspondent, he is a professor of journalism at Boston University and a research fellow at the Hoover Institution, which will publish his book on the Florida contest next month. Comment on this column by clicking here.

© 2001, Bob Zelnick