"Lost" Votes and a Stolen Election

by Paul Lukasiak, with Maia Cowan
(revised 10 March 2001)

 
Elections officials in Republican-controlled Florida counties omitted potentially thousands of votes from their certified totals. The ballot designs in these counties encouraged voters to both mark a listed candidate and write in the same candidate's name. Such votes were rejected as overvotes although they are defined by law as valid votes that should be counted. The Florida Secretary of State failed in her duties regarding the conduct of elections by certifying vote totals that did not include these votes.
 

On 19 December 2000, the Orlando Sentinel published the results of its examination of Lake County's optically scanned overvoted ballots. They found 622 votes that were marked for a listed candidate and had that same candidate written in on the lines provided for write-in votes. Lake County elections officials had voted 2–1 to disqualify these ballots as overvoted.1

That was a crime. Under unambiguous Florida law, those ballots contained legal votes for the candidate whose name was marked. The laws stipulate that all ballots with potentially valid write-in votes must be examined and tallied by the County Canvassing Board, and a ballot is not overvoted unless there is a vote for more than one qualified (registered) candidate.

In Lee County, the punch-card ballot had a hole next to the instructions to voters on how to cast a vote for a write-in candidate. In previous elections for at least the last eight years, no such hole existed. When Lee County tabulated these ballots by machine, ballots with legal votes on them were counted as overvotes. A manual recount of the Lee County overvotes, conducted by County Elections Supervisor Philinda Young on March 7, identified seven uncounted legal votes — votes that Mrs. Young was not even aware had been counted improperly.2

Eight other, smaller counties also excluded this same type of legal vote from their counts. Despite the fact that George W. Bush carried these counties by 55 to 43 percent, Al Gore would have received a net gain of 194 votes from all nine counties.3 These were not the only counties in Florida where such legal votes were counted as overvotes. There may be thousands of fully legal votes that were never counted either because of deliberate omissions by Republican elections officials, or because elected officials never bothered to check how their votes were being counted.

The Florida Secretary of State ignored her statutory duty concerning the conduct of elections when she included in her certified totals more than 31,000 overvotes from counties that violated Florida law by the way they handled these votes. Most of the ballots certified as overvotes were overvotes in fact. Many, however, were valid votes, and it was illegal not to count them.

It is common knowledge among politicians and elections officials that certain voters are far more likely to make "mistakes" than others. Older voters unfamiliar with and intimidated by election technology tend to make more mistakes. People for whom English is not their first language tend to make more mistakes. Because of lack of equal educational opportunities and historic patterns of vote suppression, African American voters tend to make more mistakes. All of these groups support Democratic candidates far more than Republican candidates.

State Republican elections officials exploited these facts, and did nothing to make sure that all prescribed legal votes got counted. While the rest of the country was thinking about recounts and dimples and court cases, these officials, who are responsible for the conduct of elections throughout the state, allowed hundreds if not thousands of prescribed legal votes to go uncounted. While Al Gore had his lawyers investigating Florida law about overseas absentee ballots and Florida Court cases about election contests, no one ever imagined that, by not enforcing the laws concerning write-in votes, Republican officials were probably denying Gore a rightful victory.

Florida election law is unambiguous when it comes to counting votes, despite the best efforts of George W. Bush and his supporters to characterize it as muddled and confusing. It is so clear, in fact, that only by ignoring or deliberately misinterpreting the law could these legal votes not have been counted.

Most people express skepticism when first confronted with these allegations. But the law is crystal clear, and the numbers are beyond dispute.

Florida Election Law And Voting For Write-In Candidates

When it comes to voting, Florida law recognizes the obvious: We live in a democracy, and democracy means government by the consent of the people, as determined by the exercise of the fundamental right to vote and to have that vote counted.4 Voting is not a test of ability to comprehend instructions that are often complex, contradictory, and confusing in a limited period of time; it is the expression of the will of the people.

One of the most confusing aspects of voting is the "write-in" provision on ballots. A voter who is unfamiliar with election procedures may "make sure" of the vote by writing in the candidate's name as well as filling in an oval or punching out a chad.

Florida law goes to significant lengths to make sure such voters are not disenfranchised, laying out a series of procedures and standards designed to ensure that the will of these voters is recorded in every canvass of its returns. When the ballots for the Presidential election were counted in Florida, however, some elections officials simply ignored these procedures, violating not only the laws of the State of Florida but their oath of office and every ethical standard that a democracy requires of its elected officials. Even more significantly, the state Division of Elections — controlled by Republican officials — did nothing to ensure that these votes were included.

The rules governing Florida elections are recorded in two different places. The Florida Statutes (FS) comprise the laws passed by the state legislature. The Florida Administrative Code (FAC) comprises rules that are established under the authority of the statutes and that have the force of law.

Instructions to Supervisors Of Elections

If any questions arise regarding the proper interpretation of the statutes, county officials are specifically directed to follow procedures found in the Florida Administrative Code. FS 101.5608(4) states:
In any election in which a write-in candidate has qualified for office, the supervisor of elections shall provide for write-in voting pursuant to rules adopted by the Division of Elections. [emphasis added]
These rules are found in the Florida Administrative Codes.

General Definition of Overvotes

The definition of an overvote is found in FS 101.5614(6):
If an elector marks more names than there are persons to be elected to an office or if it is impossible to determine the elector's choice, the elector's ballot shall not be counted for that office, but the ballot shall not be invalidated as to those names which are properly marked. [emphasis added]
The consistent distinction in Florida law between "candidate's names" and "write-in instructions"5 makes it clear that, in terms of legal votes, marking a hole next to the write-in instructions without writing in any candidate's name does not create a vote.

Separate Inspection of All Potential Write-In Votes Required

FS 101.5614(4) specifies that every ballot containing a potential write-in vote must be examined by a human being, and that the ballots must be counted separately from the machine-counted ballots.
…For each ballot or ballot and ballot envelope on which write-in votes have been cast, the canvassing board shall compare the write-in votes with the votes cast on the ballot card; if the total number of votes for any office exceeds the number allowed by law, a notation to that effect, specifying the office involved, shall be entered on the back of the ballot card or in a margin if voting areas are printed on both sides of the ballot card. Such votes shall not be counted. All valid votes shall be tallied by the canvassing board. [emphasis added]
FS 101.5614(8) makes it clear that write-in votes and manually counted votes are to be tallied separately from machine-tabulated votes.
The return printed by the automatic tabulating equipment, to which has been added the return of write-in, absentee, and manually counted votes, shall constitute the official return of the election… [emphasis added]

Precise Instructions on How to Evaluate Ballots with Write-In Votes

The statutes and rules provide precise instructions for the canvassing boards when it comes to evaluating write-in votes: Florida county elections officials have some discretion in deciding what constitutes a vote and what does not. The canvassing board could ignore any "stand-alone" write-in vote for George Bush or Al Gore, or they could count it. But according to Professor Joseph Little of the University of Florida, an expert on Florida state and local government law, it was not within their discretion to reject the vote of someone who both marked a name in the list of candidates and wrote in the same candidate's name. "Canvassing boards do not possess discretion to reject [not count] legally prescribed votes…. [A] ballot that votes for a named candidate and writes in the same candidate's name is not an overvote. It is a vote for the named candidate."8

The lawyer for the Florida Association of Supervisors of Elections is also on record as saying that these votes should have been counted. And the Orlando Sentinel, after examining the statutes and codes, came to the same conclusion.9

The examples in the following table illustrate these rules. ("Chote" was the name of a qualified write-in candidate in the Presidential election. "Mickey Mouse" was not.)

Hole or mark
for GORE
Hole or mark
for BUSH
Hole or mark next to
write-in instructions
Name
written in
Should be
counted as...
yes yes not relevant none overvote
no yes yes Chote overvote
no yes no Chote overvote
no yes yes or no Gore Bush vote
no yes yes or no Bush Bush vote
no yes yes or no Mickey Mouse Bush vote
no yes yes none Bush vote
no no no Bush discretionary
no no yes Bush discretionary

To summarize, under Florida law a ballot with both a mark by a candidate's name and a write-in vote is rejected as an overvote only if the name of a "qualified write-in candidate" is written in. A candidate who is listed on the ballot cannot also be a "qualified write-in candidate" for the same office. If a voter marks a listed candidate and also writes the same candidate's name in the "write-in candidate" space, it is not an overvote. The write-in vote is voided, but the vote for the listed candidate is valid and must be counted.

That's the law. It was ignored in Lake County. It was ignored in Escambia County. It was ignored in Lee County. And perhaps most significantly, it was ignored in Duval County, where nearly 22,000 people had their votes rejected as overvotes. Statewide, there is a pool of more than 31,000 ballots containing hundreds if not thousands of legal votes that were never counted.

The Lake County Canvassing Board Votes to Ignore the Law

The Orlando Sentinel's examination of Lake County's ballots rejected by the counting machines as overvotes found at least 622 legal votes omitted from its certified total.10 Although George Bush won Lake County, Al Gore got 130 more of these uncounted votes than George Bush (376 to 246).

Every one of those 622 ballots had a mark by the name of a candidate and the same name in the write-in space. By a vote of 2–1, the Lake County elections board decided to ignore the laws of Florida and reject these legally prescribed votes. They did not have the legal authority to do so. But they did it anyway.

When asked about these votes, Bush spokesman Tucker Eskew said they were illegal votes. The votes were not illegal. What was illegal was not counting them.

When Lake County's Republican elections officials were subsequently confronted with the laws by the Orlando Sentinel, they finally admitted that these votes should have been counted, but continued to make excuses and blame voters for the officials' own nonfeasance.11

Escambia County Makes Sure "Mistakes" Go Uncorrected

Much the same thing happened in Escambia County, which recorded 121 write-in votes improperly tabulated by machine and 3,489 overvoted ballots, according to Joan King of the Escambia County Division of Elections. Unlike Lake County, where ballots were tabulated in the central elections office, Escambia's ballots were tabulated in the precincts when the votes were cast. But unlike in the vast majority of "precinct-scanned counties," in Escambia the elections officials did not tell voters when they had overvoted their ballots.12 As a result, Escambia County had an overvote rate (2.99%) well over ten times the median rate of the other precinct-scanned counties (0.23%).

In both Lake and Escambia counties, Bush won by a large margin. Based on the "lost votes" in Lake County, however, by a conservative estimate Gore would have received at least 100 additional net votes in Escambia if the law had been obeyed, and the write-in votes had been counted using the process and standards mandated by Florida law.

Lee County Provides a Hole Where None Had Been Before

Both Duval and Lee Counties used punch-card ballots. Unlike the vast majority of voters who used punch-card ballots in Florida last November, however, Duval and Lee voters were able to punch the hole next to the write-in instructions.13

In both counties, elections officials claim that not one single write-in vote tabulated by machine represented a vote for a qualified write-in candidate. And in both counties, ballot cards with holes punched in the "write-in instructions" space were not examined to determine whether the ballot represented a legal vote as defined by Florida law.

Mary Pat Lanman of the Lee County Division of Elections acknowledged that Lee County changed its ballot before this election. The change made it possible to cause an overvote by punching a hole next to the instructions, "To vote for a write-in candidate, follow the directions on the long stub of your ballot card." In previous elections going back to at least 1994, it was not possible to have a write-in ballot rejected as an overvote for this reason.

Did Duval County Officials Make an All-Out Effort to Steal the Election?

The most significant county is Duval, where a horrendously designed two-page ballot resulted in 21,942 certified overvotes; and where, according to Assistant Supervisor of Elections Richard Carlberg, not one of the 81 machine-counted write-in votes yielded a vote for a qualified write-in candidate.

In Duval County, the sample ballots included incorrect instructions to vote on every page — without making an exception for the two-page list of presidential candidates. The major-party candidates were listed on the first page. The "write-in" hole was on the second page. An inexperienced voter might, therefore, satisfy the instructions by marking a candidate's name on page 1 then punching a hole next to the write-in instructions on page 2.

To make matters worse, unlike Lee County and the vast majority of Florida counties, Duval County did not include legally mandated [FAC 1S-20031(4)]14 instructions to the voter on its ballot. Those instructions should have told voters where to write the name for a write-in vote. Instead, in the second page of the ballot, next to a hole waiting to be punched, appeared only the words "Write-In Candidate." An inexperienced voter might think it was necessary to punch the hole and write the candidate's name in addition to marking the candidate in the list. Duval even included an arrow showing people where to punch a hole, thus increasing the odds that when the ballot was improperly counted by a machine, the legal vote that had been cast would go uncounted.

Despite being legally required to do so, Duval County never examined the punch-card ballots themselves for possible write-in votes. If there was no write-in vote on the "secrecy envelope" of an absentee ballot, it was assumed that no write-in vote was cast.

In these counties, the people running the elections are all highly experienced. They are all legally required to know and enforce the relevant Florida laws.

The Supervisor of Elections for Duval County, John Stafford, is a perfect example. A computer programmer who began his career working for the City of Jacksonville (the Duval county seat), he joined the Duval Division of Elections in 1989 as Data Processing Coordinator. In 1993, he became second in command. And in May 1999, he was elected Supervisor of Elections.

Despite Mr. Stafford's experience, the Duval County ballot seems designed to encourage voter error. In addition to putting the wrong write-in instructions on the ballot and putting an unnecessary hole in the ballot with an arrow pointing to it, Duval's ballot did not include the prescribed instructions on how to vote for President (the ballot says "vote for group"; the law says it should be "vote for one." Some counties used "vote for one group" to avoid ambiguity; the wording on Duval's ballot increased ambiguity). The arrow to the proper hole for a presidential team are aligned below the name of the Vice Presidential candidate, and the Presidential candidate's name is perfectly aligned with another (incorrect) hole. Unlike every other punch-card ballot this writer has ever seen, there are no lines separating the Presidential teams — the absence of lines makes it harder to recognize which holes correspond with which candidate teams.

As both a computer programmer and a veteran elections official, John Stafford had to know that the software would read the punched write-in hole as a vote, and would therefore reject the ballot as an overvote if the voter followed the (incorrect) instructions and voted on every page. According to Stafford himself, at least five people were involved in the design of the Duval County ballot. Is it credible that John Stafford did not know a ballot that encouraged people to punch a hole next to the words "Write-In Candidate" would increase the risk of overvoting?

Having worked in the Division of Elections for more than a decade, Mr. Stafford also had to have known the law concerning write-in votes and overvotes. And as the former Data Processing Coordinator, Mr. Stafford had to know which precincts would most likely have a high rate of "voter error" (and how the people in those precincts generally voted).

According to Mike Langton, the chair of the Duval County Gore Campaign, Mr. Stafford told him that there were only a few hundred undervoted and overvoted ballots. Mr. Stafford also told him on Thursday morning that detailed precinct information would not be available until the following Monday. Duval's returns were certified Thursday evening, despite significant discrepancies in the results provided by the precincts. John Stafford never told Mr. Langton that the votes had been certified. Langton only found out about the extraordinarily high overvote rate when he was called for comment by a reporter hours before the deadline for requesting a manual recount, when there was insufficient time to fulfill the requirements necessary to request a recount of Duval's votes. Stafford has resisted every attempt to have the Duval ballots examined.15

Mistakes or Deliberate Fraud?

In each of these counties, elections officials acted in a way that is consistent with deliberate fraud. The fact that minority voters, less educated voters, and new voters all make more mistakes on ballots is common knowledge among elections officials. It is also common knowledge that these voters tend to vote for Democratic candidates far more than for Republican candidates.

There is no good reason for Duval county officials to have permitted voters to punch out a chad to cast a write-in vote, because under Florida law all write-in votes have to be counted by hand and an otherwise valid write-in vote cannot be disqualified if the chad is not punched. Allowing voters to punch out a "write-in chad" and then counting these ballots by machine caused far more votes for Democratic candidates to be rejected than for Republican candidates. The elections officials in Duval counties are Republicans.

This same situation occurs in Lake County, which tabulated its optically scanned ballots in a central location. Lake County printed instructions on the ballot that the oval must be filled out although state law makes it clear that voters are not required to do so.16

The only reason to fill in or punch a hole for a write-in vote is so ballots can be scanned as soon as they are cast and people who overvoted can receive replacement ballots to correct the mistake. But Escambia County does not provide this overvote protection. Escambia's elections officials used a procedure that would disenfranchise those citizens most likely to "make sure" that their intention was recorded by both marking a listed candidate and writing in the candidate's name.

Who Really Won Florida?

It is impossible to know for certain the number of legal votes that were lost because these counties violated the procedures mandated by Florida law. Differences in ballot design and voting technology create different kinds of "voter error." In Lake County, 20% of the overvoted ballots were actually legal votes. In other eight counties where the ballots were examined by the Orlando Sentinel, only about 10% of the overvoted ballots were legal votes. Lee County found only 7 legal votes out of 2,550 overvotes; except for the unnecessary hole next to the write-in instructions, Lee County's ballot was probably as well designed as a punch-card ballot could be that had to include 10 listed candidates. That "found vote" rate cannot be extrapolated to places like Duval County, where the overvote rate was 600% higher than Lee County's.

These counties were by no means unique within Florida. Analysis of Florida election data indicates that many, if not the vast majority, of Republican-controlled counties violated Florida laws when counting votes — laws that were obviously enacted because certain "errors" by voters were so common. Florida law specifies that writing in a listed candidate's name in addition to marking that candidate in the list does not invalidate the vote, and the law mandates procedures to prevent the vote from being rejected.

By violating election laws, Republican officials in Republican-controlled counties ensured that the certified totals included an illegitimate net loss of votes for Al Gore. In some counties (such as Lee County) these violations during the initial canvass may have been innocent mistakes. But given the hair-thin margin between the two major candidates, it was the absolute minimal duty of every election official in Florida to make sure that every prescribed legal vote was counted.

Some counties, like Leon and Hamilton Counties, went to great lengths to ensure that their citizen's votes were counted; without waiting for a court order, they examined every overvoted and undervoted ballot to see whether they could determine voter intent. A 1990 advisory opinion from the Division of Elections recommends that counties conduct such a review whenever a mandatory recount is triggered by a close election.17

It is a matter of record that most counties did not review the uncounted ballots to identify valid votes. It is also a matter of record that the people responsible for ensuring that elections are conducted correctly, impartially, and accurately failed to do so both before and after Election Day. These people were the Secretary of State, Katherine Harris, and her appointed Director of the Florida Division of Elections, L. Clayton Roberts. These two officials did worse than just ignore their constitutional and statutory duties. They violated clearly established precedent.

-end-

Footnotes
  1. David Damron, Ramsey Campbell and Roger Roy. "Gore would have gained votes in Lake." Orlando Sentinel, 19 December 2000.

  2. Per telephone conversations with Lee County Supervisor of Elections Philinda Young, 7 March 2001. Note: After hearing about this report, a Fort Myers (Lee County) television reporter, Patrick Comer, called Philinda Young to confirm the information. Mrs. Young initially denied that the situation described herein could have happened. The next day, I called Mrs. Young myself and asked her about the counting and handling of these kinds of ballots. Mrs. Young seemed unaware that removing a chad adjacent to the write-in instructions as well as a chad for a listed candidate would have caused a prescribed legal vote not to be counted. After our conversation, Mrs. Young confirmed that ballots could have been miscounted in this manner. At that point, she and three other employees examined all 2,550 overvoted ballots. They found seven legal votes that had been counted as overvotes. [P.L.]

  3. Debbie Salamone Wickham and Harry Wessel. "What's a vote? It varies by county." Orlando Sentinel, 28 January 2001

  4. Division of Elections Advisory Opinion DE 98-12, Duties of the Secretary of State. [The Florida Supreme Court] stated that the electorate is the real party at interest in an election … "Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly it is the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice.… By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right."

  5. Nothing in Florida law permits, encourages, or endorses the use of holes adjacent to write-in instructions on the punch-card ballots used in the Florida counties discussed here. The intent of Florida law is clear that unless there is a vote for a "qualified write-in candidate," a ballot cannot be considered overvoted because of a "write-in vote." There are, however, provisions in the law that do not apply to the ballots discussed here but that could be deliberately misapplied to allow the use of these holes - not to be counted, but as markers.

  6. Florida Administrative Code 1S-20031(6). A name written on the secrecy envelope or portion of the ballot card in which write-in votes may be cast that is other than the name of the qualified write-in candidate for that office or which is otherwise invalid shall not be considered a write-in vote for the purposes of determining if an office has been overvoted. (7) An overvote shall occur when an elector casts a vote on the ballot card and also casts a write-in vote for a qualified write-in candidate for that same office. Upon such an overvote, the entire vote for that office shall be void and shall not be counted. However, an overvote shall not occur when the elector casts a vote on the ballot card but then enters a sham or unqualified name in the write-in space for that same office. In such case, only the write-in vote is void.

  7. Florida Statute 99.061(3)(a). Each person seeking to qualify for election to office as a write-in candidate shall file his or her qualification papers with the respective qualifying officer at any time after noon of the 1st day for qualifying, but not later than noon of the last day of the qualifying period for the office sought.
    (b) Any person who is seeking election as a write-in candidate shall not be required to pay a filing fee, election assessment, or party assessment. A write-in candidate shall not be entitled to have his or her name printed on any ballot; however, space for the write-in candidate's name to be written in shall be provided on the general election ballot. No person may qualify as a write-in candidate if the person has also otherwise qualified for nomination or election to such office. [emphasis added]

  8. E-mail correspondence, 28 February 2001. Professor Little teaches local government law, workers' compensation, torts, U.S. and Florida constitutional law at the University of Florida.

  9. David Damron and Gwyneth K. Shaw. "Lake erred by tossing write-ins." Orlando Sentinel, 28 January 2001.

  10. See footnote 1.

  11. See footnote 9.

  12. See the Escambia County Division of Elections web site, What happens when you receive your ballot?

  13. See footnote 2.

  14. Florida Administrative Code 1S-20031(3). The location of the write-in positions on the ballot shall be clearly marked by the words "WRITE-IN" directly below the candidates whose names appear on the ballot in each office for which a write-in candidate has qualified or, when the write-in positions are on the secrecy envelope or extended ballot, should be marked in substantially the following form: "TO VOTE FOR A WRITE-IN CANDIDATE FOLLOW THE DIRECTIONS ON THE SECRECY ENVELOPE OR EXTENDED BALLOT." The secrecy envelope or extended ballot should also provide space whereby the elector may write in the name of the office and the name of the candidate who has qualified for that office as a write-in candidate. [caps in original]

  15. Numerous articles have discussed John Stafford's conversation with Mike Langton, and Mr. Stafford's actions regarding certification of the votes, including Dems denied hand count in Duval Co and The disappearing ballots of Duval County.

  16. David W. Wersinger. "Lake County's Solution - and More Problems." Orlando Sentinel, 28 January 2001.

  17. Division of Elections Advisory Opinion DE 90-46, Election Recount. ...the phrase "votes cast with respect to such office or measure" refers to the votes actually counted for a race, office or measure appearing on the ballot. "Under" votes or "over" votes are not included. An "under" vote is a ballot on which the elector did not vote in that particular race. An "over" vote is a ballot on which the elector voted for more than the legal number of candidates or measures in a particular race. While the "over" and "under" votes are not included in the recount calculations, the canvassing board should review these ballots during a recount to ensure that the determination of an "under" or "over" vote is correct.... Section 102.141(4), Florida Statutes, provides, in part: "If the returns for any office reflect that a candidate was defeated or eliminated by one-half of a percent or less of the votes cast for such office, that a candidate for retention to a judicial office was retained or not retained by one-half of a percent or less of the votes cast on the question of retention, or that a measure appearing on the ballot was approved or rejected by one-half of a percent or less of the votes cast on such measure, the board responsible for certifying the results of the vote on such race or measure shall order a recount of the votes cast with respect to such office or measure." As indicated by the words "defeated" and "eliminated," the focus of the recount is not on the winner of the race. It serves as [a] precautionary measure to protect the person who has been eliminated from a race or office. [emphasis added]


Copyright © 2003 by Paul Lukasiak
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