-Caveat Lector-
Did Bush camp encourage military personnel to vote after
Election Day? In an excerpt from his new book, Jake Tapper
uncovers the down and dirty partisan scuffle to win the Florida
recount battle -- and the presidency.
- - - - - - - - - -
By Jake Tapper
March 5, 2001 | In the heat of last fall's historic post-
election presidential campaign, when advocates for Al Gore and
George W. Bush were navigating the swampy world of Florida
election law, some of the ugliest wrangling -- and some of the
most legally debatable maneuvering on both sides -- centered on
the counting of overseas absentee ballots.
According to a knowledgeable Republican operative, the Bush camp
even discussed a strategy that, if implemented, would have
broken the law: organizing a post-election get-out-the-vote
drive among overseas military personnel who had registered to
vote but had not cast ballots by Election Day.
Bush officials did not return calls seeking comment on the
report. But according to the knowledgeable GOP source, on
Saturday, Nov. 11, Bush's political team held a 60- to 90-minute
conference call for campaign operatives scattered throughout
Florida. In the course of the discussion, they discussed having
political operatives near overseas military bases encourage
soldiers who had registered to vote -- but never did -- to fill
out their ballots and send them in, more than four days after
the voting deadline.
Was this plan, a blatant act of voter fraud, ever carried out?
There's no concrete proof that it was, as of today -- and if it
was, whoever was involved isn't talking. (Neither South
Carolina-based strategist Warren Tompkins, who ran Bush's
absentee ballot monitoring operation, nor Bush political
director Ken Mehlman returned calls for comment.) What's not in
doubt is the crucial role the overseas military ballots -- and
the vicious, behind-the-scenes battle over whether to count them
-- played in the outcome of the Florida vote and, ultimately,
the election.
Before the election, 23,246 overseas ballots were mailed out
from the state of Florida, and more than half of them -- 14,415
-- had come in by Election Day. As of Nov. 13, Monday, Florida's
67 counties had received 446 military overseas ballots since
Nov. 8.
By Nov. 16, Thursday afternoon, that number had swelled to
2,575.
By the next day, it was 3,733.
There was certainly plenty of wrangling and duplicity on both
sides when it came to the issue of overseas absentee ballots. At
a time when the Gore team's mantra was "Count every vote," for
instance, its attorneys were trying to disqualify any ballot
cast by overseas military personnel that was even remotely
questionable. And the Bush team -- worried about whether it
would be hurt by the overseas absentee ballots, thanks to the
high numbers of voters in Israel who might be energized by Joe
Lieberman's presence on the ticket -- at first focused on trying
to scope out and prevent possible voter fraud by the absentees.
Gore-Lieberman garnered 80 percent of the Jewish vote Nov. 7,
and estimates held that about 4,000 Florida Jews might be
expected to cast absentee ballots from the land of milk and
honey.
It was clear to strategists on both sides, within days after
Nov. 7, that they needed to supplement their focus on hand
recounts with a side strategy on the overseas absentee ballots,
which were due Friday, Nov. 17. The Bush team turned to Warren
Tompkins -- who had helmed Bush's nasty South Carolina primary
campaign against Arizona Sen. John McCain -- to coordinate its
strategy. Days after the election, he put together a spreadsheet
on the overseas absentee ballots, what had come in already, what
had been counted, how many had been requested, how many were
still expected in and so on. The overseas absentee ballots were
likely to go their way, Tompkins told his colleagues, but he
anticipated that the Democrats wouldn't make it easy for them to
be accepted, and would challenge as many as possible.
"You're kidding me," spokeswoman Mindy Tucker said. "They can't
protest."
"We think they're going to," Tompkins responded.
Tucker wanted to let the press know about this at once, but she
was overruled. Let's wait, she was told.
It was on Nov. 11 that the Bush political team organized a
conference call to discuss its absentee ballot strategy. In
those first crazy days of the post-election battle, anywhere
from a dozen to 60 or so people could have been on the call.
Many matters were attended to. The group talked about finding
volunteers to be observers in counties doing recounts. They
talked about drumming up protesters. They talked about assigning
operatives to different clerks' offices to wait for the overseas
absentee ballots, and to report anything Democrats did to
challenge them. And, according to a knowledgeable Republican
source, in the course of this conversation the Bush team
discussed having political operatives abroad encourage certain
soldiers who had registered to vote -- but never did - to do so
after the voting deadline.
The group discussed how to target Republicans in the drive.
Voter registration files made it possible to identify which
soldiers, sailors and airmen were Democrats and which were
Republicans, which were black and which were white. Let's target
the likely Bush supporters, one of the operatives said,
according to the GOP source -- we'll get them to send their
ballots in and then argue about the postmarks later. We're gonna
raise a stink and force them to count these ballots. We don't
know how they're gonna come in, but we need every vote we can
get.
Indeed they did. Whether or not Bush supporters actually carried
out the suggestion of getting military personnel to vote
illegally, their focus on those ballots paid off. Bush attorney
Fred Bartlit, who argued for more lenient assessments of the
overseas absentee ballots on behalf of the Bush campaign, told
me that he knew nothing about any attempt to obtain post-
election votes. In fact, the Republican operative with
information about the Nov. 11 conference call was quick to point
out that not one member of the Bush legal team was on the call -
- just some of the political movers.
That said, the Bush team's public strategy to deal with the
overseas ballots certainly yielded results. Bartlit told me that
his side's legal maneuvering -- they took 15 Florida counties to
court to try to "shake out" more votes -- resulted in anywhere
from 300 to 400 new overseas ballots being counted by the time
Secretary of State Katherine Harris certified the election
results on Nov. 26. Less anecdotally, Bush attorney Jason Unger
says that 176 new net Bush votes were counted for Bush after the
Bushies took the 15 counties to court.
A new 176 votes "shaken out" in this process might not sound
like much until you put the number next to the lead Bush had
before the U.S. Supreme Court stepped in to put an end to all
the counting on Saturday, Dec. 9. That number: 154. That makes
those 176 votes seem slightly more significant.
The story of the battle over the overseas absentee ballots
features plenty of down-and-dirty political maneuvering on both
sides. But as was the case with the entire Florida election
battle, the Democrats never played hardball as well as the
Republicans. On the biggest issue of all, for example -- whether
and how to seek a manual recount, whether to include overvotes
or just undervotes, and in which counties -- Gore made
horrendous strategic and public relations decisions. He
pretended his goal was counting every vote, yet his attorneys
only sought recounts of undervotes in dense Democratic counties.
They lost the P.R. battle because the Bush camp could rightly
claim they were being hypocritical, and they lost the political
battle as well, since subsequent analyses suggest that a
statewide manual recount could possibly have given the edge to
the former vice president.
On the overseas absentee ballot issue, it was the Democrats who
were first accused of pondering an illegal post-election drive.
After an obscure news item referred to a Democratic lawyer
allegedly hatching such a scheme, former Florida Secretary of
State Jim Smith, a Republican, was instructed to go before the
cameras on Sunday, Nov. 12, and lay down the strict law of the
land as it pertained to overseas absentee ballots.
"The Florida law is simple, straightforward and reason-based,"
Smith said. He laid out the rules: Overseas ballots must be
either postmarked by Nov. 7; or signed and dated no later than
Nov. 7. Those mailed from overseas also required an Army Post
Office, Fleet Post Office or foreign post mark.
"It is a felony to perpetrate, attempt or aid in any fraud of
any vote cast or attempted, such as backdating an absentee
ballot," he said. He used the word "fraud" once, the word
"felony" four times.
A reporter asked Smith: Why are you here?
"At the request of the Republican Party of Florida," he replied,
citing concerns over "news reports that there has been some
encouragement of some individuals overseas who may not have not
cast their ballot" but were erroneously told that "even though
the Nov. 7th date has passed they could still do that."
Meanwhile, over at the Democrats' post-election headquarters,
attorney Mark Herron was working on the same project. Herron had
no knowledge of Smith's press conference, though his
understanding of the law was the same.
Herron and his law firm -- Akerman Senterfitt & Eidson -- had
just parted ways. The other partners didn't want him to work for
Gore, and told him that if he continued to do so he would have
to leave. So he did.
Over the weekend, the Gore campaign asked Herron to look into
the overseas absentee ballot issue. Back in 1980, it was clear
that Florida had an inherent defect in its election system,
arising from the fact that its primary elections were so late --
a September primary, then a runoff in October. How could they
get the overseas ballots out when they didn't even know who was
going to be on the ballot until October? The choice was either
move the primaries back, or give overseas voters more time. So
in 1984, the state of Florida and the federal government entered
into a consent decree, which allowed these ballots to come in up
to 10 days late -- as long as they were postmarked by Election
Day or, if they didn't have a postmark (some letters from
overseas military bases aren't postmarked), were signed and
dated by Election Day.
In 1989, despite the consent decree, the Florida Legislature
ruled that only ballots with postmarks could be considered
valid, and Republican Smith and Democrat Herron clearly read the
conflict the same way -- the 1989 law ruled supreme. Both were
operating out of political interest, of course -- Smith trying
to guard against invalid Gore votes, presumably from Jews in
Israel, Herron against invalid Bush votes, presumably from
soldiers.
It was a rare moment when the campaigns could agree. But not for
long.
On Friday, Nov. 17, Bush attorney Jason Unger was only one of
many attorneys hired by the state GOP to focus on the issue of
military overseas absentee ballots. Working with other attorneys
at his firm, Gray Harris & Robinson, Unger had prepared all week
for deadline day.
Ed Fleming, a Republican attorney in Pensacola who represents
Rep. Joe Scarborough, R-Fla., had been drafted by Unger to work
on the project. In one of their conversations, Unger told
Fleming of a rumor he'd heard that the Dems were going to go
full-bore in challenging overseas military absentee ballots. On
Thursday, Fleming asked a local county attorney if he'd heard
anything about the rumor. Sure, the attorney told him. Got a
memo right here about it, written by the Democrats. He faxed
Fleming the memo. It was written by Mark Herron, outlining the
Gore strategy.
Fleming passed news of the memo to Stuart Bowen, a Bush attorney
from Austin who was supervising the absentee ballot effort in
the Panhandle. On Friday morning, after making sure that Fleming
obtained the memo legally, Bowen told him to fax the memo to
Tallahassee ASAP.
At 11:42 a.m., the memo arrived in Unger's office. He showed it
to Washington attorney David Aufhauser (nominated Wednesday to
be general counsel for the Department of the Treasury). Within
minutes, Bush campaign counsel Ben Ginsberg had it. Within
seconds after that, Bush Florida recount general Jim Baker.
"This is gold," said spokeswoman Mindy Tucker, when it got
around to her.
It was a P.R. jackpot -- it played into an already existing
perception that the Democratic Party cared less about the
military than the Republicans do. Plus there was the hypocrisy
of the Gore campaign's count-every-vote rallying cry. Count
every vote ... except for American soldiers?
From then on, the GOP operatives would refer only to "military
ballots," not "overseas absentee ballots."
Duval County, Clay County, Escambia County, Okaloosa County --
places with the highest concentration of military voters seemed
to be where the Democrats' fervor was the most heated. Gore
operatives were after ballots for not having a postmark, or for
having a U.S. postmark, though the military would later explain
that several batches of these overseas ballots were postmarked
in the U.S. after arriving from various port cities.
They were also after federal write-in ballots, which are for
individuals abroad who claim that they requested an absentee
ballot but never received one. Voters who used federal write-in
ballots had to swear in an affidavit under penalty of perjury
that they requested absentee ballots and didn't receive any, and
provide all needed identification.
The Gore campaign made election supervisors check the names of
these voters against their records to see if, in fact, they did
request absentee ballots.
Meanwhile, a Florida GOP official, Al Austin, called up his good
friend Norman Schwarzkopf to see if he knew about the Herron
memo. When Schwarzkopf learned of it, the Persian Gulf War
commander blew his top. But Schwarzkopf was sick with the flu,
so he couldn't appear at any press event. Nevertheless, on the
morning of Saturday, Nov. 18, Schwarzkopf called Tucker and
dictated a statement.
"These armed forces ballots should be allowed to be tallied,"
Schwarzkopf said. "It is a very sad day in our country when the
men and women of the armed forces are serving abroad and facing
danger on a daily basis. That because of some technicality out
of their control, they are denied the right to vote for the
president of the United States who will be their commander in
chief."
On TV Saturday, and in print on Sunday, the story erupted.
Ron Klain, head of the Gore legal team, tried to point out that
the rules the Herron memo detailed were just the same rules that
Jim Smith spelled out on Sunday, when the Republicans were
fearful of sacks of absentee ballots coming S.W.A.K. from Tel
Aviv. Klain ran over to CNN, MSNBC, Fox News Channel,
distributing copies of the transcript of Smith's press
conference. But not one of these media outlets mentioned
Sunday's press conference by Jim Smith, and how the Bushies had
shamelessly pulled a 180 on the overseas ballot issue, once it
became clear that rigorous application of the law would clearly
affect armed servicemen and women far more than Jews abroad in
Israel.
Instead, the media's focus was on Gore's mad rush to
disenfranchise American soldiers. Of the 3,733 overseas absentee
ballots that had come in since Election Day, 1,527 of them had
been scrapped for various irregularities.
Behind closed doors, vice presidential nominee Sen. Joe
Lieberman, D-Conn., had been the most aggressive proponent of
using the law any way that the Gore team could. That's what made
his capitulation on the overseas absentee ballot issue, when Tim
Russert grilled him about it on "Meet the Press" Sunday, Nov.
19, so astonishing.
On the show, Russert brandished the Herron memo and browbeat
Lieberman with it. "Many controversies swirling in Florida,"
Russert said, before leaning in for the kill. "How can a
campaign who insists on the intent of the voter, the will of the
people, not disenfranchising anybody accept knocking out the
votes of people of armed services?"
Lieberman weakly replied that he hadn't read Herron's memo, that
Russert's copy of it was the first he'd actually seen of it.
"Let me just say that the vice president and I would never
authorize, and would not tolerate, a campaign that was aimed
specifically at invalidating absentee ballots from members of
our armed services," Lieberman said.
Russert read from more Bush propaganda, a letter the Bushies
secured from the deputy director of the military postal services
who "says that if a sailor is on a ship, it's hard to get a
postmark." He pressed Lieberman. "Will you today, as a
representative of the Gore campaign, ask every county to re-look
at those ballots that came from armed services people and waive
any so-called irregularities or technicalities which would
disqualify them?"
Lieberman folded. "We ought to do everything we can to count the
votes of our military personnel overseas. I would give the
benefit of the doubt to ballots coming in from military
personnel generally, but particularly in light of the letter and
the kind of statements we've heard about that."
Among those watching "Meet the Press" Sunday morning was Herron,
who was stunned to see Joe Lieberman sell him down the river.
All his memo did was detail Florida law. He had written it, for
God's sake, at the direction of the Gore-Lieberman team! He'd
already lost his job so he could help the effort, and here was
the vice presidential nominee distancing himself from the memo
when all it did was explain Florida law!
Gore politico Nick Baldick's reaction was a little less
measured. "Fuck Joe Lieberman!" he yelled to several colleagues.
He swore that should Lieberman ever run for president he would
do everything he could to defeat him in the states in which he
had worked so hard on behalf of Gore: New Hampshire and Florida.
Meanwhile, the Bush team was lining up its heaviest legal
hitters for the military ballot brawl. Fred Bartlit had been a
young Kirkland & Ellis attorney in 1960 when the GOP hired him
to investigate vote fraud in Texas. On Saturday, Nov. 18, he was
at his daughter's wedding at the Drake Hotel in Chicago when he
got a call from an associate at his firm, Bartlit, Beck, Herman,
Palenchar & Scott in Denver. The Bush team wanted Bartlit to
leave the wedding ASAP, fly down to Florida and argue for the
inclusion of overseas military absentee ballots, he was told.
Bartlit, 68, agreed to do it the next morning.
A West Point grad and former Army Ranger, Bartlit's a tough-
talking guy who constantly derides the world's overwhelming
amount of "bullshit." He arrived in Tallahassee the morning of
Sunday, Nov. 19 -- the same morning Tim Russert was beating up
Joe Lieberman -- and he got to work on the overseas military
absentee ballot case. The Bushies were suing 15 different
counties to reconsider overseas ballots they'd disqualified.
Accompanied by Glenn Summers, an attorney at Bartlit's firm, and
Unger, Bartlit presented his case on Friday, Nov. 24, before
Judge Ralph "Bubba" Smith. Bartlit knew that however strong the
overseas military absentee ballot case was politically, it had
limited potential legally.
Given the law, so well outlined by their own Jim Smith, no one
would say they had a great case. There were serious questions
about venue -- whether they should be dragging 15 counties to a
Tallahassee courtroom instead of filing in 15 different county
seats throughout the state. But something had to be done,
Bartlit and Bush attorney Kirk Van Tine had decided. Although
the Democrats had apparently retreated from the Herron memo, the
Bush campaign estimated that about 500 ballots had been rejected
for technicalities -- and they thought they had a chance to get
them included.
They zeroed in on legal confusion over whether an absentee
ballot had to have a postmark -- or whether it was enough, if it
was sent from a ship or some military location where it couldn't
be postmarked, that it was signed and dated -- and tried to
shake out every single absentee ballot they could. Some Bush
pols repeated arguments to reporters that they wouldn't make in
the courtroom: that they wanted military ballots given every
possible benefit of the doubt.
They wanted ballots to count that bore unreadable postmarks.
They also wanted post-Election Day postmarks to count.
How much if any of this emphasis on including ballots that
weren't postmarked was rooted in the conference call from a week
before is impossible to say.
When Bartlit walked into the courtroom, he expected to see Gore
lawyers there, to argue on his side that these ballots should be
counted -- the argument that, after all, Lieberman made on TV.
They weren't there, which Bartlit found a bit sleazy. But nor
were they there to argue against him, which Bartlit found a
little bit disappointing, since he had a computer file full of
graphics of Lieberman quotes making his argument.
Since the point was to get Bush votes, Bartlit dropped a Bush
suit against Clay County, once it agreed to take the 17 absentee
ballots it had rejected the week before and accept 14 of them.
Twelve of them were for Bush.
The lawyer for Bay County asked Bartlit if the Bush campaign was
going to dismiss its suit against his county's canvassing board,
too, since they'd reconsidered 12 absentee ballots, resulting in
a net gain of two votes for Bush. The Bush team wanted the
county to look at even more votes. "We still have differences
with Bay County," Bartlit said. And Escambia, Dade, Okaloosa,
Collier, Leon, Pasco Counties, etc., etc. The list went on. Fred
Bartlit hadn't been brought there to make it easy.
As the case proceeded, representatives of the canvassing boards
argued that they had just followed the law.
Michael Chesser, representing Okaloosa County, made sure that
everyone knew the disagreement with Bartlit and the Bushies had
nothing to do with party label. "By registration and by voting
practice, Okaloosa County is highly partisan," he said. "It is a
home to Eglin Air Force Base, which is the largest air force
base in the world. While it may be possible for some folks in
this room to be highly partisan, it is entirely inappropriate, I
would submit, either for the court or for a canvassing board to
let partisanism enter in to what they do."
Soon enough, Judge Smith called it a day without ruling. But
before the sun set, the Bush campaign had withdrawn all its
suits. Nine of the 14 counties contacted the Bush legal team and
said they were going to go along with what it wanted them to do,
and bend over backward to include absentee votes, even if they
didn't meet the strict requirements in the law. The Bush
attorneys then took their lawsuits directly to the five
remaining counties, away from Smith. To Hillsborough, Okaloosa,
Pasco, Orange and Polk counties they went, trolling for votes.
An anti-Gore rally was held in Pensacola. Elections supervisors
were bombarded with angry, clearly coordinated, phone calls and
e-mails. In Duval County, the canvassing board reviewed the
absentees and gave Bush 20 net votes.
In Brevard County -- home to Cape Canaveral and Patrick Air
Force Base -- Bush gained eight net votes.
Late ballots were accepted in Escambia and Santa Rosa counties.
Escambia gave Bush 36 net votes. The Santa Rosa County
canvassing board accepted two ballots with postmarks of Nov. 8,
the day after the election, and five ballots that arrived after
Nov. 17.
Clay County (Bush 41,736, Gore 14,632) accepted two votes that
arrived by fax.
Eventually, Bush picked up a net of 176 votes by Thanksgiving
weekend. Unger referred to the operation as "Thanksgiving
stuffing." In December, Bartlit told me that he estimated that
at the end of it all, the suit shook out maybe 300-400 net votes
for Bush.
Either number, of course, provided Bush with more than his
official 154-vote margin of victory.
- - - - - - - - - - - -
About the writer Jake Tapper is Salon's Washington
correspondent. His upcoming book is "Down and Dirty : The Plot
to Steal the Presidency."
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