The Supreme Court Asks The Question That Black Leaders Won't

We extend our warm congratulations to Supreme Court Chief Justice William Rehnquist for raising the issue; to Justice Anthony Kennedy for immediately following up; and to Justice Stephen Breyer for asking the question that BlackElectorate.com has been harping on for days: Why does the manual recount include undervotes and not overvotes?

The issue has interested us because of all of the noble platitudes emanating from the Gore campaign and even Black civil rights leaders, that they want every vote counted and that they even want votes counted where there was unintentional voter error involved. We have used this space over the last week to point out that there is not a better case or example of what the Gore team claims to want to fight for than that of the overvotes, particularly those which were made in Duval County in predominately Black voting precincts.

In Duval, nearly 27,000 votes were disqualified, 22,000 of which were overvotes.

For the record, an undervote is created when a voter intentionally leaves the ballot blank in a certain race or when a voter tries to make a choice on the ballot but fails to mark his or her choice successfully. There were about 60,000 undervotes in the presidential election in Florida, 45,000 of which were to be examined under order of the Florida Supreme Court. Overvotes occur when two choices in one category are visible or detected on a ballot in one voting category. There were over 100,000 overvotes in the presidential election in Florida.

But the most unique aspect to Duval County, more than the fact that the overvotes occurred in majority Black precincts, is the fact that the overvotes, in part, were caused by a difference in the sample ballot released to the public before the election and the actual ballot that was available on election day. The sample ballot listed all of the Presidential candidates on one page and asked every voter to vote on every single page of a multi-page ballot and the actual ballot listed all of the presidential candidates over two pages and asked the voter to vote on all appropriate pages. The difference confused many voters who voted every page as instructed by the sample ballot which explains the double vote or "overvote" for president which occurred on the actual ballot - even the Republican supervisor admitted that he believes that voters were confused by the different lay out and instructions.

Furthermore, the difference in ballots appears to violate a state law that mandates that the sample ballot and actual ballot be the same.

In light of all of this and the fact that the Gore legal team and the Democratic National Committee (DNC) are aware of what happened in Duval county, we have wondered why Black leaders have not raised an uproar over the fact that the Gore legal team has not included Duval county or the plentiful overvotes in its legal arguments and request for recounts.

All of our inquiries to Black members of Congress and our discussions with representatives of Black civil rights organizations have revealed that Black leaders have privately asked Gore to address the matter and have subsequently been ignored. To the best of our knowledge, while Black civil rights organizations have publicly raised the matter with the Justice Department (DOJ) as the matter relates to DOJ's jurisdiction, none have had the courage to publicly demand that Gore explain why he has left the overvotes and Duval County out of his legal case and election result challenges.

Yesterday we wrote of how dismissive Gore super lawyer, David Boies, was of the overvote issue, over the weekend, when it was presented to him by Meet The Press moderator, Tim Russert. And yesterday Boise demonstrated the same callous and non-chalant attitude toward the issue when it was brought up by The Supreme Court.

Here is the exchange pertaining to overvotes that took place yesterday in the US Supreme Court. The excerpt is followed by our brief comments:

REHNQUIST: So, if you disagree that 177,000 ballots will be involved in this recount, how many do you think there are?

BOIES: It's approximately 60,000, I think, Your Honor. It turns out to be less than that because of the recounts that have already been completed.

BOIES: But I think the total sort of blank ballots for the presidency were about 60,000.

KENNEDY: Mr. Boies, can I ask you this? Does that mean there are 110,000 overvotes?

BOIES: That's right.

KENNEDY: And if that's the case, what is your response to the chief justice of Florida's concern that the recount relates only to undervotes and not overvotes?

BOIES: First, nobody asked for a contest of the overvotes. And the contest statute begins with a party saying that there is either a rejection of legal votes or an acceptance of illegal votes.

KENNEDY: But as a matter of remedy, it's ordered a statewide recount in counties where the ballots were not contested. And that's where I'm having some difficulty. And it goes back in part to your answer that you gave to Justice Scalia about Broward County, and in part to the answer you're giving to Justice Stevens now. Why is it that you say on the one hand to Justice Scalia, "Oh, well, these weren't part of the contest"? But now, all of a sudden, we're talking about statewide, that are not all of which were contested, but we're not talking about the overvotes?

BOIES: Two parts to the answer.

BOIES: The reason that I said what I did to Justice Scalia was that I think that if this court were to rule that there was something wrong with the statewide recounts, that they were being done by canvassing boards as opposed to directly by the court, or because the court was not supervising the particular expression of voter intent, what the court would have done is simply cut back on a remedy that we didn't ask for. The second part is that when you're dealing with overvotes-and remember, this is a machine issue-when you're dealing with overvotes, the machine has already registered two votes. Now, there may be another vote there-a dimpled vote or indented vote-that the machine did not register, but once you get two votes, that ballot doesn't get counted for the presidency.

BREYER: They gave an example. The example they gave in their brief was, there's a punch for Governor Bush and then there's a punch for "write-in" and the write-in says, "I want Governor Bush."

BREYER: And so I think their implication is that that would have been rejected by the machine, but if you looked at it by hand, the intent of the voter would be clear. I don't know if there are such votes, but they say there might be.

BOIES: There's nothing in the record that suggests there are such votes. If anybody had contested the overvotes, it would have been a relatively simple process to test that, because you could have simply tested as to whether the double vote was a write-in vote or was another candidate.

REHNQUIST: I gathered from the opinion of the Supreme Court of Florida that the vice president did not ask for as broad a recount as the Supreme Court granted, but that it thought that to do just what he wanted would be unfair, and therefore out of fairness they granted the wider recount. Am I correct in this?

BOIES: I think that's right. I think that's how I would interpret it, Mr. Chief Justice.

Boies' attitude toward the issue should generate as much anger and protest from Black leaders as any other issue or behavior during this post-election controversy. Boies' comments are dishonest and full of half-truths. First of all, there was no original contest as Boies states because, according to Florida Democrats, Republicans mislead them about the number of overvotes for over three days, causing the 72-hour deadline to offer a preliminary contest of the results to expire.

The Democrats allege that in front of witnesses, a Republican election official in Duval County said that the number of overvotes only numbered in the hundreds. That alleged deception, if proven true, in and of itself is misconduct and fraud that justifies a recount.

It is this type of conduct that Leon County Court Judge N. Sanders Sauls ruled the Gore campaign had not demonstrated in its earlier request for a recount. The Sauls' ruling was the clearest example available that indicates that had Gore included Duval County in his case he stood a very good chance of winning.

And as we wrote last week, even if the 72-hour deadline passed, the Gore campaign still could have contested the results under a liberal aspect of Florida law that allows for such action. In addition, Congressional Black Caucus member Rep. Corrine Brown (D-Florida) and Rev. Jesse Jackson's Rainbow/Push have filed a lawsuit seeking a recount over what has happened.

The Gore legal team could have included the findings and argument made by Rep. Brown and Rainbow/Push in its own case and asked that the overvotes be included in the recount.

Sources have informed BlackElectorate.com that not only is the Gore team very much aware of the legal suit filed by Rep. Brown but that Democratic Party lawyers helped Rep. Brown and Rainbow/Push prepare the case

So, David Boies' answer to Justice Kennedy's question is disingenuous at the very least. Boies is not being truthful when he says that nobody asked for a contest of the votes. We say this in light of how Boies, himself explains how a contest begins. He told Justice Kennedy "And the contest statute begins with a party saying that there is either a rejection of legal votes or an acceptance of illegal votes."

The case brought by Rep. Brown is saying exactly what Boise claims never happened. Rep. Brown's lawsuit is saying that there was a clear "rejection of legal votes".

The Democrats have been aware of this for over three weeks and could have weaved Duval County into their arguments.

And Justice Kennedy very appropriately wondered why the Gore team wouldn't have wanted overvotes included in the unilateral decision made by the Florida Supreme Court on December 8 to have undervotes counted statewide.

Boies' answer to this point is that since the machine records two votes, the vote is thrown out. He goes no further! He simply explains how an overvote occurs and implies his satisfaction with the fact that it isn't "registered" as a vote by the machine.

Immediately after Boies' answer to Justice Kennedy's question, Justice Breyer weighs in with an explanation of how it would be possible to determine the voter intent of an overvote. He gives the example of a write-in ballot where as Justice Breyer puts it, "if you looked at it by hand, the intent of the voter would be clear".

To this Boies responds that he is not aware of any such examples but if they occurred they would be easy to test as Justice Breyer suggests.

Again, Boies' comments don't reflect the fact that in Duval County overvotes did occur, were possibly inspired by a violation of state law, and were eventually challenged, not to mention the fact that there is almost certain that among the 100,000 overvotes statewide some would fit the example that Justice Breyer offered to Boise.

For Black leaders, including Rev. Jesse Jackson, to make this Supreme Court decision about undervotes, Gov. Bush's possible victory and even Justice Clarence Thomas, is irresponsible leadership and we dare say gross negligence toward the legitimate aspirations of the Black electorate.

Furthermore, it is sad and disappointing that it took three Supreme Court judges, in a court that Black leaders spare no lengths to demonize, to publicly do the job that Black leaders should be doing on their own.

Cedric Muhammad

Tuesday, December 12, 2000

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The views and opinions expressed herein by the author do not necessarily represent the opinions or position of BlackElectorate.com or Black Electorate Communications.