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Disputed ballots held potential gains for Gore
By Joel Engelhardt, Scott McCabe and Christine Stapleton, Palm Beach Post Staff Writers
Saturday, January 27, 2001

WEST PALM BEACH -- If Democrats had gotten their way and dimpled ballots in Palm Beach County had been counted as votes, Al Gore would have picked up 682 votes, which is more than President George W. Bush's 537-vote statewide margin of victory, according toThe Palm Beach Post's examination of disputed ballots.

Additionally, the analysis shows that more than two-thirds of the disputed ballots were cast on Data Punch voting machines even though those machines accounted for less than one-third of the 462,644 ballots cast in the county.

Democrats said the numbers justify their belief that Al Gore should have won Florida. Republicans scoff, saying the U.S. Supreme Court made it clear that the disputed, dimpled ballots should not count.

Of the 14,500 ballots that the Palm Beach County Canvassing Board examined in November, the 4,513 under-votes reviewed this month by The Post are the ones where the board decided no vote had been cast but Democratic or GOP observers disagreed. The board set those ballots aside for possible court review, but no court did, from the circuit level in Tallahassee to the U.S. Supreme Court in Washington.

Of the disputed ballots, 2,500 had marks -- some faint, some heavy, some with holes but most without -- for Gore. Those with similar marks for Bush numbered 1,818.

That 682-vote gain for Gore would have been in addition to his 174-vote gain found during Palm Beach County's 10-day hand recount. Those results, submitted after the 5 p.m. Nov. 26 deadline, were not accepted by Florida's secretary of state in the certified 537-vote Bush victory.

The Post also found that the precincts with the most disputed under-votes were not those with a majority of black or elderly voters. They were not particularly Democrat or Republican. But they were overwhelmingly Data Punch.

Of the disputed under-votes cast at polling places (as opposed to those cast by absentee voters), 67.8 percent were cast on the Data Punch machines, which are newer and less costly than the county's other type of punch-card voting machine, the Votomatic.

While Republicans argued that many voters may have touched the ballot with the stylus, leaving a dimple, before deciding not to vote for president, mechanical engineering tests commissioned by The Post this month found that it's slightly harder to punch out a chad in a Data Punch machine.

Supervisor of Elections Theresa LePore, a canvassing board member, said she has not yet had time to study the error-rate in Data Punch machines. However, she said, "There appears to be some kind of a problem with ballots in those machines."

She said she would not use Data Punch machines in the March 13 municipal elections, and unless the ballot is crowded, voters would not be asked to punch the first column, in which the presidential votes were cast. She said those decisions were not colored by the machine's record during the presidential election.

County Court Judge Charles Burton, another canvassing board member, said he saw more dimples in the first column than elsewhere on the ballot among the 14,500 ballots he reviewed. Democrats argued in court that the mechanics of the machine, combined with the heavy use of the first column, made it harder to punch out a chad there.

The Post's tests of machines, conducted by a Florida Atlantic University mechanical engineering professor, found chads dislodge more easily from the center of the ballot than they do along the top, bottom and sides.

Nearly 44 percent of the registered voters in the Data Punch precincts that produced disputed ballots are Democrats and about 36 percent are Republican. Most are white -- 90.2 percent. And less than half -- 40.2 percent -- are older than 64.

While about half of the under-votes and over-votes cast in Palm Beach County came from precincts that are majority elderly or black, only two of the 10 precincts with the most disputed ballots are majority elderly and none is majority black.

LePore questioned the validity of the ballot review, for which she is charging $125 an hour. Aside from The Post, reviews are being conducted by The Miami Herald, the Republican Party of Florida and Judicial Watch, a conservative governmental watchdog group.

She said she doubted any true count can be accomplished without examining all ballots cast on Election Day "because you don't know what the machine counted for those."

LePore directed the hand recount of those ballots in November, and none of the media groups plans to review all of them again.

Additionally, every group is applying its own criteria and its employees exhibit various levels of interest, LePore said.

"You got different people looking at different criteria there," said LePore. "They're not writing down the same thing. Some are not even looking at the cards. They're yawning, talking on cell phones. I think it's unfair to put out any numbers that are inaccurate."

Additional reviews are planned or under way throughout the state. A consortium that includes The Post, The Wall Street Journal and The New York Times will soon begin looking at the under-votes and over-votes in all of Florida's 67 counties.

The Miami Herald and USA Today are conducting a similar review.

The media results are almost certain to differ because of varying judgments by reviewers and human error. Furthermore, experts say no count -- whether by hand or machine -- will ever be 100 percent certain. Computer industry consultants estimate the error rate for counting punch cards could run as high as 1 percent and varies with the number of times the cards are handled.

Palm Beach County's ballots underwent three machine recounts, one hand recount and a sample hand recount of four precincts. The results varied every time.

During the hand recount, the canvassing board converted about 1,000 under-votes into votes, most of them for Bush or Gore. That left 9,251 under-votes. The Palm Beach Post is continuing to review the remaining 4,600 under-votes as well as the 19,235 over-votes -- ballots in which votes were cast for more than one presidential candidate.

In the 37-day election contest of Florida election results, Gore had hoped to find a mother lode of votes in heavily Democratic South Florida to overtake Bush. A manual recount in Broward County added 567 votes for Gore.

The Palm Beach County hand count, if it had been done on time, would have added another 174 for Gore.

Democratic efforts to get a hand recount in Miami-Dade County were stymied. The Post's review of under-votes there, also completed this month, showed a net gain of six votes for Bush if all the dimpled ballots had been counted. While Miami-Dade recorded 10,600 under-votes, few were caused by dimpled ballots. The Post recorded just 350 dimpled ballots and another 87 with hanging, or partially dislodged, chad.

Just a week after Bush took the oath of office, The Post's findings caused consternation in Republican circles.

The disputed ballots carried a heavy Democratic tilt, because Republicans initially did not object when dimples for Bush were ruled as under-votes, said Mark Wallace, a Miami lawyer who observed the Palm Beach County recount for Bush.

Since Republicans argued dimples shouldn't count they believed it would be hypocritical to object, Wallace explained. Ultimately, they chided the Democrats as they objected.

"We were objecting under the Democratic Dimple Principle, the DDP," Wallace said. "That is the basis of law that they were trying to count dimples. We thought it was important to at least preserve our objections under the inappropriate understanding of the law."

Republicans say there's a simple reason why dimpled ballots didn't count: They weren't legal. Chief Justice William Rehnquist's opinion, joined by Justices Antonin Scalia and Clarence Thomas, points out that voters must follow directions, GOP spokesman Ken Lisaius said.

"To somehow suggest that a ballot that is dimpled provides us some sort of intent into a voter's mind is ridiculous," Lisaius said.

But Dennis Newman, a Boston lawyer for the Gore campaign, said counting all dimples is the only standard that could be applied across all counties to provide "equal protection" as demanded by the U.S. Supreme Court.

Newman also disputed GOP claims they didn't object initially. He said he examined the early precincts and found several Republican objections.

"We have always said if all the votes were counted, Al Gore wins the presidency. That's all we were fighting for in Florida," said Joe Andrew, chairman of the Democratic National Committee. "The important part here is that George Bush is claiming he has a mandate. It is a false mandate."

The U.S. Supreme Court did not say in its two Dec. 12 majority opinions what standard to use, and those opinions do not explicitly say dimpled ballots should or should not count.

In Palm Beach County, neither the Republicans' clear-punch standard nor the Democrats' all-dimple standard held sway.

The county canvassing board counted hundreds of dimpled ballots as votes. Usually, but not always, those ballots had dimpled marks in other races, helping the board divine the voter's intent by judging "the totality of the ballot."

However, in about 10 percent of the disputed under-votes, dimples appeared elsewhere on the ballot and the canvassing board still decided not to count the mark for president as a vote.

Many of those ballots were marked for more than one presidential candidate, Burton said. The Post review found 41 ballots, or less than 1 percent of the disputed ballots, with dimples for Gore or Bush and at least one other presidential candidate. About one-fourth of those had dimples elsewhere on the ballot.

Such issues complicated the count, Burton said. For instance, if dimples counted, then ballots with dimples for two or more presidential candidates would have registered as over-votes. The Post did not include those 41 ballots in its totals for Bush and Gore.

Additionally, if all dimples counted, clearly punched cards for Bush or Gore accompanied by a dimple for another candidate would also have to be recharacterized as over-votes, Burton said. No media organization plans to review all the ballots, so it's unclear whether such cards were counted as votes.

The Post also judged 144 disputed ballots to be blank even though Republicans or Democrats argued that the ballots contained a vote. The Post found seven fewer under-votes marked for Bush and 190 fewer for Gore than recorded by Democratic observers during the recount.

While Republicans said all recounts are unnecessary, especially the media's, Democrats welcomed the review, saying they have wanted the public to see these ballots all along.

"It's not just an academic exercise," Democratic spokesman Rick Hess said. "It's important to know what voters said."