An investigation by Democrats.com has revealed that hundreds - possibly thousands - of Florida votes for Al Gore and George W. Bush were never counted because marks in the "write-in" section of the ballot caused these ballots to be incorrectly treated as "overvotes."

These were not questionable ballots rejected at the legal discretion of county canvassing boards because they could not identify the "intent of the voter." These ballots had nothing to do with dimpled chads.

Rather, these were legally valid votes that were rejected because a machine spotted both a vote for a listed candidate and a mark in the "write-in" section. The machines wrongly interpreted such votes as invalid overvotes - and elections officials illegally failed to correct the machines' mistakes.

Such votes were illegally excluded from the certified totals of at least eight counties in Florida, notably Lake and Duval counties. Florida Secretary of State Katherine Harris certified more than 28,000 overvotes from counties that violated Florida law by ignoring such votes.

Had these votes been properly counted, Al Gore may well have been declared the winner in Florida.

FLORIDA LAW AND LEGAL VOTES

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

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.

FS 101.5614 (4) demands that every ballot that has a potential write-in vote must be examined by a human being, and that the ballots have to 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.

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.

Any questions that arise regarding the proper interpretation of the statutes are answered elsewhere in the statutes, and in the Florida Administrative Code, which provide precise instructions on what is to be done with ballots containing write-in votes.

• The voter does not have to fill in the oval or punch out the chad to cast a write-in vote, only write in the candidate's name.
• A write-in vote is counted only if the person whose name is written in registered as a write-in candidate.
• Write-ins for other people than qualified candidates are ignored: for example, if someone wrote in "Mickey Mouse," or if someone marked/punched the write-in hole but wrote no name. If the voter marked a listed candidate and wrote in a name other than that of a qualified candidate, the write-in vote is ignored and the vote for the listed candidate is counted. [FAC 1S-20031 (5) (6) (7)] (1)

Under Florida law, a ballot with both a mark by a candidate's name and a write-in vote is an overvote (and therefore not counted) only if the person written in is a "qualified write-in candidate" as defined in the Florida Administrative Code. But a candidate who is listed on the ballot cannot also be a "qualified write-in candidate" for the same office. [Florida Statutes 99.061 (4)(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.

In other words, if a voter marks a candidate listed on the ballot and also writes the same candidates name in the "write-in candidate" space, it is not an overvote. The write-in vote is voided, but the vote marked on the candidate's name is still valid.

Florida county elections officials have some discretion in deciding during the initial canvas of returns 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 it was not within their discretion to reject the vote of someone who both marked Bush in the list of candidates' and wrote in Bush's name.

That's the law. It was violated in Lake County. And every bit of evidence suggests that it was violated in Duval County. The disappearance of 81 votes that were identified by the machine as write-in votes shows that no one did what they were required to do: look at every ballot that had a possible write-in vote, and count the write-in votes.

As it happens, valid write-in votes were also mishandled. County officials, with the apparent collusion of state officials, "disappeared" hundreds of write-in votes which were identified during the machine count but which never showed up on the state certified totals.

WHAT HAPPENED IN LAKE COUNTY?

The Orlando Sentinel examined Lake County's ballots that the counting machines rejected as overvotes, and published their findings on December 9. Lake County omitted at least 622 legal votes from its certified total. Although George Bush won Lake County, Al Gore got 130 more of these uncounted votes than George Bush (376 to 246). (2)

Every one of the 622 ballots not counted in Lake County 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 election 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 went ahead and 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.

WHAT HAPPENED IN DUVAL COUNTY?

Possibly the most significant county is Duval, where a horrendously designed two-page ballot resulted in 21,942 certified overvotes, and where 81 write-in votes simply disappeared. According to the county's own web site, on November 9 those write-in votes were part of the county's certified total. On November 24, the certified totals are identical to the November 9 totals for Bush, Gore, and undervotes - but zero write-in votes are certified. Those votes just ceased to exist.

Unlike many counties that use punch-card ballots, the Duval County ballot allowed people to punch a hole next to the write-in space. On the second page of the ballot, next to a hole waiting to be punched, appeared the words "Write-In Candidate." Unlike the vast majority of Florida counties, Duval County did not include legally mandated [FAC 1S-20031 (4)] (3) instructions to the voter on their ballot. Those instructions should have told voters where to write the name for a write-in vote.

On the Duval County ballot, the list of presidential candidates extended across two pages. The sample ballots included incorrect instructions to vote on every page - without making an exception for the split list. An inexperienced vote might, therefore, satisfy the instructions by marking a candidate's name on page 1 plus writing in that candidate's name on page 2.

Duval County was the site of a strong effort by the NAACP and other groups to register new voters and get them to the polls. It is very likely that more than a few of the 21,942 "overvotes" are actually ballots on which people punched out a chad for a listed candidate, turned the page, and punched out the chad for "Write-In Candidate," either writing in the candidate marked on page 1 or leaving the write-in space blank. This is such a common mistake that the law specifically states such votes are to be counted.

Because Duval County never bothered to do the legal recount, and because the Duval Board of Elections has refused to allow anyone to see its ballots, we have no idea how many of the 21,942 ballots rejected as overvotes were actually valid votes (as in Lake County); nor do we know which candidates got those legal votes. We do know, however, that there is a direct correlation between the number of votes for Al Gore and percentage of overvotes. The higher the percentage of votes for Gore in a precinct, the higher the percentage of overvoted ballots. Precincts that went for George W. Bush by a wide margin had very few overvotes. In the precinct that went most heavily for Gore, about 1 out of every 5 ballots was overvoted.

The Supervisor of Elections for Duval County, John Stafford, is no novice. By profession, he is a computer programmer. 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. There is simply no way John Stafford did not know that a ballot that encouraged people to punch a hole next to the words "Write-in Candidate" (it even had an arrow pointing to the hole!) would increase the risk of overvoting.

As both a computer programmer and veteran elections official, he had to know 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. Having worked in the Division of Elections for more than a decade, Stafford also had to have known the law concerning write-in votes and overvotes.

In this election, the uncounted ballots would have made the difference. All the evidence suggests that John Stafford knew they would have made the difference, and he let those legal votes go uncounted. The certified vote total in Duval County was fraudulent, and deliberately so.

WHO REALLY WON FLORIDA?

Duval and Lake Counties are not the only places where this "error" happened. In at least five other counties, write-in votes were recorded by the tabulating equipment, but the state-certified total does not list any votes for a write-in candidate. These counties also recorded thousands of overvotes, and those machine-identified overvotes doubtless include legal votes that were never counted.

Duval, however, is a special case. Fully 20 percent of the overvotes recorded statewide occurred in that single county. It is very likely that if Duval County elections officials had not violated the law when they counted their votes, Al Gore would have won Florida, and the Presidency.

The election was stolen by Republican officials in Republican-controlled counties. They may have been directed by Republican state officials, or state officials may have just turned their backs on the problem. But the state officials are ultimately responsible for ensuring that Florida election laws are followed, and they must be held accountable for the violations of the law. Footnotes:

1. Florida Administrative Code 1S-20031 (5) An otherwise valid vote cast for a write-in candidate should not be invalid if the voting position on the ballot card marked "WRITE-IN CANDIDATE" for that office has not been punched by the marking device.

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.

Florida Administrative Code 1S-20031(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.

2. Orlando Sentinel, 12/19/2000; Gore would have gained votes in Lake; David Damron, Ramsey Campbell and Roger Roy. http://democrats.com/view.cfm?id=835

3 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]