Florida 2000 and Washington 2004

Provide technical assistance to the supervisors of elections on voter education and election personnel training services:   Provide all needed technical support and training necessary to guarantee efficient polling places and properly trained workers.

Provide voter education assistance to the public:   Ensure that voters have ready access to all the information and help they may need to properly cast their votes.

It's difficult to see this list adds up to zero responsible for the integrity of elections. It is true that county supervisors are responsible for the selection and use of voting systems, vote counts, and the efficient operation of polling places. But the Secretary of State is responsible for guaranteeing that counties have everything they need to meet these objectives, and for making sure they've been successfully achieved.

Presumably, this also includes making things right if they haven't, in which case Katherine Harris and her defenders have some explaining to do. Right from Election Day there was evidence of widespread polling place irregularities and ballot spoilage and evidence that many of those spoiled ballots gave clear indications of voter intent. This information was well documented and easily available. Any serious professional charged with fulfilling the duties described above--with protecting the constitutional rights of Florida's voters--would have examined this evidence and taken steps to restore as many of those votes as was practical.

Not only was this not done, Harris actively fought to prevent it from happening using every resource available to her, and offered ongoing assistance to the Bush Campaign to help them achieve the same goal. A well regulated manual recount with bipartisan oversight would have revealed voter intent for a great many of those votes and allowed for their restoration--a fact that has clear historical and legal precedents (Cohen, 2000). Throughout the election's legal contests and ever since, it's been argued that this was not possible due to a lack of uniform county level standards for determining voter intent from hand examination of ballots. This ignores the fact that responsibility for such standards lies well within the legislated obligations of the Secretary of State's office just described;

Obtain and maintain uniformity in the application, operation, and interpretation of the election laws.

Harris had the power and the obligation to set up a statewide manual recount under strictly regulated conditions with bipartisan input and oversight, and to see that it was properly carried out--which is precisely what the final U.S. Supreme Court ruling stated as a requirement of further recount efforts. Had this process been initiated when widespread ballot problems were first discovered there would have been more than enough time to make this happen—or for anyone who truly cared about voter disenfranchisement to at least explore the possibilities. Even if such a recount proved impractical, a serious effort in that direction on Harris' part would have demonstrated a commitment to the duties of her office and the rights of all voters under her trust. To date, I have yet to find one documented instance where Harris or anyone associated with the Bush Campaign made any suggestion that this might even be worthwhile, much less made any effort in that direction. Every activity I could verify from publicly available records and information outlets was directed at shutting down all recount efforts regardless of the conditions under which they might occur.

On January 12, 2001 Harris and Governor Jeb Bush both testified before the USCCR. Their statements were revealing. Bush told the committee that he had "no real legal authority over election matters" except for certifying the election and serving as a member of the State Canvassing Board, from which he had recused himself given that his brother was a presidential candidate. The Committee inquired what authority and responsibility he had regarding preparation for the 2000 presidential election, to which he replied that he had none. "The secretary of state and the 67 supervisors of elections were responsible for that" he said, "and they carried out their duties" (Bush, 2001, my emphasis).

But when Harris testified she repeatedly denied having these responsibilities (Harris, 2001; Lantigua, 2001b; Lindsey, 2001). She stated that her authority over the election process was strictly "ministerial" and that she had no real authority for leadership or enforcement in election matters.

"[W]e attempt to achieve uniformity in the interpretation of the election code, but we are without authority to direct the conduct of county supervisors of elections."

(Harris, 2001)

When challenged on this she immediately deferred to FDE Director Clay Roberts who was also present and to whom she stated she had delegated those responsibilities. Roberts replied that,

"Nowhere in the statutes does it provide the Secretary of State with the ability to apply additional rules. We cannot engage in rulemaking without the authority to make the rule. We were without authority."

(Lantigua, 2001b)

In fact, the statutes clearly state that they did have that authority, particularly in regard to voting technology oversight, the Central Voter File, and availability of training and needed resources for poll workers (FL. Stat., 2000, Ch. 97.012), and per the Florida State Constitution the governor's was responsible for ensuring that all state and federal laws regarding elections were executed (FL. State Const., Art. 4, Sect. 1a).

It's ironic that Harris went to such lengths to pass responsibility for oversight of the election before the USCCR. During the Bush vs. Gore Harris and legal counsel for Bush and Cheney argued emphatically that she did have that authority. They argued that the Secretary of State's office and the FDE were "charged with interpreting and enforcing the Florida Election Code" (Bush vs. Gore, No. 00-949, Brief of the Secretary of State). In their final decision the court also emphasized that the Secretary of State and the FDE had this authority stating that,

"Importantly, the legislature has delegated the authority to run the elections and to oversee election disputes to the Secretary of State (Secretary), Fla. Stat. Ch. 97.012(1) (2000), and to state circuit courts, Chs. 102.168(1), 102.168(8). Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies."

(Bush vs. Gore, 531 U.S._2000)

In December of 2000 when she wanted the authority to stop manual recounts Harris stridently insisted that she alone had authority over elections policy and her decisions on this matter should stand. The U.S. Supreme Court agreed. Less than 4 weeks later she argued before the USCCR that she had no such responsibility. They of course, were more than a little curious as to how she could hold so much power in November 2000 when she wanted to block manual recounts, yet conveniently lose all of it prior to the discovery of widespread ballot spoilage and felon list problems. Needless to say, they did not find her answers to be very convincing.

Thernstrom and Redenbaugh argued that there was no conflict because authority over vote counting procedures has nothing to do with running an election. According to them,

"Governor Bush has virtually no authority over the voting process, and the Secretary of State’s role is mainly to provide non-binding advice to local officials."

(Thernstrom & Redenbaugh, 2001)

This is flatly contradicted by the Florida statutes listed above which clearly state that Harris' office was responsible for maintaining uniformity in the application, operation, and interpretation of all election laws, for certifying all voting systems, and for providing any and all technical resources and training necessary to insure their proper implementation. In the very least, she was responsible for doing whatever could be done to retrieve as many lost votes as possible--not to do everything within her power to prevent this. Thernstrom and Redenbaugh did not reference any particular statutes for their claims and were unable to come up with a compelling explanation for any of this.

Harris wasn't able to either. By September 2002 settlement agreements were reached in NAACP vs. Harris, S.D. Florida in favor of the plaintiffs including the NAACP and numerous Florida voters. Harris continued to deny all responsibility right to the end, but was compelled to settle by an increasingly weak case and the prospect of unacceptable further litigation. Previous settlements had already been reached in the plaintiffs' favor with every other defendant including the Florida State's Highway Safety and Motor Vehicles and Children and Families Departments, seven other counties, and Choicepoint. Choicepoint, who from the start had complained of being ordered by Harris and the FDE to relax their felon identification standards even after having informed them of the false-positive consequences, agreed to donate $75,000 to the NAACP as part of their settlement which will be used to fund past and future efforts to further the electoral opportunities of Florida's minority voters. They also agreed to re-process their 1999 and 2000 felon lists. As a result of their troubles with Harris and the FDE, they announced shortly thereafter that they were getting out of the business of state felon lists for good. In the aftermath of November 2000 governor Jeb Bush appointed a bipartisan committee to investigate how Florida's electoral system could be reformed, which led eventually to the Florida Election Reform Act of 2001 (GSTF/CCPP, 2001). It's noteworthy that most of the real work done by this committee happened after the USCCR began their investigation and the NAACP had filed their post-election lawsuit, and many of the more important reforms had originally been proposed in the USCCR report or were part of the settlements in the NAACP lawsuit (NAACP, 2001; NAACP vs. Harris, 2001; LCCRUL, 2002). Note that these reforms were carried out by the Florida State Legislature per the recommendations of a select committee appointed by Governor Jeb Bush, and implemented under his authority and that of Secretary of State Katherine Harris--not county supervisors.

Had all this been done before fall of 2000 over 12,000 voters who were wrongly listed as felons would not have been (Smith, 2003). Over two-thirds were Democrats. Of these at least 1,100 were actually denied their vote on Election Day according to the Palm Beach Post study discussed earlier which was based on flawed FDLE records and is therefore likely to be low if anything (Hiaasen et al., 2001). Even if no more wrongful felon listings were ever proven, this would have given more than enough votes to Al Gore relative to Bush to give him the presidency.

If there is one recurring theme in all of this it's accountability. From the beginning the USCCR report focused mainly on identifying the problems with the election process and getting them resolved. It was to this end only that responsibility for them was addressed. The report did hold county supervisors, Katherine Harris, the FDE, and Jeb Bush responsible in varying degrees, but devoted most of its content to discussing what went wrong and why. Throughout, it made numerous specific recommendations for improvements. When the NAACP filed their lawsuit in January 2001 they sought specific reforms to Florida's electoral process, not monetary damages. They requested an overhaul of the voter registration process, Felon List and Central Voter Files, correction of all wrongful felon listings, and more (NAACP, 2001; NAACP vs. Harris, 2001). It's noteworthy that in over 200 pages of content, the USCCR report does not contain even one partisan statement. Free text searches of the document reveal no instances of "Republican" or "Democrat" other than purely informational statements regarding demographics or governmental organization (USCCR, 2001). Searches of legal documents pertinent to NAACP vs. Harris for these terms also come up empty (NAACP vs. Harris, 2001; NAACP vs. Harris, 2002).

By contrast, similar searches of Thernstrom and Redenbaugh's dissent and other articles by defenders of Harris and the Bush campaign yield numerous instances of both terms, virtually every one of which appears in the context of redirecting blame for Florida 2000 to wronged voters and Democrats, or to outright ad-hominem. Joe Kerry (2004) is typical of most when he says,

"In all but one of the 25 counties with the highest ballot spoilage rates, the election was supervised by a Democrat-the one exception being an official with no party affiliation. In fact, most of the authority over elections in Florida resides with officials in the state's 67 counties, and all of those with the highest rates of voter error were under Democratic control. Of the 25 Florida counties with the highest rate of vote spoilage, in how many was the election supervised by a Republican? The answer is zero. All but one of the 25 had Democratic chief election officers, and the one exception was in the hands of an official with no party affiliation."

(Kerry, 2004)

Nowhere did Kerry attempt to delineate these responsibilities or those of Katherine Harris' office. Nor was there any discussion of what might be done differently next time. He then informs us that,