Florida 2000 and Washington 2004

Washington's fall 2004 gubernatorial election was among the state's more contentious races. While no election is ever completely free of partisan politics, Rossi and Gregoire both ran their campaigns with tact and professionalism while runoffs for other state offices were not. But tensions her high among supporters on both sides, reaching a fever pitch as Election Day approached and projected margins shrank. When Gregoire gained her manual recount, many Washington conservatives were angered that Democrats who had controlled the office for over two decades were unwilling to simply accept the victory and let them have their turn with the state's leadership. Even then many accused Washington's Democrats of trying to stack the election in their favor unfairly. Former Washington governor Dan Evans (R) echoed the sentiments of many when he stated that,

"We are getting to the point where apparently the Gregoire campaign wants to pick and choose the areas where they count. They are not interested in an accurate count; they are interested in some combination of circumstances that might put their candidate ahead, that's all.... We've had two counts. Sure, it's close. (Gregoire) likes to call it a tie--but that's like someone at the end of a marathon who loses by two steps saying, 'Oh, it's a tie.' They'd get laughed out of town. There's about 50,000 steps in a marathon, and Dino's about two strides ahead. That's plenty, that's about a stride more than you need."

(McGann, 2004)

But Gregoire's manual recount petition was well within state law leaving the Rossi Campaign and the WSRP powerless to block it. When the decision was reversed with a margin over three times as large as Rossi's final margin the tone and substance of the debate changed. With language all too familiar to those who haven't forgotten Florida 2000 accusations of fraud and negligence filled online forums and press releases. One WSRP email forwarded to me early last January angrily declared that "avaricious imposters" had stolen the election and the very fabric of the Constitution itself was in danger. In a late December press release WSRP Chairman Chris Vance said that under normal circumstances, Republicans and Democrats alike have a responsibility to be "good stewards to the process". The loser should be prepared to accept the result and move on, "no matter how small the margin" (Seattle PI, 12/28/2004). "But these were not normal circumstances", Vance said. Pointed to a number of potential issues with the manual recount process he stated that,

"At [this] point, I think you have an affirmative duty to raise those questions because if we don't, no one else will. It is up to the combatants, the participants in this process, to hold the system accountable."

(McGann, 2004b)

So much for "two strides" being plenty! Even so, Vance was right. There were

For their part, Democrats countered with their own list from predominately Republican counties. Many of these felons were later found either to have been erroneously listed or granted clemency and restored voting rights. In May of 2005 the WSRP and the Rossi campaign filed suit in Chelan County Superior Court to have the election overturned. By the May 2005 trial date the total combined felon voter list had settled to 1,391 votes though not all listings had been verified and many of those listed were still in court challenging their status. At least 199 erroneous listings had been removed (Roberts, 2005e; Seattle Times, 2005; 2005b). The WSRP claimed that with provisional and absentee ballots included nearly 2000 ballots were in question, but a total of only 1,678 had been verified including the 1,391 felon votes still on record (Roberts, 2005e; Seattle Times, 2005; 2005b). In all, when combined with the best available estimates of technology errors associated with the counting process (more on this shortly) this falls well within the range typical gubernatorial elections. To date, not one single instance of intentional negligence or fraud has been documented from the Washington 2004 election.

The WSRP initially based their election challenge based on the claim that removing felon votes from certified county tallies in proportion to each candidate's proportion of the vote there would give Rossi the lead. An expert witness was hired to do the calculations and defend the claim in court testimony. But regardless of how the math works out, this method is based on questionable demographics. It is well known that voting patterns are strongly tied to regional, racial, and socio-economic factors. Rural areas tend to vote Republican, urban ones Democrat; laborers and African Americans vote Democrat, business owners and whites Republican; and so on. The WSRP vote proportioning approach assumes that a sub-sample of felons from any given county--including those with widely disparate regional differences like King County--will accurately reflect the voting demographics of the larger population. There is no evidence to support this claim and in fact, the Florida 2000 felon list reflected demographics that differed considerably from the larger state population (FDOC, 2001; USCCR, 2001; Kissell, 2002; Stuart, 2004). It also appears that the WSRP analysis was based mainly on their version of the list. Before the trial had ended the Seattle Times announced the results of a study they had done of the original felon list of 1,740 names using the WSRP proportioning method. The Times found that unless the error rate of the combined list reached 74 percent, Gregoire would retain her victory (Seattle Times, 2005; 2005b). Their investigation revealed that the actual rate is likely to be closer to 11 percent. Chris Vance made no attempt to challenge the study. "I'm not disputing the factual things that you've found, but you've got to place it in the context of the case," Vance said. "The felons are just one aspect of the case" (Seattle Times, 2005).

But unfortunately for Vance and Rossi, this was the strongest claim they had. The rest of their case boiled down to a mere 287 problem votes--a figure well below even the most optimistic estimates of the unintentional residual vote rate (Roberts, 2005e; WA Sec. of State, 2005; Ansolabehere & Stewart, 2005; Caltech/MIT, 2001). Not one documented instance of intentional neglect or fraud was ever presented. On the morning of June 6, 2005, Chelan County Superior Court judge John Bridges issued his decision upholding the certified Gregoire victory. Bridges cited the poor methodology the WSRP had based their data gathering and analyses on and their lack of tangible evidence. The decision was even more noteworthy in that it was issued by a Superior Court based in one of Washington's most conservative counties (Rossi and the WSRP filed suit in Chelan largely in the hope of gaining a sympathetic ear).

After the decision Rossi chose not to appeal to Washington's Supreme Court, citing the need to move forward and not burden the state or his supporters with further expense and distractions from state leadership. It should be noted that here, and throughout a contentious and costly battle he displayed graciousness and leadership. Having made his case to the best of his abilities, he put the interests of the state ahead of his own when the contest did not end in his favor. In so doing he ran his campaign in an exemplary manner despite high passions among his followers and those of his opponent. All too often in disputes like these this is not the case and it’s to the credit of both candidates that they avoided the rancorousness that others indulged in.

The Florida 2000 Presidential Race

The year 200 presidential election in Florida was strikingly similar, right down to the victory margin as a fraction of total ballots cast. The initial cycle of machine counts left Bush with a 537 vote lead out of some 5.8 million votes--a margin which by proportion was strangely close to that of the final Washington 2004 tally. Gore and the Democrat party contested the election and called for a statewide manual recount. Unlike Washington, Florida had no legal provisions for manual recounts in contested elections and were unable to raise enough political support for one. However, there were at least four predominately Democratic counties that were known to have suffered unusually high levels of ballot spoilage and for which reports of election irregularities were abnormal; Volusia, Palm Beach, Miami-Dade, and Broward. Changing tactics, they chose to concentrate their manual recount efforts here arguing that,

• A 537 vote margin out of 5.8 million ballots cast was not a statistically significant victory and could have gone either way.
• There was clear evidence of irregularities in precinct operations including low quality vote tabulation machines and issues, polling place access and usability issues, and problems with voter assistance impacting the accurate casting of ballots.
• The problem ballots in these counties--those that had not been read by vote counting machines or were otherwise discarded under questionable circumstances--were unusually numerous, and many had clear evidence of voter intent and could be counted.

Each of these claims was in fact true and neither Secretary of State Katherine Harris nor the Bush campaign questioned them. In all, over 175,000 votes out of 5.8 million went uncounted (a comparable fraction for Washington would be 82,000—nearly half the population of Spokane, WA). Within 2 days attorneys for Gore filed a formal request for manual recounts in these four counties. A Circuit Court ordered Palm Beach County not to certify its vote. Immediately, the Bush campaign launched immediate and vigorous attack against the implementation of any manual recounts statewide or by county, receiving support from Katherine Harris' office throughout the process. Soon after the election it was discovered that several counties had not even done the required machine recount in accordance with state law. Some 18 of Florida's 67 counties simply checked their original figures instead (Mintz & Slevin, 2001).

Many challenged Harris' role in the matter pointing out that she had a conflict of interest. As Secretary of State she was responsible for certifying the final result yet had also been an acting co-chair for the Bush Campaign in Florida (a position she did not recuse herself from until literally the day before the election. She made active use of the office's legal resources and funds in support of the Bush Campaign tasks, including the use of her legal team to block all recount efforts requested by Democrats, repeated legal challenges on behalf of Bush, collaborating with Republican party advisers, and even sending a lawyer to Palm Beach County to put pressure on their voting board to stop its manual recount--despite thousands of protesters within the county, 12,000 of whom had affidavits (Wikipedia, 2005b). At one point she housed Republican Party advisors working for the Bush Campaign. In the years after the election multiple lawsuits were brought against her office, the Florida Division of Elections, and several County Supervisors for their handling of these and other issues during the election (particularly the state felon list). All were settled in favor of the plaintiffs.

For their part, Bush and Harris did have some valid complaints. They argued due to the lack of consistency in standards for determining voter intent from spoiled ballots among Florida counties, a statewide manual recount could not be guaranteed to be fair--a claim that was in fact true and was later upheld by the U.S. Supreme Court. Even so, the defense rang hollow in the public eye for at least two reasons. First, nether Harris of Bush offered any proposals for a bipartisan recount or any other plan by which spoiled votes might be recovered--a goal that was at least partially of not completely achievable and for which there were historical and legal precedents (Cohen, 2000). In fact, they actively fought all attempts at manual recounts regardless of whether spoiled ballots could be recovered. At one point Harris even sent a lawyer to Palm Beach County specifically to pressure the county voting board to stop their recount and all efforts to recover spoiled ballots (Wikipedia, 2005b). Second, Harris' office made no attempt to investigate any reported incidents of ballot spoilage or polling place irregularities that turned up on Election Day. Numerous instances of such were revealed, particularly in Palm Beach County where ballot spoilage reached record levels and numerous investigations had revealed statistical anomalies with the canvassing of ballots there well before the election was certified. Even the 18 counties that had not done their legally mandated machine recounts were not investigated. Third, despite the appearance of partisanship in these activities Harris rebuffed all criticism of it and refused to address concerns about her neutrality.

These factors, combined with her legal and procedural efforts on behalf of the Bush Campaign after Election Day left many questioning her neutrality and accused her of being more committed to getting Bush elected than to ensuring that all rightful votes were counted. To this day Harris has not openly admitted to any impropriety in the Florida 2000 election. In the weeks following the New York Times and her media outlets requested access to the contents of the computer hard drives in her office to verify her claims of non-partisan activities. She refused. Eventually she did allow DataTrail Electronic Discovery Services (DTEDS), a data mining firm contracted by the Orlando Sentinel, to examine them (Silva & Kleindienst, 2001). Their investigation did not uncover a clear smoking gun pointing to the destruction of documents, but they did find considerable evidence that Harris "wore two hats"--one as Secretary of State, and another as a co-chair of the Florida Bush campaign.

Among other things, DataTrail did find that new operating systems had been installed on 3 of her office computers since the original request. Two of these had been used during the election. One had been set up with Windows 2000 Professional (at the time state of the art). The other two had received Windows 95 and 98. This is noteworthy because Windows 95 and 98 were obsolete. Both lack the stability and security of Windows 2000 as well as many other capabilities. There was no compelling reason for the installation of older operating systems on these desktops--except for the fact that if they were replacing a Windows 2000 seat it would have been necessary to reformat the drives, effectively wiping out all trace of previous files on them. Windows 2000 Professional gives users the choice of a drive reformat during installation. In fact this would be necessary if it was replacing Windows 95 or 98 if the new installation was to implement the OS's security features (which is almost always the case in office environments). The security features in Windows 2000 are based on a hard disk file system that does not support Windows 95 or 98. The nature of these OS changes and the circumstances under which they happened are unclear. DTEDS was equivocal as to whether they found evidence of these drives being reformatted during install, and actually made statements implying that they think it did not happen. But it certainly was possible, particularly if the computers had multiple disk partitions for data storage (which could have been reformatted and populated while leaving the primary OS partition in its original state. Furthermore, even if the drives had not been reformatted this would have been a logical choice for someone who wished to do so but was not computer savvy enough to know the difference between the overwriting of files and a disk reformat during an OS installation. In any event, the whole episode was questionable at best and raises more questions than it answers. Particularly in light of the fact that on at least one other occasion she is known to have altered a document pertinent to the investigation of her oversight of state's year 2000 felon list before providing it to investigators (Lewis, 2004).

Harris pushed for certification of the vote on November 14, 2000 before the Florida Supreme Court had finished its review of hand recount proposals, only to be blocked by court order. Within one week of Election Day manual recounts began in the four target counties. Over the next two weeks the Florida Supreme Court intervened twice and ordered Harris to allow them to continue. The second time they came close to authorizing what a nationwide polls indicated that a majority of Americans wanted--a statewide recount with bipartisan oversight. By this time, a number of uncounted votes had already been recounted, all of which met county standards for reliable determination of voter intent. Harris and Bush continued their fight to exclude them, and eventually succeeded in shutting down the manual recount. On November 22 Harris certified the vote with a Bush lead of 537. Despite her strident objections, within one week the Leon County Circuit Court ordered her to include an additional 383 votes from Palm Beach and Miami-Dade counties in the final count on the grounds that they showed clear indication of the voter's intended choice. This reduced Bush's lead to 195 votes.

But the Florida court had thrown a curveball. Harris and Bush got the manual recount shutdown they sought, but the court approved a statewide manual recount of undervotes (ballots that recorded no selection of a candidate) but not overvotes (ballots that recorded selections for multiple candidates). Harris and Bush wanted no recounts of any kind, so they turned to the U.S. Supreme Court. The U.S. Court questioned the Florida Court's decision to allow for undervotes but not overvotes as both misrepresent voter intent in ways that could be determined in many cases. In the end, they affirmed that Florida's county level manual recount standards were in fact disparate enough to unconstitutional. They decided that manual recounts should not be allowed until Florida could come up with a consistent statewide standard for implementing them. In theory, this was certainly within reach, and in fact had been from the beginning. However, Harris and the Bush Campaign had succeeded in drawing out their legal challenges until the deadline for selection of Florida's electors was literally hours away, thereby making this impossible. On Dec. 12, 2000 the Court issued a deeply partisan 5-4 ruling that all recounts be stopped--all 5 conservative judges affirming and all 4 moderate or liberal judges dissenting. This gave the final victory to George Bush at the originally certified margin of 537.

In the aftermath various media outlets produced a flurry of recount studies that examined the potential outcomes of recount scenarios based on different county standards for evaluating voter intent. Results ranged from a Bush victory by a few hundred votes to a Gore victory by similar margins (Kaplan, 2001; Toobin, 2001). Most found that Gore had lost considerably more votes to factors unrelated to voter preference and would likely have won had these been taken into account.

Palm Beach in particular suffered from irregularities. Because it was a clear outlier in its vote counts for Buchanan compared to the rest of the state, a number of statistical analyses were done to determine whether this was coincidence or evidence of unintentional or intentional voter disenfranchisement. Wand et al. (2000; 2001) analyzed the Palm Beach Buchanan vote compared with nationwide county results using a generalized linear model (GLM) (McCullagh and Nelder, 1989) based on a binomial distribution of votes nationally and corrections for over-dispersion. As mentioned above, given the large sample size involved (N >> 1000) a gaussian or binomial distribution in trial counts is to be expected so this is a good assumption. They compared results in Palm Beach with nearby Leon County as an additional control to capture local Buchanan support. They found that Palm Beach had the second highest statistically significant anomaly of Buchanan votes in the country, and that this anomaly correlated strongly with under-representation of Gore, and that a significant majority of Buchanan's 3,407 votes there were intended for Gore.

Other independent analyses examined Palm Beach, Miami-Dade, and Broward counties for vote irregularities using a variety of independent statistical methods. These include least-squares methods applied directly to the vote counts (Brady, 2000; Orzag and Orzag, 2000; 2000b; 2000c; Ruben, 2000; Jackson, 2000), binomial methods (Hansen, 2000), regressions of county level demographic data (Hansen, 2000b), chi-square methods applied to electronic copies of ballots, with covariate controls, to determine overvote/undervote probabilities vs. statistical expectation (Herron and Sekhon, 2001), multivariate beta-logit model analysis of vote counts (Hansen, 2000c; 2000d). All concluded that in Palm Beach and Miami-Dade counties alone Gore lost between 300 and several thousand legitimate votes relative to Bush with a median estimate of between 2,000 and 3,000. Furthermore, every one of these studies included controls for factors other than voter confusion, machine error, and polling place issues that could have skewed the results, including local shifts in political trends since previous presidential elections. All included analysis encompassing several methodologies that estimated whether non-random biases in counts would have favored Bush or Gore. All show that count anomalies are correlated with factors unrelated to voters themselves representing a genuine disenfranchisement in these counties, and that the impact was heavily toward Gore voters. Based on these results, a manual recount of all discarded votes in Palm Beach and Miami-Dade alone appears to have taken at least 2000 legitimate votes away from Gore relative to Bush. A manual recount with proper bipartisan oversight would have revealed these votes and given the election to Gore.

In fall of 2001 a consortium of several media outlets including the St. Petersburg Times conducted what is likely the best analysis to date of what might have happened if a manual recount had been allowed. The consortium independently contacted all 67 of Florida's counties to find out how each would have conducted a recount, in particular how undervotes and overvotes would have been handled (had the latter been allowed). With this information they hired the non-profit, non-partisan National Opinion Research Center (NORC) affiliated with the University of Chicago. NORC sent teams of investigators to Florida to examine all 175,000 discarded Florida votes to determine how each county's standards would have affected a manual recount. After several months of investigation they discovered among other things that,