The Lessons of the Bush-Gore Recount for the 2020 Election

The Lessons of the Bush-Gore Recount for the 2020 Election

9.8.2020

By Susan DeSantis

Editor’s Note: It has been 20 years since Vice President Al Gore contested the presidential election results in Florida. With Texas Gov. George W. Bush leading by fewer than 300 votes out of 6 million cast, the Gore team requested a manual recount in four heavily Democratic counties. John Hardin Young, an election lawyer on the Gore team, recently sat down to reminisce about those days and discuss implications for the 2020 election. The interview is part of NYSBA’s examination of election law during this political season. 

The 2000 election was so close that whoever won Florida’s 25 electoral votes would win the presidency. The recount started under impossibly tight deadlines and was made more difficult by the different kinds of ballots used in Florida. While some of the ballots were the optical scan fill in the bubble type used on the SAT, others were punch ballots. Punch ballots were supposed to be punched all the way through so they could be read by a machine, but during the hand recount some counties allowed partially perforated ballots, known as a “pregnant” or a “swing door” chad.

Q: What was it like for you to be involved in the Bush v. Gore recount and court case?

A: It was obviously challenging. But at the same time, no one had done a recount in a presidential election. It was a time of great uncertainty. We weren’t sure how the process was going to work. And the Florida statute was very unclear and very unhelpful in trying to sort through how we would proceed. We were also up against some artificial deadlines, which became real deadlines as we proceeded.

Q: What was the biggest victory for the Democrats and the biggest blow?

A: The biggest victory is that as we continued the recount in the four counties, we got closer. A high point was that we picked up 98 net votes for the vice president in Volusia County. That is an optical scan jurisdiction and we did well there early. The other three counties were the famous punch cards. They were slower. The Palm Beach recount was disorganized from the beginning, and the Miami-Dade recount was on again off again because of a very disorganized and I think fearful electoral board. That was the high point, the beginning.

The low point was the legal process. While there were some victories, there was also the loss at the Supreme Court. The Supreme Court would ultimately take the case and determine that the process was so irregular as to violate equal protection.

Q: Why did the Gore team only want four counties recounted? Why did you advocate for a statewide recount?

A: The theory was that if we could get ahead in the four counties, then that would change the dynamics of the press coverage, and also the dynamics within Florida. But I favored a statewide recount because there’s a basic rule of recounts, and that is: If you’re ahead, make it as narrow as possible, get it done as quickly as possible. If you’re behind as Al Gore was, make it as broad as you can, gather as much as you can. Leave no stone unturned because you’re behind, and you want to expand what has already been counted.

Q: Is the electoral process removed from politics or does it matter which party controls the state?

A: One of the things that Al Gore’s team ran up against from the beginning was the Republican dominance of the electoral process. We had a secretary of state who was very political. She was the head of the electoral process as secretary of state. She was also co-chair for George Bush’s campaign.

It is one of the things that continues from time to time, of having secretaries of state who are in charge of the election also being political operatives. We saw that recently in Georgia. We’ve seen it in Kansas and elsewhere. And that was probably the toughest thing to overcome, far more than just the courts. We had a political operative in the secretary of state’s office who was pulling the strings, and that was difficult if not impossible to overcome.

Q:  Could you explain what went wrong with the butterfly ballot in Palm Beach County and its impact on the election?

A: Yes. The butterfly ballot was an attempt by election officials to put all the candidates on one set of pages. And when you open up a ballot on the machine, you could get all the names on, but it jammed the punch holes together so that it was deceptive or confusing as to how you would vote for the major candidate: Al Gore and George Bush. In Palm Beach, the ballot was confusing enough that 6,000 people, many of whom were Jewish and wanted to vote for Joe Lieberman, the first Jewish candidate on a major party ticket, voted for Pat Buchanan, who was anathema to their very existence.

The second mistake was that once the butterfly ballot mistake was discovered on Election Day, there was no reaction. What should have happened, and Al Gore I think would be president with one word: Kinko’s. Had Democratic operatives in Palm Beach gone to Kinko’s and cranked out sample ballots and circled them with a big magic marker and shown where to punch that would have made the difference. We wouldn’t have captured all of the lost votes, but we would have captured probably half of them, or 3,000 votes, and the recount would be history and Al Gore would be president.

Q: What did the parties learn from the 2000 election?

A: Since then, both political parties have dispatched lawyers to cover the polls because that’s where the elections are won or lost. Recounts can make a difference, but they can only do so much. What recounts can do is to pick up where mistakes are made or where the machine didn’t count all the ballots.

For example in 2000 in Volusia County, which is optical scan, by hand counting the ballots we were able to capture additional votes for Al Gore and Joe Lieberman that weren’t picked by the machines because they were not fully within the oval. Someone had circled the name and said, “I’m voting for these guys.”  Those showed a clear intent to vote, which while the machine may not pick up, certainly someone looking at the ballot would understand.

Q: Why do you think the U.S. Supreme Court ultimately halted the recall?

A: When we began fighting over the “pregnant,”  and “swing door” chad that wasn’t fully punched out, that was a mistake, although not really Gore’s fault. I think it disrespected the process; it created a circus atmosphere. It made the whole process seem less serious.

And when it became less serious, it became less important. And I think that whole circus atmosphere, with a whole lack of seriousness or businesslike approach, caused the Supreme Court to have a perception that this was a process that was out of control.

Q:  How did the parties and the American voters react to the U.S. Supreme Court ending the recount?

A: One of the interesting things is the decision of the Supreme Court was accepted. It was accepted by the candidates; it was accepted by the American people. I think if that had occurred anywhere else, there would have been riots in the streets and I think there would have been a great deal of civil unrest. It didn’t happen. Dec. 12th, we all went home.

Q: What do you think would happen in 2020 in a similar situation?

A: I think if that happened today, where we’re very divided, you’d have a totally different reaction. I think you would have a different response. Now, the good news is that we don’t have punch cards anymore. It is very unlikely that we would ever have a repeat of 2000.

Well, hopefully in 2020 we’ve learned a lot about how ballots are prepared. We’ve gotten rid of punch cards. We now have paper trails, so we can look at ballots. Many of them are now marked by a machine or there are optical scans where we can not only look at the ballots, but we know enough about the process to have pretty uniform standards.

For example, Virginia has adopted standards of what counts on an optical scan ballot. Other states have followed. On the ballot side, we would hopefully never see a Florida recount again.

Q: With so many voters casting ballots by mail in 2020, what problems may arise?

A: You have the question of, has the ballot then properly cast? That is, is it signed and sealed? In states that have witnesses’ requirements, is it witnessed? Is it proper?

After 2000, the law changed slightly so that everyone can vote. If there’s a question about your eligibility, you can vote provisionally. And what that means is that you may not have been on the election records, you may not have had the right ID in those states that require voter ID, but we’ll accept your ballot and you can prove who you are, or we’ll check the records very shortly after the election to see if your ballot should be counted.

Now here’s the problem: With provisional ballots and even absentee ballots, we have enough information about people, and we have voter records. When your ballot is sent in, we know who it’s from. Now, we don’t know what’s inside. We don’t know how you voted, but we know enough about you to say, “I know your voting history. I know that you’ve voted for the last 10 years in every election, and you voted in the Democratic primary.” If I’m a Republican, I may challenge it based on, I don’t think the signature is right, or it doesn’t look like it’s sealed or something else is irregular. So, it leads to a series of challenges to the ballot that could be as intense as Florida 2000. Now, we need to find ways to ensure that that doesn’t happen, that I can’t presume who you voted for based on who it’s from.

One of the things that is very helpful is that we’re moving to electronic machines that can be audited. In one set of machines you mark your ballot, see the ballot result, and it’s a printed piece of paper. And that printed piece of paper is retained in the machine storage box. And so, if there is a question, we can go and look at the actual ballots.

And so, we need to continue to evolve the technology so that we can get an accurate count. And at the same time, decrease any challenges that are made for political purposes.

Q: When will we know the result of the 2020 election?

A: I think the president’s suggestions that we won’t know for weeks and months is wrong. Now remember, we also have an electoral college. We’re not counting the popular votes across the country; we’re counting electoral votes. It will all be state by state, with the exception of Maine and Nebraska, which do it by Congressional district. If it’s as close as Bush versus Gore was, it may take a little bit of time, but it is not something that will keep us in suspense very long.