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Katherine Harris Pulls the Helpless Routine—Again!
Timothy NoahPosted Monday, Nov. 27, 2000, at 5:11 PM ETIn certifying the election for George W. Bush, Florida Secretary of State Katherine Harris yesterday refused to consider the partial hand recount submitted by the Palm Beach County canvassing board. Palm Beach County had fallen a little behind in its hand recount and had asked Harris for an extension past the 5 p.m. deadline (which, in a pinch, could have been pushed back to this morning without violating the Florida Supreme Court's Nov. 21 order). Harris said no. Whereupon Palm Beach County submitted its nearly finished recount. (It finished up two hours later.) Whereupon Harris, citing Section 102.166 of the Florida election statutes for the year 2000, claimed the law did not permit her to count even that. Here is what she said (click here, scroll down to Harris's picture, and click again to watch her say it):
One set of numbers is identified as a partial--one set of numbers is identified as [a] partial manual recount that fails to comply [italics Chatterbox's] with the provisions of Section 102.166.
But did Palm Beach County really fail to comply? Remembering that Harris had assumed a phony "my hands are tied" stance when she initially tried to block the hand recount (even the lower court, which ruled that the law gave her discretion to shut the hand recount down, didn't buy that the law required her to shut it down), Chatterbox decided to look at the statute. Here is what Section 102.166 has to say about partial recounts:
The manual recount must include at least three precincts and at least 1 percent of the total votes cast for such candidate or issue. In the event there are less than three precincts involved in the election, all precincts shall be counted.
Palm Beach County's partial manual recount, submitted to Harris by the 5 p.m. deadline, included all but roughly 1,000 out of 462,000 ballots. It just isn't possible that this partial recount failed to cover "at least three precincts and at least 1 percent of the total votes." Wondering whether he was missing something, Chatterbox phoned Bruce Rogow, lawyer to Palm Beach County Elections Supervisor Theresa LePore. "There is nothing in the statute that precluded her from accepting the partial recount," Rogow confirmed. Did she just cite the wrong law? Is there some other statutory language that forbids a partial recount? Nope, Rogow said.
Of course, this is all academic because Palm Beach County was in no position to provide Gore a margin of victory. But as Mickey Kaus has noted, that very fact makes Harris' stinginess about the deadline seem particularly foolish--a lost opportunity to appear magnanimous while still getting the result she so obviously sought. For Harris to pretend, on top of that, that she was unable to count any of the hand-counted Palm Beach County ballots goes a long way toward explaining why Democrats have taken to comparing Harris to Cruella DeVil (though Chatterbox thinks she looks more like Natasha Fatale in Rocky and Bullwinkle).
[Correction, 11/28: The plague of misunderstandings and misinformation besetting Indecision 2000 finally caught up with Chatterbox: I completely botched this one. As several readers were kind enough to point out (see, for instance, Paul Decker's reprinted "Fray" comment, below), the relevant language in 102.166 is NOT the business about including three precincts and at least 1 percent of the total vote. That language merely describes the rules for a preliminary test before the manual recount takes place. The relevant language is 5 (c), which calls for a manual recount of "all ballots." A logical reading of this is that manually recounting "some" ballots would not be sufficient. Bruce Rogow, who yesterday assured Chatterbox that the statute did not compel Harris to exclude a partial recount, seems to have misunderstood either the facts or Chatterbox's question; or, possibly, Chatterbox misunderstood Rogow's answer. (It was a very hurried interview.) In any case, Chatterbox read Rogow 5 (c) today and asked whether Harris, having decided not to grant an extension, would have been permitted by law to accept a partial recount. Rogow replied: "The answer would be no." Rogow then reaffirmed that there was no need for Harris to impose the 5 p.m. deadline, a point with which Chatterbox agrees. Nonetheless, Chatterbox apologizes to Harris for casting aspersions on her reading of Florida law in this instance.]
E-mail Timothy Noah at .
Timothy Noah is a senior writer at Slate. Reader Comments from The Fray:
Katherine Harris was correct in rejecting the partial recount, just as Gang Gore is wrong in its arguments that the partial recount from Dade County should be included. The relevant statute is not 102.166(4)(d), which simply deals with the standard for determining whether a recount should be conducted, but instead 102.166(5), which gives a county canvassing board the following three options if there is an error in the vote tabulation determined by a partial manual recount:
"(a) Correct the error and recount the remaining precincts with the vote tabulation system;
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots."
Note that (c) requires a manual recount of ALL ballots, not all but 1,000. If the recount is partial, it isn't the recount specified by 102.166(5)(c).
OK, so it appears Katherine Harris was within her rights to reject the Palm Beach County ballots. Nevertheless, she did have an alternative that would have let her accept them. She could have shut her office down prior to 5 PM on Sunday, which (under the Florida Supreme Court order) would have given the Palm Beach County recounters until 9 AM Monday to finish.
This gesture would clearly have been a popular one; it wouldn't have changed the outcome in Florida unless Palm Beach County suddenly started counting dimpled chad; and it would have played well with all the media in Florida. So why didn't she do it? Perhaps because, as Chatterbox opines, Katherine Harris is more like the stylish but bumbling Natasha Fatale than she would like to admit!
--Paul Decker
(To reply, click
here.)
(11/27)
I've looked carefully at the statutes in issue and I believe the following is clear:
1. Noah cited the wrong statutory provision, and Fray commenter Decker the correct one.
2. However, that doesn't mean that Noah's conclusion is incorrect, and Decker's conclusion is correct.
3. In fact, Noah probably is correct that Harris was blowing smoke when she said she had no authority at all to accept partial recount totals. Moreover, Harris' refusal to do so arguably is illegal.
4. Both Noah and Decker are correct in saying that Harris' refusal to give Palm Beach until 9 a.m. Monday was indefensible and probably motivated by partisan bias.
Here's why.
Fray poster Paul Decker was correct, as far as he went, in correcting Tim Noah's item. The provision Noah cited is geared toward a preliminary determination of whether there was an error with the machine count. 102.166(5) does say that if the county canvassing board feels that there is an "error ...which could affect the outcome," it "shall" either:
(a) correct the error and recount the remaining precincts with the vote tabulation system;
(b) Request the Department of Stte to verify the tabulation software; or
(c) manually recount all ballots. But I think Decker goes too far in saying that this proves Harris couldn't accept a partial recount.
Here, the county board did in fact find an error, triggering the mandatory provisions of 102.166(5). The board "shall" do (a) through (c) above. Here, it tried to do (c), but couldn't meet the deadline. There is no option (d)--"ignore the obvious error and certify the original, flawed results," which is what Harris ended up doing. We now have a situation in which, because of the deadline problem, NONE of the three MANDATORY options were exercised.
In order to give this provision meaning, then, one might arguably have to read (5)(a) as saying that you could do a partial manual recount and rely on the machine-tabulated totals from other precincts to provide the rest. Look at the above language in (a), and you see what I mean. As long as the county canvassing board considered this to "correct the error," then (5)(a) should apply. This interpretation is both more faithful to the statutory language, AND more consistent with the Fla Sup Ct's general rule that statutes should be interpreted with flexibility to effectuate the will of the voters.
It could be argued that the danger in allowing such a partial recount total is that the county board might have manually recounted Democratic precincts but not Republican ones, thus injecting bias into the partial recount, such that the original, admittedly flawed, machine-only count ends up actually being more accurate. However, this is precisely the kind of issue which Florida law allows to be litigated and decided in the post-certification election "contest" of 102.168.
--Steven Mulroy
(To reply, click
here.)
(11/28)
I think that Noah misses the point. The Florida Supreme Court ordered and set the time frame and the deadline. This time and date was an 'extension' ordered by the court. By Florida law the election certification should have been completed long ago. The 'extended' deadline was 19 days after the initial election. Katherine Harris has a duty to provide certification per the requirements of Florida Law, and even though the State Supreme court intervened, she supported the 'extension' and provided certification under the instructions provided by the court.
If you want to talk about someone acting 'helpless', take a look at Joe Lieberman and his assertion that he has 'no choice' but to contest the election results in Florida. Joe cries loudly, that, everyone's vote is important and needs to be counted or the process is flawed. Is the irony lost on us that the only votes that fall into this category are the ones in the precincts where he feels that he can pick up the most votes?
--D Michael S
(To reply, click
here.)
Would Chatterbox be eager to see Katherine Harris extend the deadline for submission of military ballots? Or would it be OK if she'd given GOP-heavy counties an OK to submit partial returns? She did her job, period. If Chatterbox wants to blame anyone, he should look to the village idiots on Florida's high court--who, after exercising tyrannical power in halting the original certification of votes, attempted to look fair by demanding a short timeline for recounts. Or Chatterbox could blame the lazy county canvassers--in one county they were so work-averse that, rather than do their job, they took one-half of Wednesday, all of Thursday, and one-half of Friday off; in the other, they simply refused to follow the court order. Don't blame Harris--she did her job.
--Bill
(To reply, click
here.)
(11/27)
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Reader Comments from The Fray:
Katherine Harris was correct in rejecting the partial recount, just as Gang Gore is wrong in its arguments that the partial recount from Dade County should be included. The relevant statute is not 102.166(4)(d), which simply deals with the standard for determining whether a recount should be conducted, but instead 102.166(5), which gives a county canvassing board the following three options if there is an error in the vote tabulation determined by a partial manual recount:
"(a) Correct the error and recount the remaining precincts with the vote tabulation system;
(b) Request the Department of State to verify the tabulation software; or
(c) Manually recount all ballots."
Note that (c) requires a manual recount of ALL ballots, not all but 1,000. If the recount is partial, it isn't the recount specified by 102.166(5)(c).
OK, so it appears Katherine Harris was within her rights to reject the Palm Beach County ballots. Nevertheless, she did have an alternative that would have let her accept them. She could have shut her office down prior to 5 PM on Sunday, which (under the Florida Supreme Court order) would have given the Palm Beach County recounters until 9 AM Monday to finish.
This gesture would clearly have been a popular one; it wouldn't have changed the outcome in Florida unless Palm Beach County suddenly started counting dimpled chad; and it would have played well with all the media in Florida. So why didn't she do it? Perhaps because, as Chatterbox opines, Katherine Harris is more like the stylish but bumbling Natasha Fatale than she would like to admit!
--Paul Decker
(To reply, click here.)
(11/27)
I've looked carefully at the statutes in issue and I believe the following is clear:
1. Noah cited the wrong statutory provision, and Fray commenter Decker the correct one.
2. However, that doesn't mean that Noah's conclusion is incorrect, and Decker's conclusion is correct.
3. In fact, Noah probably is correct that Harris was blowing smoke when she said she had no authority at all to accept partial recount totals. Moreover, Harris' refusal to do so arguably is illegal.
4. Both Noah and Decker are correct in saying that Harris' refusal to give Palm Beach until 9 a.m. Monday was indefensible and probably motivated by partisan bias.
Here's why.
Fray poster Paul Decker was correct, as far as he went, in correcting Tim Noah's item. The provision Noah cited is geared toward a preliminary determination of whether there was an error with the machine count. 102.166(5) does say that if the county canvassing board feels that there is an "error ...which could affect the outcome," it "shall" either:
(a) correct the error and recount the remaining precincts with the vote tabulation system;
(b) Request the Department of Stte to verify the tabulation software; or
(c) manually recount all ballots. But I think Decker goes too far in saying that this proves Harris couldn't accept a partial recount.
Here, the county board did in fact find an error, triggering the mandatory provisions of 102.166(5). The board "shall" do (a) through (c) above. Here, it tried to do (c), but couldn't meet the deadline. There is no option (d)--"ignore the obvious error and certify the original, flawed results," which is what Harris ended up doing. We now have a situation in which, because of the deadline problem, NONE of the three MANDATORY options were exercised.
In order to give this provision meaning, then, one might arguably have to read (5)(a) as saying that you could do a partial manual recount and rely on the machine-tabulated totals from other precincts to provide the rest. Look at the above language in (a), and you see what I mean. As long as the county canvassing board considered this to "correct the error," then (5)(a) should apply. This interpretation is both more faithful to the statutory language, AND more consistent with the Fla Sup Ct's general rule that statutes should be interpreted with flexibility to effectuate the will of the voters.
It could be argued that the danger in allowing such a partial recount total is that the county board might have manually recounted Democratic precincts but not Republican ones, thus injecting bias into the partial recount, such that the original, admittedly flawed, machine-only count ends up actually being more accurate. However, this is precisely the kind of issue which Florida law allows to be litigated and decided in the post-certification election "contest" of 102.168.
--Steven Mulroy
(To reply, click here.)
(11/28)
I think that Noah misses the point. The Florida Supreme Court ordered and set the time frame and the deadline. This time and date was an 'extension' ordered by the court. By Florida law the election certification should have been completed long ago. The 'extended' deadline was 19 days after the initial election. Katherine Harris has a duty to provide certification per the requirements of Florida Law, and even though the State Supreme court intervened, she supported the 'extension' and provided certification under the instructions provided by the court.
If you want to talk about someone acting 'helpless', take a look at Joe Lieberman and his assertion that he has 'no choice' but to contest the election results in Florida. Joe cries loudly, that, everyone's vote is important and needs to be counted or the process is flawed. Is the irony lost on us that the only votes that fall into this category are the ones in the precincts where he feels that he can pick up the most votes?
--D Michael S
(To reply, click here.)
Would Chatterbox be eager to see Katherine Harris extend the deadline for submission of military ballots? Or would it be OK if she'd given GOP-heavy counties an OK to submit partial returns? She did her job, period. If Chatterbox wants to blame anyone, he should look to the village idiots on Florida's high court--who, after exercising tyrannical power in halting the original certification of votes, attempted to look fair by demanding a short timeline for recounts. Or Chatterbox could blame the lazy county canvassers--in one county they were so work-averse that, rather than do their job, they took one-half of Wednesday, all of Thursday, and one-half of Friday off; in the other, they simply refused to follow the court order. Don't blame Harris--she did her job.
--Bill
(To reply, click here.)
(11/27)