News and Features
After a bruising fight fopr the presidency, George W. Bush is stocking his cabinet with figures from the far right, none more so than John Ashcroft.
Five Supreme Court Justices are criminals in the truest sense of the word.
The ascendency of George W. Bush to the presidency exposes stark dissatisfaction in the United States.
George W. Bush's and Dick Cheney's 'hearts' are in the right place.
When George W.
To a degree that's hard to appreciate outside Wisconsin, Tommy Thompson's impending move to Washington to become Secretary of Health and Human Services will transform this state's politics. Now entering his fifteenth year as governor, Thompson has for so long and so completely dominated our political life that we are used to mapping its history in Steinbergian epochs. There is Old Wisconsin, a receding green landscape where one can still glimpse the tiny figures of Fighting Bob La Follette, Father Groppi, Gaylord Nelson and the circling ghost of Joe McCarthy. And then there is Today's Wisconsin, an eternal, life-sized present, physically more akin to northern New Jersey and better known as "Tommy's Place." That yet another political world will soon come into view has us more than confused. We are dazed with hope. We even seem to be breathing differently.
But enough about us. What can we tell you about our "man from Elroy," the tiny farming town, deep in our coldest sticks, that is Thompson's lifelong home and the place he long represented in the State Assembly?
First, don't underestimate him. Before becoming governor, Thompson's twenty-year career in the State Assembly was distinguished only by painstaking party hacking and strident but ineffective advocacy of then still unfashionable right-wing views. Among liberals, his election as governor was greeted as a brief hiccup in state politics largely attributable to a Rustbelt recession that still resisted sleep here. Thompson was thought to be nasty but a rube, sufficiently at odds with the state's centrist political culture to be transient in his power.
Boy, were they wrong. Upon taking office, Thompson moved immediately to tighten his control of the state apparatus, overrunning Wisconsin's traditionally independent civil service with a small army of intensely loyal and openly political appointees. He patronized continuously and at scale, afterward tapping a river of corporate cash to float easily from one landslide re-election to the next. And he simply rolled legislative Democrats, stabbing them to death with his magic veto pen. Wisconsin grants its governors the unusual power to strike not just line items but individual words and numbers, and to reduce any proposed expenditure. Used infrequently before Thompson, the power in theory makes legislative budgets the equivalent of phone books, ready for gubernatorial cut and paste. Thompson made theory practice, boldly invoking the power some 2,000 times to shape law in his own image, and not once was he overridden. Make no mistake about it--the rube ruled.
Second, don't box him ideologically. Thompson signed one of the nation's most punitive late-term abortion bans (later overturned, with many others, by the US Supreme Court) and is on record as believing that abortion should be criminalized except where necessary to save a woman's life, or in cases of rape or incest. But he's also strongly defended stem-cell researchers (who use extracted embryo cells) at the state university and worked with Madison's liberal US Representative Tammy Baldwin, who happens to be an open lesbian, on women's healthcare concerns.
He has crusaded ceaselessly against welfare recipients, eventually gaining national renown by time-limiting their eligibility for support. (This Wisconsin "miracle" is hardly that. It achieved massive reductions in welfare caseloads by simply losing track of former recipients or dissolving them in a sea of working poor.) But he's also been quicker than other welfare "reformers" to help those once on welfare rolls with expanded childcare assistance and health insurance, and extended those benefits to many others. He killed light rail in Milwaukee and is a god for the state's highway lobby. His most enduring legacy, indeed, won't be welfare reform but sprawl. However, as chairman of Amtrak, he's also recently promoted high-speed rail in the Midwest. As anti-union as the next Republican, he's supported joint labor-management efforts at worker training and job retention. And so on. Always happy to throw big bloody chunks of red meat to the right, Thompson makes deals with others, too. His only limit: "if business does not object."
Third, watch out. Thompson's intelligence and near-feral sense of power, along with his longstanding ties to the Bush family, samurai devotion to the Republican Party and close attention to political detail (not to mention his polished self-caricature as a happy Babbitt from the heartland, brimming with confidence and good cheer interrupted only by occasional tearful confessions of how much he loves public service, or the lightning decapitation of a political opponent) make him a formidable political force. Add in several hundred billion dollars in HHS programs and tens of thousands of lines of amendable administrative program code, and you have something worth worrying seriously about.
Worth emphasizing here is that Thompson is not another half-cocked James Watt. By nature--and despite his Zeus-like reign in Wisconsin--he is a team player who treasures political discipline. But as a political pro, he seldom shows his hand before he plays it, and it is seldom possible to predict just what that play will be. You can only rest uneasy that whatever it is it will come at you full-bore. Prudence recommends both a readiness to respond in kind and more than the usual openness to the possibility of tactical alliance.
Good luck, America.
Far more federal investigators. Many more prosecutions of illegal immigrants. The continuing dominant role of the war on drugs. A decreasing emphasis on white-collar crime. More and more time required for the completion of criminal prosecutions. The unchanging reluctance of federal prosecutors to deal with brutal police officers. Fewer audits for corporate America.
Those are some of the important ingredients of the Clinton legacy. While President Clinton's influence was felt throughout the federal government, it is in the area of law enforcement that some of his Administration's most striking aspects can be documented. Considered together, they point to an Administration that, while talking about liberal values, was extremely successful in capturing the political support of a law-and-order constituency that for many years had mostly backed the GOP.
Often, the role of the White House was relatively minor. But since President Clinton has casually claimed credit for many good things that happened, whatever the size of his contribution, it seems only fair to judge his performance by that same standard. And based on such a review, it is clear that George W. Bush should have little trouble carrying on much of the Clinton tradition.
Headcount and Spending
Perhaps the most startling development of the Clinton years was the change in the basic makeup of the federal government. During the recent election campaign, one of Bush's favorite lines concerned Vice President Al Gore's alleged lust for big government. But as Gore noted in very general terms, the federal government shrank during the Clinton years. With the end of the cold war, the number of uniformed personnel in the military went down. Significantly, however, the 1999 federal payroll listed almost 25 percent fewer civilian employees--in relation to population--than it did in 1992. Meanwhile, the number of criminal investigators was increasing. In 1992 there was one criminal investigator for every thirty federal employees. In 1999 there was one criminal investigator for every twenty employees. With no room for discussion, Clinton is leaving us with a government that has become more concerned with enforcing the law and investigating the people, and less able to provide the public with a range of other services.
Given the overall decline in government employees, it is not surprising that direct federal expenditures did not increase during these years. In constant dollars, payments amounted to $5,694 for each American in 1992, $5,647 in 1999.
An agency-by-agency breakdown of the changes in federal spending, however, provides additional insight about the government's increasing enforcement and investigative roles. We have already mentioned the decline in military personnel. Measured in constant dollars this drop was substantial: from $1,034 per person in 1993 to $871 in 1999. But, accelerated in part by Vice President Gore's "reinventing government" effort, spending by many agencies not under the Defense Department umbrella, including the departments of Agriculture, Treasury and Housing and Urban Development, also declined. The EPA was down 15 percent, other regulatory agencies dropped by 29 percent, the Energy Department was off by 28 percent and NASA dropped by 21 percent.
But hold on. A few agencies bucked the downward trend. Leading this much smaller pack was the Justice Department, where constant per capita spending jumped by 72 percent.
Why is this? Well, with Clinton and the Republicans competing to outspend each other in funding the always popular "war on crime," the startling success of Justice in the budget battles was predictable. Although the Immigration and Naturalization Service (INS) and the Bureau of Prisons were among the biggest winners within the department, it is also worth noting that the Clinton Administration's FBI is larger today--both in raw numbers and in relation to population--than at any time in history, including World War II, the cold war and the period of civil disturbances related to the Vietnam War and after the assassination of Martin Luther King. Individuals listed with the occupational specialty of "intelligence officer" nearly quintupled, jumping from 224 to 1,025.
More federal enforcers and more enforcement dollars might be assumed to translate automatically into more federal prosecutions. But over the years, while the number of prosecutions has edged higher and higher, the annual number of such actions has varied: It was relatively high in 1993, slumped significantly in 1994 and then began going up again. According to Justice Department data, upon which most of this analysis rests, the prosecution count jumped sharply in 1998, to 82,071. (Because the department has withheld 1999 data from us, enforcement information about the last full year of the Clinton Administration is not now available. But court data suggest that in 1999 federal prosecutions reached an all-time high.)
§ Immigration. Immigration matters made up a major part of the recent spurt in indictments. In fact, such actions more than doubled during the Clinton years, jumping from 7,335 in 1993 to 14,616 in 1998. (Once again, court data indicate that immigration prosecutions continued their dramatic rise in 1999.) The recent jump in immigration prosecutions is the major reason that the overall number of federal court cases has increased at a faster rate than at any time since the Nixon Administration launched the war on drugs and ordered federal prosecutors to go after Vietnam War draft dodgers. The surge in immigration prosecutions followed an agreement by the Administration and Congress to step up border control efforts through the simple expedient of hiring many more INS agents.
§ Drugs. For many years the effort to combat the sale and use of illegal drugs has dominated the federal enforcement agenda. From 1993 to 1998, for example, drug cases consistently made up more than one-third of all federal prosecutions. By comparison, fewer than one out of ten prosecutions during the same period were classified by the Justice Department as involving official corruption, environmental and regulatory matters. The sharpest increases in the annual number of federal drug prosecutions came during the Reagan and Bush years. By contrast, in the early Clinton years drug prosecutions actually declined slightly and then began inching higher, reaching 30,014 in 1998. This total is more than three times the 8,938 such actions in 1981. (The overwhelming impact of the drug war on the federal system is hard to exaggerate. In recent years, for example, drugs have been the criminal offense involved for 42-45 percent of all people sentenced to prison.)
§ Guns. By contrast, there was one specialized area that went through an extraordinarily steep decline during the same period: the enforcement of the nation's gun laws by the Bureau of Alcohol, Tobacco and Firearms. Referrals by ATF for federal prosecution declined by 44 percent from 1992 to 1998. (In fairness, the court data suggest that an increase in weapons enforcement actions that began in 1998 continued in 1999.)
A key factor behind the surprising drop in ATF referrals during most of the Clinton years was a 14 percent cut in ATF criminal investigators, mandated by Congress but accepted by the Administration's strategists. Many experienced enforcement officials believe that a second important explanation for the collapse of the ATF was its 1993 raid on the Branch Davidians in Waco, Texas. Their argument: The widespread public criticism of this flawed action profoundly undermined the agency's morale and its will to enforce the law. But no one should forget that the ATF raid itself and the FBI's subsequent horrific effort to end the hostage situation were also dismal parts of the Clinton legacy.
The sharp decline in ATF referrals in the 1992-98 period became a significant political issue in the presidential campaign when the Republicans and the National Rifle Association teamed up to attack the Administration's enforcement priorities. With some legitimacy they joined in asking why Clinton used a series of shooting incidents during the period to make high-publicity requests that Congress pass new gun-control laws when his Administration was not fully enforcing the ones already on the books. Because Congress was ultimately responsible for cutting the ATF budget, the Republican criticism also contained a good dash of hypocrisy.
§ Police Brutality. Sometimes the priorities that go unchanged, the dogs that don't bark, are as revealing as those that do. One example: When local jurisdictions fail to punish brutal police officers and prison guards, the federal government has the option of bringing criminal charges against the offenders, usually under one of two laws. But for many years federal prosecutors have been reluctant to pursue this approach. During the past twelve years, federal prosecutors appointed by both former President Bush and President Clinton have obtained indictments in only 3 percent of all such matters referred to them by the FBI. (By comparison, federal prosecutors have consistently prosecuted a much larger proportion of the matters presented to them concerning another kind of government abuse--official corruption.) In 1998, for example, 48 percent of these other matters resulted in an indictment. Thus the Clinton legacy in this sensitive area simply continued the federal practice of the past quarter-century under both Democratic and Republican Presidents.
The Wheels of Justice
In addition to the specifics of what laws were or were not enforced, the data we have obtained and analyzed also highlight broader problems in the federal justice system. One concerns the startling long-term increase in the time required to complete a case in federal court. At the beginning of the Reagan Administration the median time was ninety-nine days. At the end it was 130. At the beginning of the Bush years the median was 141 days; by the end it was 160. The pattern continued during the Clinton Administration: 168 days in 1993, 205 in 1998. Although the legislature writing the laws and the judges administering the courts bear some responsibility for this explosive change, the vast discretionary powers of the prosecutors appointed by Reagan, Bush and Clinton make them the first among equals.
The doubling of federal prosecution time raises troubling management and budget questions for the Justice Department and the courts. But for those who believe in the American ideas of fairness, and for the hundreds of thousands of defendants being processed through the federal assembly line, there is a second obvious question: Can anyone doubt that justice delayed is justice denied?
The initiation of criminal charges is not the only way the government works to persuade the American people to do the right thing. A second option is for the government to impose administrative sanctions outside the courts. One of the most conspicuous users of this second kind of federal authority is the Internal Revenue Service. Fully acknowledging that IRS policies are heavily influenced by the decisions of Congress, the tax enforcement patterns of the past few years remain a major part of the Clinton legacy, especially given the vast reach of this agency.
One striking reality here is the sharp decline in all kinds of tax enforcement. During the Clinton years, the overall audit rate for individuals has dropped by half, from 0.66 percent to 0.31 percent. During the same period, corporate audits went through a similar decline--2.9 percent in 1992, 1.51 percent in 1999. The decline in the audit rate for the largest corporations--those with assets of more than $250 million--is also noteworthy. In 1992 more than half of these giants were audited. In 1999 the rate had dropped to only one in three.
As just noted, the Clinton Administration is not solely responsible for the broad degradation of the IRS's enforcement presence. During the past few years conservative forces in Congress have mounted an intense rhetorical attack on the agency, which resulted in budget cuts requiring a reduction in the number of expert revenue agents who have the skills to audit upper-income and corporate tax returns. The tax man has in fact been taking it on the chin for a long time. After a substantial buildup of the IRS during the Reagan years, full-time staff is now 31 percent smaller than it was in 1988, when the cutbacks began.
This decline, and other factors that hit the agency in the early 1980s, have resulted in a dramatic shift in how the American people experience the IRS. In fact, the proportion of taxpayers now required to go through the traditional "face to face" IRS audit is five times lower than it was in 1981.
Perhaps the most surprising Clinton-era development occurred last year when--reversing past practice--low-income taxpayers suddenly stood a greater chance of being audited than high-income taxpayers. Because wealthy taxpayers obviously have more to hide from the government and better opportunities for hiding it, the IRS has historically focused its audits on the rich. In 1999, however, the audit rate for those making $100,000 or more was only 1.15 percent. At the other end of the scale, the rate on simple returns reporting $25,000 or less was 1.36 percent.
The data suggest that the federal government President Clinton leaves behind has become less able to serve the traditional needs of the American people but better equipped to investigate and prosecute them. Clinton gave moving speeches about his concern for African-Americans. But when it came to dealing with brutal police officers--a matter of special concern to black Americans--his government followed the minimalist approach of the Reagan and Bush administrations. After almost every major shooting incident of the past few years, Bill Clinton called for new gun-control programs. But when it came to enforcement, his government seemed to lose its way.
Assuming President-elect Bush succeeds in getting John Ashcroft as his Attorney General, the question is just how much of the current policy this outspoken conservative will actually want to change.
But hold! Isn't it the demand of enlightened people that all within these borders have a right to work without being hassled by the INS or kindred state agency? You can argue whether Linda Chavez treated Marta Mercado, her sometime Guatemalan employee, well or badly, and that poor treatment might disqualify her as Labor Secretary. But the spectacle of Democrats like Senator Tom Daschle solemnly denouncing Chavez for giving work to an undocumented Latina was nauseating.
Here's Chavez, who has appalling views on almost every issue relevant to the job for which she was briefly nominated, and the Democrats finally home in on her for the one decent deed on her record, if you believe the testimony of Marta, to whom Chavez appears to have behaved well.
Chavez has been cruelly taken from them, but what an immense favor Bush/Cheney did the Democrats by putting up Ashcroft and Norton! It's hard to stir up liberal passions over Powell at the State Department or Rice as National Security Adviser, or even O'Neill at Treasury. How could you be worse than Madeleine Albright or Samuel Berger? And who cares about O'Neill, when the effective ruler of the economy is over at the Fed?
But with Ashcroft scheduled for the Justice Department there are rich political and fundraising opportunities for the Democrats, berating the Naderites, We told you so, and painting lurid scenarios of the Klan Grand Wizard taking up residence in the DOJ. Here comes the Beast: Ashcroft, the foe of choice; Ashcroft, the militia-symp; Aschcroft, the racist hero of the old Confederacy. What can you say for the guy, except that he's probably marginally to the left of Eminem, great white hope of the rap crowd and currently in line for four more Grammies.
But will Ashcroft be effectively worse than Attorney General Janet Reno? This time eight years ago she was four months away from incinerating the Branch Davidians at Waco and on the edge of a tenure that has seen her fervent support for the "war on drugs," a k a war on the poor, most especially blacks; her contributions to the crime bill of 1994 and the Antiterrorism and Effective Death Penalty Act of 1996; the targeting of minority youth; her complaisance toward expansions in the power of the prosecutorial state against citizens; and onslaughts on the Bill of Rights? It's a tough act to follow.
The environmentalists see similar rich opportunity with Gale Norton, graduate of the Mountain States Legal Foundation, an anti-environmental think tank based in Denver, Colorado, headed by James Watt, greatest fundraiser for environmental causes in our history. No doubt about it, Norton is scarcely nature's friend. Her dreams are of Exxon's Grand Canyon and Disney's Yosemite. But once again, we should retain our perspective.
Consider, for example, Bill Clinton's exit order, banning roads and logging across 58.5 million acres of public land. Then look at the exceptions: Clinton's ban excludes timber sales now in the pipeline, which can be grandfathered in over the next six years. Other huge loopholes include an OK for logging for "ecological reasons," like firebreaks and deer habitat. There's also an OK for roads for mining and grazing allotments, and for fire control. In all, the order envisages a less than 3 percent reduction of total timber sales in national forests, which isn't much.
If she's smart, Norton will reverse the order simply by choosing one of the other options offered in the environmental impact statement that formed the basis of Clinton's order.
There's likely to be a big fight over the Arctic National Wildlife Refuge, where outgoing Interior Secretary Bruce Babbitt has just done Norton and the oil industry a big favor by advising Clinton that to designate ANWR a national monument would be "a meaningless gesture" that would invite the Republicans to reverse all such designations made in Clinton time. You can read this as a startlingly forthright admission that national-monument status doesn't mean much, which is true; also that Babbitt is as gutless as ever. To have made ANWR a national monument would have drawn a line in the sand, or in this case, the snow, a bit deeper, and made the forthcoming onslaught on ANWR a little tougher for the Bush/Cheney crowd.
What else can Norton do that Babbitt hasn't already set in motion? Not much. Last year Babbitt's Fish and Wildlife Service put a moratorium on the listing of endangered species, and he's smiled on the privatization of public assets through land trades, whereby timber corporations get old growth and we get the cut-over terrain. Salmon protection? The Clinton Administration has let the Republicans off the hook on that one, decreeing that the dams on the Snake River won't be breached. Oil leasing off the continental shelf? For Bush/Cheney it would be political suicide. Reagan tried and had to back off. Norton will go after the National Environmental Protection Act, but here again Babbitt and Gore paved the way, with their habitat conservation plans, which have ushered so many corporate foxes into the coop.
Over at EPA, Christine Todd Whitman may be bad, but she's no James Watt; and at USDA could anyone be worse than Dan Glickman, friend of factory farms and saboteur of organic standards?
So, all in all, the Bush/Cheney directorate has done a fine job of rallying the Democrats, just as the Democrats, with their weak-kneed surrender to the Florida putsch and talk of bipartisanship, have given ammunition to the radicals denouncing the two-party consensus. For the activists, there's plenty of opportunity. Militant green groups, including the reinvigorated Greenpeace, are fired up, and right here on the doorstep is the prospect of a national fight for microradio, whose future has been sabotaged by the National Association of Broadcasters. The NAB, with the complicity of that darling of the Democrats, NPR, shepherded through a legislative rider late last year that outlaws new low-power stations in most urban areas.
So we're back where we were in the dawn of Clinton time, with courageous people asserting their rights and defying corporations and the state. What else is new? Welcome to Bush/Cheney time. The basic map hasn't changed.
Why the hell isn't Al Gore--instead of me--doing this?
It's 11:30 in the morning, the third day of the new year, and that's what I am thinking as I sit in a bland conference room on the eighteenth floor of the Stephen P. Clark Government Center in downtown Miami. I am examining the infamous Miami-Dade ballots, the "undervote" punch cards that did not register a presidential preference when processed by tabulation machines on November 7. There were about 10,500 of these ballots (1.6 percent of the votes recorded in Miami-Dade) and up to 60,000 undervotes throughout the state. I've been at it--staring at one ballot at a time--for about two hours. The thrill is gone. The eyestrain has begun.
Only a few people are engaged in this history-making though drudgery-ridden exercise. Six organizations are paying the county $10 an hour for the privilege of reviewing the ballots. Those bothering are an accountant-reporter team from the Miami Herald (which is examining Florida undervotes in all but four small counties), a reporter from the Palm Beach Post, officials from the state Republican Party, a reporter from Inside Edition, several accountants retained by Larry Klayman's Judicial Watch (a conservative outfit that has filed dozens of lawsuits against the Clinton Administration) and yours truly. No Democratic Party officials are participating, and none of the media biggies have shown. A week later, the Wall Street Journal, the Associated Press, the New York Times, the Washington Post and others--rather than mount their own reviews--would form a cost-sharing consortium to examine the state's undervotes and overvotes. (The latter are ballots that were recorded bearing more than one vote in the presidential race; the state Supreme Court recount order did not extend to these ballots.)
There is a whimper-not-a-bang feel to the occasion. We sit at individual tables, and temps hold up the ballots. We are not allowed to touch the cards. We gaze at them, searching for dimples, bumps, bulges, punctures, jagged holes, pen marks, pinpricks, rips and hanging, swinging or dislodged chads. And we can judge the ballots entirely as we choose. As Miami-Dade officials repeatedly note, this is not a "recount"; it is an "inspection."
During three days of review, I will examine and consider the meanings of 3,409 ballots from precincts--including African-American neighborhoods that backed Gore and Cuban-American areas that went for Bush--that split the Gore/Bush vote 55 percent to 45 percent in Gore's favor. (The full countywide tally divided 53.2 to 46.8 percent Gore's way.) And the numbers? How many votes did Gore pick up? Would he have won Florida--and taken the nation--had the Miami-Dade recount not been thwarted by, first, the county elections canvassing board and, then, five Republican-appointed members of the US Supreme Court? Well, not so fast. I'll get to the totals. But here's a teaser: The results of this painstaking manual review contradicted the melodramatic spin of both the Bush camp and the Gore gang. The fundamental assertions pushed by each side--for the Bushies, it was that manual recounts are arbitrary acts of folly; for the Gore crowd, it was that if you count them, he will win--were undermined by these castaway ballots.
I and the other journalists arrived at the government center hoping to gather hard-and-fast answers to the murky questions floating in the wake of the messy presidential election. The Republican officials are present to keep an eye on the reporters. They are collecting ammunition, in case anyone in the media declares that Gore nets the 538 votes he needed to win the state. And Klayman is grabbing television face-time. As the review begins, he raises a fuss for the TV news cameras. He has asked that his accountants be allowed to sit at tables and review punch cards alongside the other participants. He claims he wants to speed up the process. It seems he is more interested in monitoring the inspections of others. David Leahy, the county elections supervisor, rejected the request, and Klayman huffs that the county "must have something to hide." His accusations are curious. Leahy, who holds a nonpartisan position, is a member of the three-person canvassing board that shut down the Miami-Dade recount the day before Thanksgiving, after khaki-clad Republican aides flown in from Capitol Hill mounted a thuggish protest on the nineteenth floor. The board's move enraged Democrats. And during the postelection period, Leahy consistently opposed conducting a manual review. (He says he did not believe a Miami-Dade recount would produce enough votes to alter the statewide results.) So why is Klayman giving him a difficult time? Moments later, Klayman informs me the county is worried because "there are irregularities here." He maintains that I will find such suspicious-looking ballots as punch cards with "chads scotch-taped back in."
As I proceed with the inspection, I do not encounter fraudulent-looking ballots, but I do see cards difficult to explain. This is what I am looking at: a seven-and-three-eighths by three-and-a-quarter inch card of heavy paper stock with twelve vertical rows of numbered boxes running from 1 to 312. Voters were instructed to insert this card into the plastic sleeve of the Votomatic machine. Then they turned through a ballot book that was attached to the device and that listed the various contests and candidates. Every time a page was flipped a different portion of the card was aligned beneath holes in the sleeve. To make their selections, voters stuck a sharp stylus into a specific hole--designated by arrows in the ballot book--to punch out the square-shaped chad of the appropriate box on the card. The first row on the card corresponded to the presidential race, and the candidates were assigned even-number slots. If a citizen voted for Bush, he or she broke the chad in box number 4. For Gore, it was box number 6. For libertarian Harry Browne, it was box number 8. And so on. Then the ballots were tallied by machines that counted the holes in the cards.
At my table Ruth Smith, a 76-year-old retired school aide from Queens, lifts each card. She tells me her son-in-law-the-attorney represents Mark Penn, Bill Clinton's pollster, and her grandson also works for Penn. (If Klayman or the Republicans find out that a woman this close to Clinton's most important adviser is handling the ballots--oh my!) The first eight ballots contain no marks on the presidential row. Then I spot several cards with the chad in the 7 box punched out. "What could this mean?" I ask Ivy Korman, the elections department official supervising the public inspection. "Don't ask us," she says. "We have no idea." Immediately I spot other clearly punched 7s and, soon after, a bunch of 5s. These boxes do not correspond to any selection in the ballot book. (More on this mystery later.) And there are many ballots that have no vote on the first row but are filled with well-defined holes elsewhere. Are these from voters who decided not to stab for a presidential candidate but who participated in down-ballot races? Many ballots contain not a scratch, hole, dent or bump. Did people take the trouble to go to the polling place and then not vote in any contest? The lines at voting sites were long, and some citizens left before reaching the Votomatics. Under the rules, their pristine cards were collected and placed with ballots that had been punched. Other ballots are more baffling: those with pinpricks across the portion of the card that does not match any contest in the ballot book. Some with a clear punch-out at 9, 11 or 13--or all three. Cards with punch-outs forming patterns--such as a straight line across the ballot--that are not in sync with actual races. Not everyone followed instructions. Are these willful political statements? Artistic expressions? Acts of ignorance? Or system-caused errors?
Within minutes I come across the ballots that drew me to this conference room. Here's a 6 that is plainly broken. The chad remains in place, but there is a hole along one side of it. How could this not have been a vote for Gore? Chads are sturdy beasts. They do not break on their own accord. Spend a moment with a ballot card and you will see that the Republicans prevaricated during the recount-a-rama when they claimed that ballots are fragile and handling corrupts them. As Leahy--no friend to the Democrats--says, "You can run a ballot through a reader 100 times and you'll never get any chads inadvertently punched out. The ballot won't disintegrate on the basis of normal handling." The hole on this ballot had to have been placed there. Intent is clear. And Florida law--and the statutes in many other states--says intent is what counts. I judge it an unrecorded Gore vote.
But a few ballots later, I am peering at a card with a slight indentation at box 6. No hole. No penetration. The perforation has held fast. What to do? It doesn't look like a manufacturing error. Did the voter--as some GOP spinners speculated--only consider voting for Gore and then, struck by remorse, withdraw the stylus before executing the final thrust? Unlikely, but possible. Then I spot a ballot with a sharp puncture mark in the chad for box 4, but the chad did not detach and no light shines through. Standards, I need standards.
It is not until I examine a couple of hundred ballots that I can construct guidelines. Regarding the 4s and 6s, I divide them into three categories. The first is for when the chad is absent. Why hadn't these cards been counted as votes? Perhaps the reading machines made a mistake or a hanging chad dropped after the card was tabulated. Also in this category, I place easy-to-recognize holes--puncture marks above the chad, openings that are partially blocked by swinging chads. The second category is reserved for marks that definitely seem a product of an effort to punch the card--deep indentations, punctures that allow a pinhole of light to pass, pushed-back chads that are perforated at spots. A fair-minded person looking at these cards would have to admit deliberate action was responsible for the disturbances. I also toss into this category my favorite anomaly: revolving-door chads. These are cards in which the chad completely turned around but remained tightly in place. The dot is now on the back side of the ballot, which likely means that a push of the stylus point spun the chad, as if it were on an axle. As for category three, it is for ballots with a small but discernible blunt or sharp bulge on the chad--a slightly pregnant chad. These marks are debatable. I record these votes, but I would not include them in a count.
As I continue, I find that my standards are not in accord with the rules adopted by the canvassing board during its aborted manual recount, which scrutinized the undervotes from 140 of the county's 614 precincts. (That review resulted in a net gain of 157 votes for Gore, but the precincts examined were heavily Democratic.) The evaluations of that recount were written on the back of the punch cards, and I see many ballots counted as votes for Bush or Gore that would not pass muster under my standards. On a few of these ballots, the barest bulge--do I see it or am I imagining it?--caused the board to award it to a candidate. (Of course, the lawyers of the other candidate challenged the determination.) These close calls are not irregularities; they are judgments. But the point is obvious: A hand recount should proceed under tight rather than loose standards. Especially in Miami--which has a recent history of vote fraud. During a break, a local reporter regales the out-of-towners with basic facts of Miami-Dade: "We account for 90 percent of the immigration fraud in this country. Twenty percent of our economy is underground. Twenty percent of our water is stolen, through meter bypasses. This is the way we do things here." Several feet from the entrance to the conference room is a sign, copies of which are posted by the Commission on Ethics and Public Trust throughout the government center, that reads, We Care About You! If You Have Information About Fraud, Waste, Corruption in Our Community, We Want to Know. Call Us.
By the end of Day Three, with my eyes screaming, I realize that clear answers will not be forthcoming. Republicans were correct to the extent that an attempt to evaluate certain punch cards does place a reviewer in the position of mind reader. But they were wrong in dismissing the value and legitimacy of hand recounts. It would not be difficult to create strict guidelines for a manual review. Slap each ballot on a light table, see if a beam passes through whatever mark is there. Count any ballot with a partially dislodged chad. Skip the subtle bumps and the maybe-it's-something impressions. And a manual recount of the undervotes need not have taken forever. The Klayman accountants, working at two tables, finished their review of the Miami-Dade ballots in less than three days (and Klayman did not immediately announce any findings). A hand review in Miami-Dade and other counties throughout the state--not only the four counties where the Gore team requested recounts--could have led to a more accurate tally without trampling on anyone's right to due process and equal protection.
Would such a recount have rewritten the outcome? Maybe not. After sifting through a third of the Miami-Dade undervote--a large-enough sample on which to reach conclusions while avoiding eye damage--I discover that 59 percent of the ballots contain no marks for President. Adding up the ballots in categories one and two, I unearth 119 votes for Gore and 114 for Bush. A measly gain for Gore. If category-three votes are included--and I wouldn't advise that--Gore's pickup increases by twelve. (After reviewing 4,000 of the Miami-Dade undervotes, the reporter from the Palm Beach Post discerned a modest boost for Bush.) Extrapolate these figures to the rest of the county, and Gore falls short of erasing Bush's statewide lead.
These numbers say nothing about other counties--where various news organizations have been and will be studying undervote and overvote ballots. And there's another nettlesome matter to consider: those 5s and 7s. In my sampling, 7s beat 5s 389 to 214. It seems reasonable to assume that most 5s were meant to be votes for Bush and most 7s for Gore, for there appear to be only two possible explanations for all these missing-but-unassigned chads. Either voters mistakenly placed the punch cards on top of the sleeve in the Votomatic (doing so lined up chad 5 with the Bush arrow in the ballot book and chad 7 with the Gore arrow) and then punched away, or there was a mechanical problem with the voting machines that caused hundreds of cards to misalign within the devices. Analyzing data from the county, Anthony Salvanto, a faculty fellow at the University of California, Irvine, found 1,012 7s among the Miami-Dade undervotes and 696 5s. Leahy denies that machine error--as opposed to voter error--could have produced these results, but Salvanto identified hundreds of undervote ballots where a citizen consistently punched unassigned holes one spot below those of Democratic candidates--as if the voter had attempted to vote a straight party line and had been undone by the machine. Add the 5s and 7s into the picture, and Gore bags enough votes to put the statewide numbers into question. But what judge would have ordered the inclusion of these votes?
My own review does not produce an unambiguous shift in the Bush/Gore count. Othere media recounts may well do so. But it indicates that accurate hand reviews could have been conducted--and that they had the potential to address, if not resolve, some of the doubt that shrouded the election. When the US Supreme Court halted the Florida recounts, a combative Justice Antonin Scalia wrote, "The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." That is, the American public had to be protected from information. The undervote ballots--though uncounted in the official tally--do speak, and they tell a story: of an election probably decided in part by voting-technology problems, and of election results that cannot be considered to represent definitively the will of the people who voted. These punch cards, which Scalia, Bush and even some time-to-move-on Democrats do not want to dwell upon, ought to cast a long and dark cloud.
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