How Unpredictable Could This Election Be? Five Lessons From the Florida RecountOctober 28, 2020
It’s not what they teach you in school about the workings of American democracy, but in the year 2000, it seemed distinctly possible that the entire presidential election would turn on whether or not a single government office in Tallahassee, Florida, was open on a Sunday.
The race between Al Gore and George W. Bush had deadlocked, and Florida’s 25 electoral votes would determine who won. The all-important office in Tallahassee belonged to the Florida secretary of state, whose duties included certifying Florida’s official vote total. At the request of the Gore campaign, two of the largest counties in the state—Miami-Dade and Palm Beach County—had been racing to recount their ballots before a court-ordered deadline.
Things got complicated because the way the Florida Supreme Court set the deadline was a bit squishy. In an apparent gesture toward flexibility, it said new vote totals had to be submitted by 5 p.m. on Sunday, Nov. 26—unless the secretary of state’s office was closed that day. If it was closed, the counties could keep tabulating votes until it opened the following morning.
The Florida secretary of state in 2000 was a Republican politician named Katherine Harris, and the squishy deadline gave her a choice: She could either keep her office open through the weekend, triggering the Sunday evening deadline, or she could adhere to normal business hours and collect the final tallies on Monday morning, giving the counties an additional 16 hours to count votes.
Harris opened on Sunday. And when it turned out that Palm Beach County needed more time to get through all its ballots, the answer from Harris’ office was “no.” Soon thereafter, she presided over a certification ceremony that did not take into account Palm Beach County’s new count—which would have added about 200 Gore votes to his Florida total. Harris and her colleagues in the secretary of state’s office were choosing to certify a count they knew was incomplete.
In the end, the extra votes in Palm Beach wouldn’t have swung the election for Gore. But the entire race turned on just 537 votes—and Harris’ Sunday opening was just one of the tiny, improbably consequential factors that could have tipped the balance.
As absurd as it is to think an election can be decided by whether an office is open on a Sunday, it’s a kind of absurdity that is baked into the American electoral system, and which Americans could well confront again next week—quite possibly in multiple states. The choice between Bush and Gore turned out to be monumentally important to the nation, and even 20 years later, there’s something haunting about the idea that a bureaucratic quirk could have made that decision for 300 million people.
We encountered the office-opening story while making “Fiasco,” a podcast documentary about the 2000 election. And the deeper we got into our research, the more we realized that it wasn’t unique. Our goal with “Fiasco” has always been to examine major historical events, and forensically identify the turning points, decisions and delusions that determined their course. The 2000 election, and the Florida recount in particular, offered a storyline with an infinite number of turning points. Because the vote margin was so small, every fork in the road looked plausibly decisive—not just in retrospect, but at the time.
This year, the situation could be far more extreme.
What does the 2000 recount have to tell us about 2020? A contested election, we realized, is an unmapped minefield of a million small things that could swing the result, or keep it from being resolved for days, weeks, or even longer. Whether or not Katherine Harris’ office would be open on Sunday, November 26, was far from the only thing that decided the 2000 election. But it did make a difference, despite being rather far removed from what you’d think would have been the most important question: Who got more votes in Florida?
This year, with the Covid pandemic already scrambling our voting procedures, a president who has spent months calling ballots into question and two parties already engaged in high-stakes election litigation, the sense of chaos that enveloped Florida in 2000 could multiply across the entire system. Here are some reasons why.
1. Actually, There Is No System
The American system for electing a president is way more fragile and convoluted than we understood before we looked under the hood of the 2000 recount. One fundamental reason for this is that there actually is no system. There are 51 of them, because each state (and Washington, D.C., which also sends electors) has different election laws—but also, more accurately, there are more than 3,000 of them, because each county in each state has its own set of local specifications.
In practice, this means a) there are a lot of rules to keep track of, and b) it can be difficult to anticipate which of those rules will become important once the votes start being tallied. Case in point: One Gore staffer told us that after Election Day 2000 he was dispatched to Wisconsin, not Florida, because at that juncture it seemed possible that Wisconsin was heading to legal overtime as well, or instead. If it had been, we would have had to make a whole separate podcast.
Once it became clear the ballgame would be played and won in Florida, all eyes were on the intricacies of its recount law. Under what circumstances was a recount allowed? Under what circumstances was it required? These were questions the Gore campaign had to answer in legal briefs and courtroom speeches, with reference to arcane Florida statutes, when they asked for hand recounts in four specific Florida counties. Each of these counties was run by its own three-member “canvassing board,” each of which handled the recount requests differently and was subject to different pressures.
Before Palm Beach butted up against Harris’ unbending deadline, the canvassing board there had to contend with the problems caused by its punch-hole “butterfly ballot” design, as well as a unique, county-specific standard for deciphering the voter’s intent if a ballot was ambiguous. Not every voter punched out the holes completely, and the argument over just how cleanly a hole had to be punched became, for a time, a topic of intense national interest.
Oh, and the counties set their own vacation schedules, too. In a move that seemed like a good idea at the time, Palm Beach decided to give its counting team the day off on Thanksgiving—which meant it lost about a day on the count, and missed its deadline the following Sunday. As with Harris’ decision to open her doors, there was a decent chance the presidency could have depended on that tiny decision.
2. Election Law Can Contradict Itself
Elections are at the very heart of democracy, and they’re fairly predictable in how they work, so you’d think election law would be totally locked down and straightforward, like a stable kernel of computer code.
Not so. One of the most surprising subplots we learned about had to do with a contradiction within Florida’s election law—a seemingly minor discrepancy that suddenly became a pivotal issue. In 2000, Florida state law set a seven-day deadline for counties to finalize their vote tallies after Election Day and submit them to the secretary of state. Usually that wasn’t an issue. But when it became one, lawyers for the Bush and Gore campaigns discovered there were two laws that addressed this deadline. One said the secretary of state “shall” ignore late election results, but another, more recent statute said the secretary of state “may” ignore late election results, but didn’t have to.
That disagreement was ultimately settled by a state circuit court judge, who ruled in favor of “may” and was upheld by the Florida Supreme Court. These kinds of inconsistencies can clog the legal system, slow down the recount timeline and leave room for partisan officials to make judgment calls that rob the process of public legitimacy. Which leads us to the other big surprise we encountered …
3. Good PR Can Matter as Much as the Law
During any election (let alone a contested one), the two major-party campaigns try to spin every development to their advantage. But the surprising thing about the PR battles fought during the 2000 recount was that they weren’t just about winning hearts and minds—they actually had a concrete, measurable impact on the vote totals as they evolved after Election Day.
The clearest example might be the fight over overseas absentee ballots—or as the GOP started calling them, “military ballots.” Republicans argued that incomplete absentee ballots sent by active-duty military voters (who were expected to favor Bush) should be counted even if they were missing postmarks. That wasn’t consistent with the legal arguments they were making about not-quite-perfect ballots from Democratic-leaning counties, which the Bush campaign wanted to subject to strict scrutiny. But the apparent contradiction didn’t matter. The all-out media blitz persuaded six Florida counties to accept unpostmarked overseas absentee ballots, yielding Bush an extra 288 accepted ballots without a single court having to rule in his favor. Add that to Gore’s uncounted Palm Beach votes, and you’re getting close to Democratic counter-history.
4. When in Doubt, a Riot Can Work
And then there was the Brooks Brothers Riot. On November 22, 2000, the Miami-Dade canvassing board was set to begin a countywide hand recount of ballots. Part of the way through, GOP recount observers were horrified to discover that the canvassing board had decided to change the parameters of its recount to save time—and that its members were absconding to a private room to avoid interruption. In response, a group of protesters that turned out to be composed mainly of GOP operatives from Washington decided to engage in a little civil disobedience, and crowd the government building where the recount was taking place. Several dozen protesters—mostly clean-cut men wearing dress shirts—gathered outside the room where the counting was taking place, chanting “Let us see the ballots!” Some banged on glass and tried to storm the room.
Did they have an effect? Very likely so. Soon after the crowd was dispersed, the Miami-Dade canvassing board announced that, due to concerns about the secretary of state’s certification deadline, it was suspending its recount—which had so far yielded a net gain of about 150 Gore votes—and reverting to Miami-Dade’s original vote total. Partisans disagree about whether the protesters were trying to protect the democratic process or prevent it. But in any case, Miami-Dade never restarted its recount, and the possibility of Gore picking up enough votes to overtake Bush grew even more remote—all because of a successful, semi-spontaneous stunt put on by a group of motivated Republicans.
5. The 2000 Election Didn’t Even Test the Limits of Crazy
In 2000, because of the Supreme Court’s ruling in Bush v. Gore, and Gore’s willingness to accept it, neither side ended up having to engage with the weirdest, most confusing part of the American electoral system: the Electoral College. But the campaigns were thinking about it, and their plans for what to do if things did go that way were some of the most absurd we uncovered.
The Electoral College is mentioned in the Constitution and elucidated in U.S. code, but the rules for how you seat presidential electors can be ambiguous and confusing, especially if the winner isn’t settled for weeks. And so in Florida, as the date for seating electors neared—it was December 12—both sides started devising elaborate contingency plans in case the process went haywire.
Florida Republicans started prepping for an end run in which the state’s GOP-dominated Legislature would simply seat Florida’s 25 Republican electors if the vote total still wasn’t settled—or wasn’t settled to their liking?—by the deadline. Florida’s then-Senate President John McKay told us he dreaded doing it. He knew it would look like the Republicans were unilaterally seating Florida’s electors without regard for the popular vote, and while he believed his party was acting with integrity, he didn’t want to give future candidates, who might not be so honorable, “a blueprint for ill-purposes.”
Meanwhile, Democrats were devising a potential Hail Mary of their own to respond to a possible end run by the Florida Legislature. They called it “Plan X”; Gore adviser Ron Klain described it to us as their “most extreme thought.” Plan X was based on a creative interpretation of Florida state law, which said the state’s electors had to gather in the statehouse to cast their votes for president. But Florida technically had two statehouses—the official, functional one, and an old one that had been retired in 1978 and converted into a history museum. Plan X called for reserving the old Florida statehouse, and staging a simultaneous ceremony of Democratic electors there. The votes of those electors would be sealed in an envelope just like the Republican ones, and forwarded along to the U.S. Senate for the official processing of electoral votes. By law, the person who presides over that official electoral college count—and the person who could theoretically decide which of the two envelopes to open—was the president of the Senate. Also known as the sitting vice president. Also known as Al Gore.
Given the expectation this year of a longer-than-normal expected timeline for counting absentee votes in some states, it’s not hard to imagine the 2020 election bumping up against that Electoral College deadline. (This year, electors meet on December 14.) And that could mean a whole new host of absurd plans to game, or weaponize, the Electoral College.
Oh, also: In case you think 2000 is ancient history, keep in mind that Klain—the Gore staffer who told us about Plan X—is currently a senior adviser on the Biden campaign, and reportedly the frontrunner to become Biden’s chief of staff.
There’s something else that worries us as the country hurtles toward Election Day 2020. It has to do with the putatively neutral government servants who are supposed to protect the process from being warped by partisans—many of whom we interviewed for “Fiasco” about their roles in the drama nearly two decades ago.
It’s not just the judges and Supreme Court justices who are meant to play this role. It’s also administrators like Katherine Harris, who, while openly aligned with the Republican Party, went to great pains to portray herself as an apolitical actor who was just trying to follow the law. Harris hit the same notes when we interviewed her in 2019. And, as far as we could tell, she really believed it.
When we asked Harris why she was unwilling to grant Palm Beach County 16 more hours to count its ballots overnight that Sunday—particularly when the Florida Supreme Court had indicated it would be fine to get the vote totals on Monday morning—Harris challenged the premise of the question.
“They said, originally, Friday. And we said we’d stay open until Sunday to give people more time,” she said—a characterization that left us flabbergasted, because the Florida Supreme Court hadn’t said anything about Friday. Somehow, Harris remembered giving the counties more time to finish their counts, not cutting them off at the earliest moment she could legally and justifiably do so. It seems that 20 years later, Harris has fully revised the details of the Palm Beach recount to make them an illustration of her integrity and fairness. “We had to certify at 5,” she said, “and we chose to stay open so they would have the time. So you and I disagree on that.”
The fact that Harris misremembered the central takeaway of what happened—and dismissed the facts as a matter of opinion—made it clear to our team that perhaps the most powerful force at work in Florida, and a force we should all expect to reassert itself in 2020, is that of self-justification and self-deceit. No one will want to be responsible for stealing the election in small ways or big ones. And after the dust settles, everyone will be confident that they have done no such thing.