America Still Sucks At Voting, 16 Years After Bush v. Gore

And it deeply pains Al Gore's top aide to see it.
The election between these two guys was a mess. But we haven't really improved all that much since then.
The election between these two guys was a mess. But we haven't really improved all that much since then.
Chris Hondros via Getty Images

The 2016 primary has seen its share of voting day outrages, from onerous voter ID laws to questionable voter purges. In Arizona, residents waited in line all day to vote; in one county, voting locations were cut from 200 to 60 spots. An election official blamed the residents, saying they should have voted absentee.

America remains terrible at making voting easy, 16 years after collectively pledging to get it right.

Little has changed since the fall of 2000 and the unimaginable presidential election results between then-Texas Gov. George W. Bush and Vice President Al Gore. With the presidential race in the balance, Florida showed just how haphazard and unjust voting can be; the courts -- in decisions to extend the recount and, more controversially, to ultimately end it -- made clear that campaigns can and do extend into the judiciary.

On the day of the election, Ron Klain, who handled rapid-response with the Gore campaign, had been stationed at their Nashville headquarters (the site had been an old mortuary). The campaign’s data had actually showed that it was likely that Gore would win the Electoral College vote but not the popular one. It fell to Klain to craft talking points if the campaign’s prediction came true.

As Klain told The Huffington Post’s "Candidate Confessional" podcast, no one anticipated the need for a recount. “The idea that thousands of votes would affect a presidential election seemed far-fetched to almost any human being on the morning of Election Day 2000,” he said.

Klain was a 39-year-old lawyer who’d been forced out once by the Gore team during an early campaign shake up. He worked inside the mortuary's kitchen. But by the end of the very long night, he was preparing to fly down to Tallahassee, Florida, to take command for the campaign. He told his wife he’d be home by that Saturday.

”We didn’t really know what we were going down there to do,” Klain said.

Most close elections sort themselves out in the first day or two. Someone turns up a missing box of ballots. An election official discovers a misplaced decimal point. The nail-biter turns out to be rather uneventful.

It didn’t take Klain long to figure out that this election wouldn’t be coming to a clean, prompt conclusion, that there were multiple irregularities to figure out and perhaps contest. Palm Beach County's butterfly ballot design had so confused voters – many of whom were elderly – that they ended up voting for Pat Buchanan when their ballots had been meant for Gore. A bunch of counties threw out votes.

And then there were the shenanigans the Gore campaign wouldn’t even know about until it was too late. Eighteen counties failed to do the required automatic recounting (the technical term is "recanvass") -- a massive error covering more than a quarter of all votes cast on Election Day. As Jeffrey Toobin noted in his book Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election, this failure could have meant a big swing in Gore’s favor.

“In Lake County, which did not run its ballots through the machines, the Orlando Sentinel found 376 uncounted ballots clearly intended as votes for Al Gore -- and 246 uncounted ballots showing clear votes for George W. Bush,” Toobin reported. “The swing in just this one county -- where Gore would have netted 130 votes -- illustrates how important a true recount might have been.”

George W. Bush at his inauguration in 2001.
George W. Bush at his inauguration in 2001.
Douglas Graham via Getty Images

Still, Bush’s lead would dwindle to a few hundred votes. Meanwhile, Gore’s team had identified four counties that had issues and protested the results in each —Broward, Miami-Dade, Palm Beach and Volusia. The battleground was county election offices. The mission was simple: analyze every ballot and those infamous chads -- dimpled or half-torn -- and decide whether there were votes that weren't counted but should have been.

“I was nervous because the stakes were incredibly high. ... I was nervous because every day the forces were aligned to try to shut us down, to end the recount,” Klain said. “There’s tremendous pressure to end the recount -- pressure from people in our own party too. I mean, [former Senator] Bill Bradley went on TV and said Gore should give up. And [former Labor Secretary] Robert Reich went on TV and said this was kind of crazy. We had a lot of pressure from a lot of people saying like, ‘It’s time for this to end,’ and our main goal was to just to kind of keep it going.”

Though the fate of the presidency rested on the outcome, Klain said he didn't view his job as inherently political. The theory of winning from the perspective of Gore's team was more about math and election law and not so much shaping public opinion. The Bush team saw it differently, deftly working the media and local officials to paint the opposition as sore losers.

"I think that was a mistake we made," Klain conceded. "We viewed it as more of a legal thing where we were trying to ascertain what the proper count of the votes would be. The Bush folks took a more political approach. They saw it as more of a political war.”

Of course, Bush and Co. had a number of other factors in their favor too. The candidate's brother Jeb Bush happened to be the governor. Florida’s secretary of state, Katherine Harris, happened to have co-chaired George Bush's election efforts in Florida. GOP operatives, white-shoe law firms and Tallahassee opportunists understood where the power inside the state resided. Many were reluctant to give Gore a hand.

"They ran the state," Klain said of the Bush campaign. But, he added, they had a more important advantage: "They were ahead."

As reported by Toobin, the Bush team, led by former Secretary of State James Baker III, relied on all manner of stall tactics to thwart Klain’s efforts. They used court subpoenas to prevent officials from counting votes and at one point, Toobin wrote, “the Bush forces in Broward accused Democratic observers of eating chads.”

“The Bush people just wanted to shut the thing down. And the only way to change their view on shutting the thing down was to have the count go from us being behind to us being ahead,” Klain said. “And our view always was if you could ever get us ahead then all the sudden the Bush people would need to have more votes counted. Their whole perspective on counting or not counting would change once they were behind.”

“The Bush people just wanted to shut the thing down. And the only way to change their view on shutting the thing down was to have the count go from us being behind to us being ahead.”

- Ron Klain, Al Gore's top advisor during the recount

But the sides never ended up flipping. The night before the Supreme Court’s decision, Florida’s highest court had ordered a recount in all counties. The recount had begun the following morning. “We were gaining votes,” Klain said. “We thought we would probably be ahead by late afternoon. ... It was all good.”

But then the Supreme Court stepped in and ordered the recount to end on the grounds that it violated the Equal Protection Clause to have different recount standards in different counties. Bush remained in the lead.

“You could have knocked me over with a feather,” Klain said. “The idea that the court would issue an extraordinary order to stop the counting of ballots on the theory that counting votes did irreparable harm to George W. Bush was an astonishing idea.”

A comprehensive examination of the ballots showed that the court, in the end, may not have thwarted a Gore victory -- especially if the recount was just in the four disputed counties the vice president had originally challenged. A group of media outlets did find that if there was a full statewide recount of rejected ballots, Gore may have won.

While the outcome, to this day, remains painful for Klain and Democrats, there was a hope that, at minimum, the Florida recount would spark meaningful reform in how elections are conducted. The problems in Florida were so vast -- The New York Times Magazine reported that some 180,000 votes were rejected because of poorly designed ballots or legal challenges, while three times as many discarded ballots came from black voting precincts -- that changes seemed inevitable.

But in many respects, things have only gotten worse. New voter ID laws have effectively disenfranchised hundreds of thousands of people across the country. In various states (including Florida) there have been laws to curb voter registration drives. Some states have reduced early voting hours. In others (again, Florida) there have been efforts to restrict the restoration of voting rights to people with past criminal convictions. In 2013, the Supreme Court gutted the Voting Rights Act, weakening the federal government's ability to ensure racial parity when it comes to the right to vote.

Klain still thinks about the recount several times a week. He said there’s been no shortage of reminders. “It just inflames me that we still let people be disenfranchised,” he said. “All the stuff that still goes on is just enraging to me.”

Voter turnout in the 2012 election was 53.6 percent, according to Pew Research, one of the worst levels in the developed world. The highest, by contrast, was Belgium with 87.2 percent.

This podcast was edited by Christine Conetta. It is the final episode of the first season of "Candidate Confessional."

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