J. Bradford DeLong
Five or six years, back when I worked at the Treasury Department, I had dinner at the house of one of the other Deputy Assistant Secretaries, Darcy Bradbury. There I met her husband, Eric Seiler. A little more than a week ago Eric called me: he was working for Harry Jacobs, the plaintiff in the Seminole County case, and asked if I would come testify about just who these 1932 people whose absentee ballot requests were monkeyed with had voted for.
And so last Tuesday night I found myself on an airplane headed for Tallahassee to appear as a witness on statistics in front of the Honorable Nikki Clark, asking for relief of some kind or other. So Eric called and asked me if I would come testify, saying that the hard part would not be actually crunching the numbers but explaining the power and limits of statistical methods to the court.
The Election of 2000
I am of at least two minds about the disputed election of 2000.
Democrats say that the form of the Palm Beach ballot disenfranchised their voters by the thousands. Republicans said that the early and erroneous calling of the Florida election for Gore kept thousands of their voters away from the polls in the Florida panhandle. Democrats say that poorly-designed voting machines failed to read thousands of valid ballots. Republicans claim that hand counts introduce error, and maintain that no vote is valid unless it can be read by a machine.
In the end I come down on the Democratic side, perhaps because I am a Democrat, or perhaps because George W. Bush is less qualified to be President of the United States than Al Gore (Jeb Bush or Jack Danforth would be another story). I believe that I come down on the Democratic side because it has always been the case that the gold-standard measure of a vote is whether a human can discern the intent of the voter, not whether it is machine readable. A insistence on changing the standard from what the voter intends to what a machine reads is sleazy--more sleazy even than Al Gore's attempt immediately after the election to cherry-pick votes by requesting manual recounts only in Gore-heavy counties. Of course, were I a Republican I would focus not on George W. Bush's attempt to shift the standard of what a valid vote is, but on Al Gore's wish to use different standards in Democrat-heavy Miami-Dade than in Republican-heavy Duval County. (I would be wrong to focus on that, but I would do so.)
Perhaps the clearest thing is that neither candidate is qualified to be president of the United States. If either were qualified, he would have said no later than two days after November 7 that this election in Florida is just too close, and we need to appoint somebody of integrity trusted by both parties--Justice Souter, or Senator Mitchell, or Senator Danforth--to oversee the state-wide recount process. He would have said that it is less important that I win than that the count be fair and be seen by everyone in the United States to be fair. Neither candidate did that. Neither is qualified to be president.
Surely the second clearest thing is that no one can claim that either candidate does not deserve Florida's electoral votes. A greater proportion of Florida voters voted for Bush (and for Gore) than the percent of American voters who voted for Clinton in 1992. If the vote count and the protests and the contests that follow produce an electoral college that votes for George W. Bush, that is fine. If the vote count and the protests and the contests that follow produce an electoral college that votes for Al Gore, that is fine too. In either case, the thing to focus on is that we have a system to decide such hard cases. You cannot claim that any one candidate has a right to be president, irrespective of what result the system produces. The margin is so small that we know with certainty that there are currently-unknown errors in the Florida vote count that are larger than the difference in the vote totals. The important thing is to value the system.
(That we value the system, however, does not mean that we think the system is perfect: it is long past time to get rid of the Electoral College that brought us this dog's breakfast. And that we value the system does not mean that we think the people who fill offices are worthy of their posts. Consider William Rehnquist, for example. Back in the 1960s he used to tell African-Americans that they would go to jail if they dared vote and someboy found something technically wrong with their registration. Here in the 2000s he tells us that the American republic is threatened if any effort is made to count legal ballots cast on election day by registered voters. Once a Republican "ballot security" hack, always a Republican "ballot security" hack. But the fault is not Rehnquist's alone, but is shared by those senators--Democrats and Republicans--who confirmed him to a position he is not suited for.)
One thing, however, that did scare me was Seminole County.
In October of 2000 the Seminole County election office got out of the non-partisan business of calling up people who had submitted invalid absentee requests and telling them they needed to submit another one. It secretly got into the business of helping Republican Party officials correct invalid absentee ballot requests. Election officials picked one particular kind of absentee ballot request and only one kind of absentee ballot request--Republican "postcards"--out of the box into which invalid absentee ballot requests had been placed. They put rubber bands on them. They carried them over to where Michael Leach from the Republican Party was sitting with his laptop. After he had entered voter ID numbers on those and only those absentee ballot requests, it was employees of the Seminole County election office that took them away and entered them into the system.
An election office is supposed to be a non-partisan referee. It is not supposed to secretly become an instrumentality of one single political party.
(It is true that the voter ID numbers were missing because the Republicans had forgotten to proofread the output of their mailmerge program before they sent out their absentee-ballot-request postcards. But voters failing to notice that they were supposed to add their voter ID number seems to me to be the same kind of thing as voters failing to understand the Palm Beach butterfly ballot. Some voters failed to notice that they were supposed to include their voter ID number and that it was not preprinted on the application. Other voters failed to notice that even though Gore's was the second name listed it was the third hole to be punched in the ballot. In both cases, the appropriate response seems to me to be "tough." Neither mistake justifies election officials' intervention to correct it. I cannot see how anyone can think it appropriate to try to fix one set of mistakes, and not appropriate to try to fix the other.)
The problem with the case, however, was that the Seminole County elections office put its thumb only lightly on the scales on the Republican side. No ballots were burned. No voters were intimidated. All that happened was that turnout on the Republican side was boosted as 2126 people who should have had to make it to the polls on election day were illegally given the option of sending in an absentee ballot instead. Available remedies from past precedent were limited to throwing out *all* the absentee votes in Seminole County: disenfranchising 15,000 voters, 13,000 of whose ballots were not called into question, the other 2,000 of whom had no idea that their ballot applications had been monkeyed with and who voted in good faith. It seems to me that no judge would enforce such a disproportionate remedy that would do more harm to the elections process than it would correct. The question was whether there could be an alternative, more limited, way of dealing with the situation that would do more justice than simply leaving the situation alone. That was what I was supposed to talk about.
And so on the evening of Tuesday December 5 I found myself hopping across the country--San Francisco to Las Vegas to Tampa to Tallahassee. Whenever I hop across the country at night things always become slightly surreal, and truths about America are revealed. This time it came at the Las Vegas airport, where I wanted an orange juice and pushed a $20 across the counter. "No, no!" said the man staffing the kiosk. "Bring it over here. They," he said, pointing to a camera on the side of the kiosk, "only want me to handle money where they can see it. Hi guys!" he said, waving at the camera.
"It used to be that the walls had ears," I said. "Now it looks like the walls have eyes as well." I gave him his $20 within the field of vision of the camera
"Yes," he said, giving me my change. "Big Brother is watching. And he's no relation of mine."
When I got to Tallahassee and the very large open conference room out of which the plaintiff's side of the case Harry Jacobs et al. vs. Canvassing Board of Seminole County et al. worked, there was chaos. "Does anybody have a copy of the Topel deposition?" I asked the room. Robert Topel, a professor at the University of Chicago, was the counter-expert to me. He had been deposed late the previous afternoon. No one in the room had a copy of the Topel deposition. No one in the room knew what the facts were on which Bob Topel was relying, whether these facts were going to be stipulated, or who was going to enter them into evidence.
Confusion reigned outside the room as well. Demonstrators called on the court to reject this attempt to discount overseas military ballots. But none of the ballots at issue were from people overseas. Republican lawyers squabbled at each other. What one agreed to another would not. During my testimony one would object to a question asked by another, one objecting to another's question of me during cross-examination. "We go into court with no clue as to what motions are about to be considered," said one lawyer. "This case is unique in many ways: one way in which it is unique is that we do not have a complete copy of the pleadings. We go into court, somebody says 'We were never served with that!' and somebody else says 'You weren't? You were supposed to be! Here!'"
But there did seem to be three islands of calm and order.
The first was Jim Erlandson, who had put in an immense amount of work trying to figure out just what had happened to the absentee ballot requests in Seminole County last October. He was not completely successful: the Seminole County office of elections yielded information as through an eyedropper. But he knew as much about what had gone on as anyone and, more important, knew what we did not know.
The second was Gerald Richman, lead counsel for Harry Jacobs, looking like Dean Acheson in his prime and always ready to marshall the same arguments once again and explain, patiently, the matter of the case.
And the third was Judge Nikki Clark. Smart, thoughtful, willing to listen, and able to ride herd on an extremely hard to handle group of lawyers. Once you went into the courtroom itself, chaos ended and order prevailed. Evidence was entered. Objections were raised and dealt with.
When emotions and intensity are high, the transfer of short-term to long-term memory is spotty. But some moments stand out:
- The Jacobs witnesses and lawyers returning to the office after the trial, exhausted. Someone turns on the TV. "There we are," somebody says. "No we're not." "But the Republican lawyers are the same. They're sitting right where they sat." "But look--that's not Gerry, that's not Eric." "This is the Martin County trial." "They have the same lawyers, exactly?" "That's what it looks like." "It's like Groundhog Day." "No, Groundhog Day's in February." "No--that Bill Murray movie. Where he has has to keep on doing the same day over and over again until he gets it right..."
- Attorney Katherine Pringle on the stand, reading the deposition of Sandra Gouard into the trail record. CNN identifies her not as "Katherine Pringle reading the testimony of Sandra Gouard," not as "testimony of Sandra Gouard," but just as "Sandra Gouard"...
- University of Chicago Professor Kevin Murphy--part of the Republican team--being dragged away by the lawyers who hired him while talking to me after I went over to him and raised one objection to what I thought Bob Topel's testimony might have been. "Brad, you're good. We wondered if they'd think of that, and concluded 'Nah!' You're good. But we're good too. There are at least two other things you still haven't thought of..."
- One report of how my testimony went: "Your command of the facts was really impressive. Your ability to be evasive when you didn't want to answer was also impressive. But the judge was good: she nailed you twice..."
On the stand I did say the one thing that I thought I could say with complete confidence--that the 1932 voters in question whose ballots had been called into question were a Bush-heavy group, with a net edge for Bush that was with overwhelming probability somewhere between 1404 and 1879. These 1932 are, after all, 94% Republicans.
But being on the stand was also extremely frustrating. The cross-examiners wanted me to say how many of these 1932 would have voted had Michael Leach from the Republican Party never shown up inside the election office to monkey with the absentee ballot requests. I didn't have the data to make any good estimates about how many of these 1932 would have voted. And I really wanted to stick to what I could say with confidence (which was who these 1932 voted for).
The person who had the data, and who had spent a good part of the previous 5 days working on it, was the Bush-side expert--Bob Topel. I thought that Topel would have had this issue nailed. After all, the office of elections knew the names of these 1932 people. It knew how long they had been registered in Seminole County. It knew whether (and by what means) they had voted in previous elections. That is enough information to nail completely the question of whether these 1932 would have voted had they not received improperly-mailed absentee ballots. I had none of this information. I presume Topel had nearly all of it--although next to none of it was ever entered into evidence.
So I was looking forward to listening to Bob Topel testify and then get a look at his underlying data before forming an expert opinion of how many of these 1932 people woul dhave voted. It seemed better to do a quick on-the-foly assessment of whether Topel had done something wrong in his estimate (which is unlikely: he's very good) than to opine in advance on something where my knowledge was very weak.
But then they did not call Bob Topel to the stand at all. The Bush side rested its case almost immediately--presumably because they thought that the witnesses they had brought to the courtroom would hurt them more than they would help them. And I still haven't gotten a proper look at the data he was going to rely on.
I did have a brief conversation I had with Bob and his friend (and fellow Chicago Professor) Kevin Murphy while they were running toward their next trial (the Martin County trial). If I understand it correctly, Topel's estimate was going to be that 78% of these 1932 would have voted had Michael Leach never gotten into the elections office. But if so, he would have been wrong: the data he had was much worse than I thought it would be, and only shows that the point estimate is somewhere between 62% and 78%. If you want to combine both of our estimates, this would mean that the Republican Party and Seminole County official misconduct at issue in this case boosted Bush's edge in Seminole County by somewhere between 308 and 720 votes. But I'm not sure I understood Kevin correctly.
After watching the evidence being presented, one thing is crystal clear to me: if this were a case about a county-level race, Judge Clark would rule for the plaintiffs. The elections office is supposed to be a neutral place where neither party has an edge, and this fall in Seminole County it was not. The requirement that you submit your voter ID number with your absentee ballot request is not a hypertechnicality, but a deliberate decision by the Florida legislature to try to make it harder to vote absentee, and much harder to use absentee ballots as a way to commit election fraud. In a county-level race, I think it is clear that the right decision would have been that election offices have to treat ballot requests the way the legislature said they should be treated, and there should be substantial penalties for political parties that induce election offices to break the rules.
But this is not a county-level race. That leaves me of two minds. The firt says that it is not Judge Clark's business that this election has larger stakes. The right approach is the old Latin maxim "fiat justitia, ruat caelum": which very freely translated is "we don't care if the heavens are falling outside; here we do justice." The second says that--whether the law says so formally or not--the burden of proof to trigger judicial action has to be greater when such action has a high probability of changing the identity of the president-elect than when it changes the identity of the county supervisor. It is clear to me that the plaintiff's case met the burden of proof necessary for a county-level race. It is not clear to me that the plaintiff's case met the burden of proof necessary for a national election.
So I'm not sure that I would have ruled for the defendants, as Judge Clark did. But I'm not sure that I wouldn't have, either, had I been in her place.
Hopping back across the country I found I was a temporary celebrity. Five strangers came up to me in three different airports as I waited for connections. "I saw you on TV," they all said. We all rapidly reached agreement that
- neither candidate has behaved well
- neither candidate has any right or will ever have any right to say they know they won this election in Florida
- everyone thinks we should let the system do its job
- everyone believes that the system should be fixed.
- it looked uncomfortable up there on the stand, but it's a good part of the system: it's supposed to be uncomfortable.
At least if you judge Americans by strangers who come up to you in airports, Americans have a pretty sane view of the situation. (Of course, if you judge by the five or so uncomplimentary emails I have received, Americans are pretty loony.)
What do I think should happen? I already gave my answer to the little question--that I really don't know how Judge Clark should have ruled.
What about the big question--who should be the next president? The Thursday night before the election I gave a talk at St. Mary's College, trying to present the Bush and Gore points of view fairly. In the course of that talk I said I hoped that whoever won the popular vote would become the next president: that the electoral college was not a valuable part of our system, and that if the candidates had enough guts and enough concern for the future of the republic they would pledge to throw their electors to the popular vote winner. Back then people thought that Bush was sure to win the popular vote but that Gore might squeak out the electoral vote. So back then Republicans thought I was a statesman, and Democrats thought I was a loony.
Now that the election turned out in an unexpected way, Republicans think I am a hack, and Democrats think I am a far-sighted statesman. It is the case that I am the only person I know who has held this position--that the popular vote winner should become president--both before and after the election. And I find this a very nice position to be in.
St. Chad, bishop of Lichfield, the apostle of Mercia, was elected bishop of York in the seventh century. When the validity of his election was disputed, he responded that he had never felt qualified to be bishop and would gladly resign. The Archbishop of Canterbury was so impressed with his piety that he regularized his appointment then and there. But St. Chad insisted on resigning the see of York, and took up instead the see of Lichfield. Ever since--or so the recently-created urban myth goes--St. Chad has stood guard over and pled for mercy for all those who suffer through disputed elections.
So let me conclude by giving thanks to St. Chad, the patron saint of disputed elections. I thank him for my deliverance from Tallahassee, and from the Belly of the Beast that is modern American politics.
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