Sarah: I don't want to drink with my politicians. I don't want to have fun politicians.
Welcome to You're Wrong About, the show where we talk about the stories that were confusing all of the grownups back when you were a kid.
Mike: I am Michael Hobbes. I'm a reporter for the Huffington Post.
Sarah: My name is Sarah Marshall, and I am a writer in residence at the Black Mountain Institute. Although when this episode comes out, I will be doing a semi-professional dog-sitting gig in Nova Scotia, because that is my other profession.
Mike: Double-dipping.
Sarah: I'm a triple threat. I'm a pod castor, a lyric essayist, and a dog sitter.
Mike: And today we're talking about the 2000 election and the protracted aftermath.
Sarah: Are we going to call this ‘recount 2000’? Because I think that we should call it something 2000. Because remember how in the year 2000 everything was called something 2000. 2000 was the late nineties version of a go-go in the sixties. And in the sixties, it would have been recount-a-gogo because it just went on forever. And I was 12 years old when this happened, and it was the first election that I was really cognizant of. We lived in Honolulu at the time, my family, and there was a guy in our neighborhood. He had a wall around his house, and he had spray painted on it, ‘Gore: Concede already’. And I was like, this is weird. Grownups are tagging their own walls with political, not hate messages, but things are getting a little bit Escape from New York is whatever I remember feeling about all that.
Mike: That's what I remember ,too. Just how it felt very Banana Republic.
Sarah: Okay. Here's what I remember. It was election night, Al Gore thought he had won. And I remember watching the returns coming in. It came down to Florida in some way. And I remember that they were recounting the votes by hand, and that there were a ton of jokes about Chads, all anyone talked about was Chads, and hanging Chads, and the different kinds of Chads. Because they were like the corks of this election, how you can have a charm cork.
Mike: Up down term, strange top bottom.
Sarah: Yeah. And I remember specifically Gore at some point did the gentlemanly thing when he really shouldn't have and was like, I concede. I give up, I'm a human being and maybe if I act honorably, I will inspire the other side to do so.
And then I also remember there being obviously a lot of conversation about to what degree Ralph Nader was culpable in all of this.
Mike: Oh God. Yeah. I want to skip all that.
Sarah: We can do Ralph Nader in the future, it'll be our least listened to episode ever. We're finally going to have a less popular one than Exxon Valdez.
Mike: Yeah, I think it's the first time we really had that debate. Presidential elections typically are not that close. You could make the argument that we had no idea that 600 votes were going to be, the deciding factor.
Sarah: But take us back because why was this such a close race? And I remember that rhetoric around it being that like the great Al Gore burn. I can't remember who said this, but it was quoted in a David Foster Wallace piece, someone called him ‘amazingly life-like’.
Mike: I mean like every election, there's a lot of Monday morning quarterbacking of this one, and there's a lot of theories of what Gore should have done differently. The other thing to know about this election is that Florida was not the only race that was close. There were five states where the margin of error was less than 1%. There were actually recounts in Oregon and Wisconsin as well as Florida.
One of the things that Gore gets criticized for quite a bit is that he lost his home state of Tennessee. And that's seen as this humiliating loss, he was a Senator for Tennessee for 16 years and was pretty well liked, and then he ends up losing the state. And what that really shows is not necessarily that he was such a bad campaigner. It's really the fact that Democrats can not compete in the south. This election is the culmination of the Republican party becoming the party of Southern whites essentially.
Sarah: But this was like a crucial interval, right? Because Clinton was able to win as a Southern Democrat, and Carter was able to win as a Southern Democrat and that essentially doesn't exist the way it once did.
Mike: All of the cleavages that we see now, this is maybe their first appearance, because one of the things that shows up in the political science literature from after this election is that lots of these gaps were showing up. So this was the first election in which the poor and the rich had a 14 point difference in voting behavior. Churchgoers and non-churchgoers had a 25% gap. The country had really shifted underneath this very popular democratic president. Once that was gone and we had a not that charismatic Republican and a not that charismatic Democrat, it really was what are the parties going to look like in the future? And this race established that template.
Sarah: Yeah. And there was this big crack up and we're all outstanding standing on these different ice flows culturally. And they started drifting apart from each other and they've been drifting farther and farther. And now we're shouting distance away and we're like, “Hey. I hate you.”
Mike: Basically. Also Gore made a series of mistakes, pretty big mistakes they say. First of all, Bill Clinton at the time had an over 60% approval rating and Gore deliberately didn't bring Clinton out on the trail with him. He wanted to distance himself. He also identified Joe Lieberman as his vice president, and Joe Lieberman at the time was the most famous for being one of the first Democrats to criticize Bill Clinton. Gore was doing this whole thing that he wanted to appeal to the center, he wanted to appeal to the nearby right wing. So his entire campaign was built around convincing Republicans to come back to him.
Sarah: Also, everyone hated Joe Lieberman.
Mike: They call him in the political science literature, “the only person in American politics less charismatic than Al Gore.”
Sarah: Right. Al Gore is like, I have the charisma of a paperclip, who can I choose as a running mate, someone with the charisma of a staple.
Mike: I love reading the academic literature on this versus the Newsweek stories, in that the academic literature also notes that Bush ran a pretty shitty campaign, too. I mean, he was terrible in the debates. He named Dick Cheney as his vice president, who's also not exactly exuding charisma. We tend to look back at elections through the lens of who won them. We find genius things that the winner did and blunders that the loser did, but it looks actually like both campaigns were pretty mediocre.
Sarah: It's very familiar, right? We're forced to choose between two things that we don't really want. If every day someone says, you can have a $14 tuna sandwich or $15 chicken sandwich. You're on Amtrak and you have to buy one of these two sandwiches. Eventually, you're just like fine, fine, tuna.
Mike: Yeah. So our story begins on election night. Because what we need to know is, it's neck and neck. Another weird thing that this election invented was blue Democrats and red Republicans, those were not the case before then. But the network started doing those like live HD screens and touch screens and stuff that they do now. This was the first election where they had the technology to do that. There's live reporting and real time and exit polls and all this.
Sarah: So this is the beginning of a lot of our media election night ouroboros.
Mike: Yes, totally. This becomes decisive because around 9:00 PM, the networks call Florida for Gore, and then they pull back Gore's victory. So the state becomes blue, and then it goes back to gray, and then it's gray for a couple of hours as the votes are coming in. And then there's somebody working at Fox News who's a political chief, whatever, guy called John Ellis, who is calling local election officials. He essentially makes the judgment call at 2:16 AM to call Florida for Bush. It turns out later, and this sounds like a wild conspiracy theory, but it's in New Yorker stories and Jeffrey Toobin's book and everything else, he's George Bush’s cousin who happens to be working at Fox news at this time.
Sarah: Oh. And so it's because of a media call and not because of a poll call, that Florida gets called for Bush.
Mike: I mean, this is the thing. Yeah. So everything in journalism is a judgment call, right? What you put on the front page, when you call an election, are all adult human beings making these calls. And so this guy, John Ellis, within Fox News decides that the evidence in Florida is good enough to call Bush as the winner. So Fox News announces that Bush is the winner. Within four minutes, ABC, CBS, NBC, CNN, all say that Bush is the winner of Florida.
Sarah: Yikes.
Mike: It just shows the extent to which they're not really doing their own analysis, they're just following each other.
Sarah: Well listen, the conspiracy theorists do have a point, that makes me want to be like, yeah, they're all lemmings because they are yeah.
Mike: After Florida is called for Bush, Gore calls Bush to concede the election, they have a little chat. He's in the car on the way to his rally location to give his concession speech. This was like three in the morning, when one of his aides says, “Hang on a second, results from Florida are still coming in, and the lead is actually narrowing.”
So one of the weird things about this is on the night of the election. One of the counties in Florida has some sort of glitch in their system and they're reporting negative 16,000 votes for Al Gore. So somehow this glitch causes 16,000 of his votes to disappear. It makes it look closer than it is. So again, on his way to concede publicly and give his concession speech, he then calls Bush again and says, sorry, not conceding anymore.
Sarah: Oh, you can unconcede? I didn't know that. I thought it was like a ceremonial thing where once you do it, you can't undo it.
Mike: I mean, this is basically what Bush says to him.
Sarah: Bush says no mulligans.
Mike: This is according to a Vanity Fair article that comes out like two years later. Gore calls Bush and says, “Circumstances have changed dramatically since I first called you, it sounds like the state of Florida is too close to call.”
Sarah: Such an Al Gore thing to say.
Mike: And then Bush says, are you saying what I think you're saying, are you calling back to retract your concession? And then Gore says famously, he says, “You don't have to be snippy about it.”
Sarah: He said that? I love that. That's so Seymour Skinner, isn't it.
Mike: Then Bush says, well, you know, the networks called Florida for me. And my brother who's the governor of Florida also says that I'm leading in the state. And Gore says, “Your little brother is not the ultimate authority on this”, click.
Sarah: That's good.
Mike: So it's now the next morning. It's the morning after election day, the whole country wakes up, finds that Al Gore has a half million vote lead in the popular vote. Bush has won 246 electoral votes. Gore has won 250. So it's 246 to 250, 270 is needed to win.
Sarah: Yeah. I remember being like, oh my God, we're almost there. It's another one more little push. And then we're going to have a president who can pronounce the word nuclear.
Mike: So Wisconsin and Oregon are also too close to call at this point, but of course, Florida has way more electoral votes. So what we're all really focused on is Florida. So the entire focus of the next 36 days moves to Florida.
Sarah: Yeah. It's not a recount. It's a Florida recount.
Mike: So the first thing to realize about the insanity of the Florida recount is that 6 million votes are cast in Florida. Eventually the winner of Florida receives 537 more votes than the loser. A 1% margin of victory would have been 60,000 votes. 600 votes is a 0.001% margin of victory.
And so one of the problems with this that they point out immediately is that the media has already declared Bush the winner when, for a margin that narrow, when we're talking about literally 0.001%, it isn't really fair to call anybody the winner, right? Because we've got 6 million votes cast, we've got 175,000 votes thrown out and then we've got a winner by less than 600 votes. So essentially one of the first mistakes that gets made is that Florida should have been gray.
Sarah: Right. But we don't like saying that in the media ever about anything.
Mike: Yeah. And because they had already called the state for Bush, it locks in this idea that Bush won and now we're doing this recount. As opposed to, we don't know who won and we're doing this recount.
Sarah: This is the classic media thing. If you're delivering testimony before Congress, if you're saying who won a state in an election, if you're describing how a crime took place, really what seems to be the best way to get people to buy your story is to get there first. It's not about accuracy. It's about being the first person to solidify events into a narrative. And then any subsequent narrative is going to be less powerful than the first one.
Mike: And of course, Bush’s team is very good at solidifying this narrative. They talk about stealing and they talk about recounting. The language that they use is all about this win being taken away from them and Gore being a sore loser. So the biggest thing and what the fight then becomes is we've got 6 million votes and we've got 175,000 thrown out votes, votes that were not counted. So in most elections you have some number of votes that get thrown out, but it doesn't really matter. If somebody had won Florida by a million votes, who cares about 175,000 thrown out votes. Right. But because the margin of victory is so small, every single tiny thing gets poured over by dozens of people. So the entire fight then becomes, what do we do about these 175,000?
Sarah: So are they votes that were automatically disqualified in some way on election night and then they'd have to re-go over them. Okay. And why were they disqualified initially?
Mike: They're in the discard pile. It's basically, these are votes that we haven't counted because they have errors. There are two reasons that these votes have been thrown out. Under votes and over votes, over vote means you voted for more than one person. So over votes, most of those are on what is called Opti scans, which is basically when you do the SATs and you fill in the little circle with a pencil, that's how most of the counties in Florida are voting. So the vast majority of Florida voters have filled out a little SAT form and some small percentage of people for reasons that 99 times out of a hundred do not matter, people just fill out extra bubbles. Some people will just vote for Bush and Gore, or some people are just ding-dongs who vote for every single bubble because they like filling out bubbles. You're getting into 0.1% of the population. So all of the human behavior in this is totally inexplicable. So there's 113,000 over votes. Of those, 75,000 show Gore and somebody else. So they think it's a rank choice voting thing or something. So they choose Gore and Nader.
Sarah: Right. That makes sense.
Mike: A smaller percentage of those, 29,000, choose Bush and somebody else. So they choose Bush and Buchanan or Bush and somebody else. So the legal standard in Florida for counting votes like this is, can you determine the intent of the voter? So if somebody is filling out Bush and Gore on their little scan-tron, who knows? We can't count those because we have no idea. However, a lot of people fill in Gore and then they also fill in the bubble for write-in candidates. And then they write Gore. In that case, they've essentially voted for Gore twice because they don't understand how these forms work. We can determine the intent of the voter. They clearly very much want Al Gore because they voted for him twice essentially. And some people do that for Bush as well, and some people do that for Nader and some people write in Celine Dion. And then they also vote for Gore.
Sarah: That's who we should have chosen.
Mike: There’s also people that circle a name of somebody, or they put an X through the circle rather than filling in the bubble and those people are also thrown out. So it's this thing where as soon as something is weird on the ballot, it just gets thrown out automatically. And then if a recount is called, then we go back to it. There are a lot of ballots in there where somebody has filled in the bubble for Gore or Bush and circled their name. Or they filled in the bubble, but then they crossed it out and they crossed out the name of Gore and then they circled Bush. It actually shows two bubbles filled in, but it's very clear from that ballot that they intended to vote for Bush. Right. So this is why you have to have a human recount because machines just simply cannot deal with telling the intent of a voter, of what they actually wanted to fill out.
Sarah: Take that, machines. Yeah. And I imagine that the debate gets spectacularly granular about all of this and about how to qualify a voter intent.
Mike: And then where it gets really tedious is the under votes. So about one third of the counties in Florida are still using punch cards.
Sarah: That's how the Chad's happened.
Mike: This is where we get into the Chads because the way that it works is there's a template on the actual voting booth and your punch card is blank. You put your punch card behind the template. The template has holes in it like a stencil. The template has the names and little holes in the template where you can punch through and then you punch through and then you take your piece of paper out. And then your little piece of paper has all the punches on it. I found law review articles from 1977 pointing out how terrible the system is.
Sarah: It seems really weird.
Mike: People were pointing this out that this is just a dumb way to vote from day one. One of the things is that when you punch out your card and then you pull it out of the machine, it doesn't have the names of the candidates on it. So you can't actually look at your ballot and see, oh, I voted for this person. All you have is this blank piece of paper with a bunch of poked holes on it. And the biggest thing is this issue of pregnant Chads and hanging Chads.
Sarah: Oh pregnant Chads. The Chads got pregnant.
Mike: The piece of paper that you punch out of the paper is called a Chad. And so if you don't press it hard enough, you would have a dimpled Chad or a pregnant Chad where it would show there's an infant.
Sarah: Dimpled and pregnant, like I like my ladies. Pull them pregnant.
Mike: Again, it's all about the voter intent. So if one of them has been punched, but not punched hard enough to go through the paper, can we say that somebody has tended to vote, but didn't press hard enough. Or did they think about voting and then they just didn't.
Sarah: Oh, I see. So you can have a dimpled Chad somewhere on the ballot, but then a second candidate who has the Chad all the way taken out.
Mike: Or you have no dimple Chad's, but you have a dimple Chad for Al Gore. Maybe that person meant to vote for Al Gore, but maybe that person sort of did it and then they were like, you know what? I don't want to vote for anybody.
Sarah: Right. This is such a great illustration of how no one planned for this at all. And it seems like this method of voting is well, we started doing it during the revolution and we just never changed it. And do you realize that you have people in a state with millions of votes in a country with hundreds of millions of people figuring out who is going to be in charge of it comes down to people scrutinizing the little indentations in the pieces of paper. That's ridiculous. America, we're not the best at anything, but we might be the funniest country that's ever existed. That's funny.
Mike: Well, I mean, another thing that happens with these and this is pointed out in the 1977 law review article I read, that when you run punch cards through these counting machines, you get a different count every time because there's something called the hanging Chad, where you punch through the paper and two corners of the rectangle fall off like a Christmas advent calendar. Sometimes if you wipe your hand across the paper, that little Chad will just go right back into where it was, or it can fall off. This technology is terrible. 1 in 200 of the SAT balance, 1 in 200 of those gets thrown out. For punch card ballots, 1 in 25 gets thrown out.
Sarah: That's why you don't use a 1960s computer for election 2000.
Mike: I know. Again another one of these things that everyone knew was bad, but no one thought it would ever be this close.
Sarah: Right? Because once again, having a plan that's basically, everything will always be fine. It turns out that's not a great plan.
Mike: So the vast majority of the thrown out ballots are over votes. Those are the ones where people fill in more than one bubble. As someone who takes graphic design very seriously, the one that really drives me nuts about this is the butterfly votes.
Sarah: When some butterflies voted?
Mike: I don't know if you heard it, but it was in Palm Beach county, used a ballot called the butterfly ballot sometimes called the caterpillar ballot.
Sarah: Oh, that sounds nice. What could go wrong?
Mike: They have the bubbles down the middle and then the names of the candidates alternate, left and right on either side of the bubbles. Right. So it goes 1, 3, 5, 7, 9 down the left hand side and 2, 4, 6, 8, 10 down the right hand side. So if you're looking at it, Bush is the first name, Gore is the second name, but Gore is the third bubble. Pat Buchanan, he's another one of these random third-party weirdos, is the second candidate. I mean, it's not that hard. I will post a photo of this ballot with this episode for us, young people, there's lots of arrows telling you to vote, but again, we're talking about, you know, 1% of the population, right? So Pat Buchanan, who is listed as the second bubble, but I think maybe the eighth candidate gets more votes as a percentage of the population in Palm beach county, Florida than anywhere else in the country. Basically, because lots and lots and lots. And lots of people are reading this ballot as I am voting for Gore, when in fact they are voting for Pat Buchanan.
Sarah: Yes. And who lives in Palm beach county? People who perhaps are easily confused by things being different than they were.
Mike: This is like the most tragic thing about this. So Pat Buchanan wins 3,400 votes in Palm Beach. That's 2,600 more than he got in any other county in Florida, including Miami Dade county, which has six times more people. So Buchanan gets far more votes in this one random ass county. And the saddest thing, Palm beach county, there's a really high Jewish population. And Pat Buchanan, isn't quite a Holocaust denier, but he's a Holocaust shrugger. He's one of those people that's like, all genocides matter, right? He's like, well, you know, the Holocaust happened to Jewish people, but also there were like other genocides in history and political prisoners were also killed in Germany. And the idea that in a heavily Jewish county, when the first ever Jewish vice presidential candidate is on the ballot, the idea that a bunch of people in this county are voting for Buchanan and not Gore and Lieberman.
Sarah: No that sounds completely legit. I don't know what you're talking about.
Mike: So of course, Pat Buchanan himself, I mean, he's an odious monster, but the one good thing he's done in his entire life, he said on the Today show, these are mistakes, obvious people didn't mean it. I'm bad, but I'm not stupid. It's clear people did not vote for me. However, Bush’s spokesman, Ari Fleischer, who's still around. He identifies Palm Beach County. He says, well, it's a Buchanan stronghold.
Sarah: Up is down. Left is right. And the fate of the nation depends on Florida to be fair in bizarro time.
Mike: Generally, there's still the question of what to do. You can throw away 3,400 people's votes and just say, oh, it doesn't seem like you would have voted for this person. Right. I mean, that's a terrible precedent. And so you can't really rerun the election because there's no time. And so what everybody just decides to do is just move on.
So basically what we have, this Palm Beach county thing, there's essentially nothing to do about it. And then with the over votes and the under votes, we have 175,000 votes that just aren't being counted. So everything from now on becomes how and when, and whether to count these 175,000 votes. So right after the election, because it's less than 0.5% margin of error, there's an automatic. So the first thing that happens is they just feed all the ballots through the machines again. They don't do anything with 175,000 thrown out ballots, but the ballots that have already been cast they just run them again, standard procedure. And then they came up with Bush winning by 327 votes. That's the count as it stands, when we start fighting over these 175,000 votes.
So Gore has 72 hours to challenge these results, but according to Florida law, he can only ask for recounts on a county by county level. This is one of the catch 22s. You're not allowed to ask for a statewide manual recount until the count is certified. So the account has to be final, then you can ask for a statewide recount. So Gore demands a recount in the counties that have the most problems, but those are also the counties with the highest percentage of democratic voters. So what this does is it essentially gives Bush’s team an opening to say, well, Gore is politicizing this process.
Sarah: How dare you politicize an election?
Mike: It gives them this gift that then anything partisan that they do-
Sarah: is just retaliatory.
Mike: Yeah. And it just gets put into this frame of, politicians are politicians and both sides are fighting for partisan advantage. These politicians are just so venal and corrupt. So everything gets put into this frame because Bush and Gore, it seems, are both just pushing for partisan advantage. So Gore's entire strategy is to get more votes counted, and Bush’s entire strategy is to stop any more votes from being counted because he's already won. Right? So if you're winning, you want the whole thing, the whole process to just stop in its tracks, that's what you want. And if you're losing, you're like, count these extra votes.
Sarah: This is interesting. And it's intriguing, there's all this intrigue and all these little wrinkles and everything. It's fascinating. But at the same time, you look at this and you’re like, this is like two frat presidents trying to get more points and some sort of intramural, inter frat competition. It's so stupid and petty and so silly.
Mike: It's also just a terrible way to structure this in that you have two partisan actors running it, where if you just had clear election laws that said, look, if it's less than 5% margin of victory, let's do a manual recount state wind. Boom, right? None of this over vote under votes shenanigans, not just every single ballot, recount it statewide, recertify it, right? Because there's 36 days before the votes need to be sent to the electoral college. Right. There's a 36 day period. And one of the things that you find in a lot of the political science literature on this is that recounting votes doesn't actually take that long.
So a recount in Florida's most populous county, Miami Dade, takes about a week and that's manual by hand. You have three people look at each ballot and then they have to agree on, is this pregnant? Is this hanging? What is the intent of the voter? Do we throw it out? Which is actually a pretty good process. So if you want to do that, you can do that in about a week. But what happens is what takes much longer than actually recounting is all of the fighting. So all the legal battles, what do pregnant Chads count as. What do hanging Chads count as? Let's start the vote, not do the vote. I mean, all of these legal emotions drain the clock. And of course, this is a Bush team strategy because if you run out the clock, there's a hard deadline. December 12th, the votes have to be sent to the electoral college. So the closer you can get to that deadline, you can say, oh, we couldn't possibly count the votes in time. We couldn't possibly count the votes. So that's essentially the strategy. Gore wants to count the votes and Bush doesn't. Also another weird strategic error that Gore's team makes, Gore only wants to count the under votes, which is weird because there's way fewer under votes than there are over votes.
Sarah: Someone on his team at some point made the decision that the overview notes would lean toward Bush.
Mike: I guess. I don't understand that strategic decision. So then what happens is, do you remember Katherine Harris?
Sarah: No. I have no idea who that is.
Mike: So we've been doing this whole series on the unfairly maligned women of the nineties. Catherine Harris is a fairly maligned woman of the early 2000s. She was the Secretary of State of Florida at the time. And this is one of the things that emerges as another huge problem about American electoral administration, she is administering the election. She is in charge of certifying the results. She is in charge of making sure it's a fair and democratic process. She is also the co-chair of George W. Bush's Florida campaign. So she is overseeing the election. She is a referee. And she's also working for one of the candidates.
Sarah: Why don’t we do this? Is it so hard to just have bipartisan leadership within the infrastructure of an election recount? I don't know. Am I asking for the moon here?
Mike: Well, I mean, this happens so rarely. This isn't a problem until you have an election decided by 0.001% of voters, and then it's a huge problem.
Sarah: We're a country way too focused on the narrative of things will basically go fine and we don't have to come up with measures to anticipate things going differently than we expect. Every election feels like a reenactment of Titanic now because everyone's like, oh my God, we had no idea that such a thing could occur. And it's like, really, when you're on a boat on the water with the icebergs, and you're trying to have an election with the Americans, and they punch holes in a piece of paper. You didn't think it could get complicated?
Mike: And so she has exactly the same incentives as Bush was one of the candidates, she doesn't want the votes to be counted. So Al Gore says let's recap in these four counties.
Sarah: And she says, no.
Mike: Yeah. And she says, we can only do a manual recount if they are broken, if the machines are physically unplugged, like the Zoltar machine or something, we can't do it if they're working as intended. There’s no particular legal standard that she's standing on there, but so we're running out the clock now, right? So he wants it. She says, you can't. It ends up going to a judge. The judge says, yes, you can do a manual recount, but only of the undervote.
So this whole tick tock thing is happening. Everyone's just sitting on their hands. Finally, once the judge says, this can begin and Harris said, this can begin, they start recounting. So then they start recounting the votes by hand, they do this whole thing where the three people look at it. There are also election officials in the room that will throw out individual ballots. So a Bush dude and a Gore dude will be standing behind re counters as they're doing their recount. And there'll be like, no, not that one. No, I want that one thrown out and they'll literally fight minute by minute to throw out individual ballots.
Sarah: So it's like jury selection, but with a million pieces of paper.
Mike: Yeah, this is also where we have what's called the Brooks Brothers riot.
Sarah: What? I'm so excited for this. Let me just take a moment to savor my anticipation of that phrase. I imagine it's about a bunch of white guys, Ivy league campaign workers getting really childishly upset about something. Oh, okay. Tell me.
Mike: This is exactly what it is. So they move the recount from one floor of a building to another floor of the building or some little technical thing. All of these “ordinary Florida voters” stand outside the room chanting, ‘stop the vote, stop the vote’, and essentially creating chaos so that people cannot continue these manual recounts. What we find out later is that those ordinary Florida voters were campaign staffers. They were the interns, they were the assistants, all of these people. There was a ‘where are they now’ thing in the Washington Post when they look at all of the “protestors” at that time. And they're all working for the Koch Foundation, and they're at the Cato Institute, and they work for this Senator.
Sarah: And to think that they were just everyday Floridian voters only 18 years ago. And now they all work for billion dollar hedge funds and think tanks. It's amazing.
Mike: This just becomes chaos, and this ends up taking a really long time. And what's amazing is that the end of these four counties doing manual recounts because of all this back and forth, it's taking too long. So Palm Beach asks for a two hour extension so that they can get the results certified. Katherine Harris says no. Nope. You just have to certify what you've got.
Sarah: Catherine!
Mike: Yes. And the same thing happens in Miami. They ask for an extension because it's taking so long. Katherine Harris says, sorry. And they just certified the results that they now know are wrong because they'd been recounting these votes manually and the totals are changing. So essentially because of all these logistical stops of the four counties that Gore challenges, only one of them, the Lucia county, a small county, ends up completing the recount. All of the rest of them just certify the same machine recount from the day after the event. And that's it.
Sarah: What?
Mike: The only difference between the machinery count and what actually gets sent to the electoral college eventually is absentee ballots. So at the same time that there's all this recount stuff going on, absentee ballots are coming in and that's a different legal process because it's not a recount, it's a count. So as we know, from this most recent election absentee ballots need to be postmarked on or before election day or else they're not valid. But a lot of the overseas ballots in Florida are for military bases. So Bush’s team, which of course statewide is saying, stop the count, stop the count, stop the count. When it comes to the overseas ballot, it's like, let's make sure we count everybody.
Sarah: I know this is a crazy idea, but what if everyone was just honest, for a day. What would happen?
Mike: And so Gore doesn't want to challenge these because it sounds like he's going against the troops. So after Bush's team starts accusing Gore of not loving the troops enough or whatever, Lieberman then goes on all of the morning shows to say, no, no, we care about the troops. We want to count every single military vote. We're going to use the most expansive standard to count as many votes as we possibly can.
Sarah: Yeah. Joe Lieberman can charm the armed forces of our great nation. There's no one a Marine loves more than Joe Lieberman.
Mike: Nobody really wants to push back on this. And nobody wants to actually not count the votes that come in super late. So one of the things that's interesting about this, just like the butterfly ballots are graphic design total incompetence, 27 of Florida, 61 counties close to half of Florida's counties, don't have a place on the absentee ballot to write a date.
Sarah: Come on guys.
Mike: They just have a signature, but no line for the date. And of course the date is extremely crucial.
Sarah: Yeah. It's fairly relevant, right? Whether you voted before or after the cutoff.
Mike: The way that it's supposed to work is you have the signature, but then you look at the postmark on the letter, on the stamp to see, okay, does this count? Was it before election day or not? But postmarks get smudged. I mean, a lot of these are coming overseas, Kuwait. And from random places where the postmark, they have different postmarks they're in different languages. So oftentimes they can't actually determine when the ballots were sent. You can't know, oftentimes.
Sarah: Yeah. If you're organizing an election, you should have to do a bake sale first and then you can do an election.
Mike: So eventually they're defining these votes as widely as possible and just accepting all of them. Bush’s total goes up by about 200. And so a couple of years later, the New York Times actually gets its hands on all of the absentee ballots and finds it that about 680 questionable votes were counted during this period.
Sarah: Interesting. Questionable how?
Mike: Without postmarks or with postmarks after the election day or whatever. So that's all later. At this point, we've got the machine recount where Bush is winning by 327, we've got about 200 absentee ballots. So the results are final at Bush winning the state by 537 votes. And this is where the Supreme Court gets involved.
There is an earlier thing where the Supreme Court jumps in and says, you can't do a recount, but it was actually after the recount was already done. So Pedence always loves to point out that there are three interventions by the Supreme Court, only two of which are referred to as Bush v. Gore, but it's boring and I'm not going to get into it.
Sarah: They just jump in briefly and then it's about a relatively undecisive matter.
Mike: Yeah. They're basically saying don't do this thing that has already happened.
Sarah: I feel like the Supreme court's vibe is your dad who works all weekend who you're not supposed to bother. And sometimes there's this big crash downstairs and you hear your dad yell down the stairs, “Hey, that doesn't sound like geometry”, but he never actually comes downstairs. And you're just like, I just need someone to help me with my geometry and not yell down the stairs occasionally. But this is the dad I have.
Mike: This Vanity Fair article goes back and interviews a lot of the law clerks for the Supreme Court.
Sarah: Ooh. They know all the good shit.
Mike: Oh yeah. And what begins to dawn on them around early December is that the court is really divided. So even in that first technical, boring, whatever footnote of a decision, it's essentially five to four and the clerks are like, oh shit. Most of the big decisions in American life, Brown v. Board of education, the Nixon tapes, those were unanimous decisions really. And it's really important for the court as an institution to try to hold itself above partisanship and the way that you do that as a court is to give unanimous decisions. To say, look, this isn't a partisan thing. The president is subject to the rule of law, all nine of us agree about that.
Sarah: God, it's so foreign to me that the Supreme Court used to do that. I'm just like, wow. So it didn't used to be just an endless cage match between basic decency and the side of American law that's become completely captive to blood thirsty capitalism. How bizarre?
Mike: One of the things that after the results are certified, the Florida Supreme court says actually, you know what, we're going to have a manual recount. We're going to count all of the under votes. So this is one of the court's mistakes. Instead of just saying, we're going to manually recount all of the extra votes, we're only going to count the under votes. And we're not really going to give a standard for hanging Chad, pregnant, dimpled. We're not going to weigh in on that. All you guys just count whatever standards you have but count everything.
Sarah: We won't tell you how to do it, but do it, and leave us alone.
Mike: So the Florida Supreme court says let's recount all the under count. Three hours later, the Supreme court steps in and says, no, we're halting the recount. And there's this extremely sad behind the scenes detail of Gore telling his staff, being like, thank God, it's going to go to the Supreme court. And you’re like, awww, Gore. Even at this point, you think it's going to be better if the Supreme Court touches it. And what's important is that this is December 8th. The votes have to be in by December 12th, and it takes about a week to count them.
Sarah: There should be a Hallmark movie about a busy recount worker who realizes that love was right around the corner, you know? Cause anything with a Christmas-y deadline, that's classic hallmark fodder. Okay. So they halt it four days before the deadline at the point where every minute counts, essentially.
Mike: It's basically over at that point, right? Because the court is insisting on this deadline, the recounts, there's not enough time and the court says, well, now we have to hear arguments. Now we have to write our opinion, blah, blah, blah. It's going to take a couple of days.
Sarah: Courts love deadlines. It's fascinating. You're like, well, what if we had an extension and we could review this evidence and not execute someone who turns out to be innocent. And they're like, but we put it on the calendar. It's like your worst type A acquaintance. You're driving somewhere and she's like, at 1:00 we're going to stop at Panera. And then no one really wants to go to Panera. And she's like, no, I envisioned going to Panera. We're going to Panera. Our legal system is being run by a lot of Karen's, I think.
Mike: You're also going to love this too. Justice Antonin Scalia writes the opinion stopping the count.
Sarah: Oh, yes, my favorite justice.
Mike: Your favorite person. It includes the phrase, “the counting of votes that are of questionable legality, in my view, threatens irreparable harm to George W. Bush and to the country by casting a cloud upon what he claims to be the legitimacy of his election.”
Sarah: What? No.
Mike: So we're very concerned with doing irreparable harm to George W. Bush.
Sarah: Personally.
Mike: Yes. And the irreparable harm to voters whose votes aren't going to count, the reparable harm to Gore who might not win an election in which more people voted for him. The only irreparable harm we're concerned with is that of the petitioner who happens to be George W. Bush has been certified as the winner.
Sarah: Well God knows whenever anyone petitions the Supreme court, they take a special interest in that person’s needs as opposed to everyone else in the situation. But this, to me, in a nutshell is really a lot of the ignorant white men protecting ignorant white men's circle jerk that we call the government in this country. Where he's like, if the truth were to be spoken about this crooked campaign, everyone would know it was a crooked campaign and it would be irreparably badly damaged by people all seeing it for the thing that it in fact is.
Mike: This is the thing that is so counterfeit about this entire decision. Another thing that they do is they maintain this deadline that everyone points out later. They're like, you realize this is a fake deadline, right? So December 12th, it's the end of the quote, unquote safe Harbor provision.
Sarah: What? They just named it that because they wanted a nice name for people to latch on to and be like, but if we extend for eight hours, the Harbor will be less safe in the metaphor that we're saying for some reason.
Mike; It's like the electoral college, right? Where it's this vestige of a previous time. 200 years ago when they were writing the constitution, they didn't think any of this stuff would happen.
Sarah: And everyone was dying of syphilis and treating other diseases with mercury. And I'm sure no one thought they were making decisions that people would uphold 200 years later. And if they did, then that was the worst kind of arrogance.
Mike: And uphold as if they’re life or death, right? Where so many people point out after this, that this is an optional deadline. What it basically means is this is the last date on which Congress cannot challenge the results. It's not the day that the electoral college votes, it's not the day the president is sworn in, it's just a procedural intermediate step. There's a really good quote about this in one of the law review articles that I read, “The court elected Bush by insisting on the importance of December 12th, a date that is significant only because the 18th century arrangements decreed a stately series of certifications, meetings, and pronouncements that are now only charades. It makes no sense to demand that a breathtakingly close election be decided by any magic date in December, in order that a new president be chosen by January 20th.” So to declare fealty to this essentially random date six weeks before the inauguration, everyone is just what? Why?
Sarah: I mean, once again, it's shitty dad behavior, right? He's like, I'd love to come to your softball game, but you know, moderate traffic. Some imaginary reason that exists only to be a reason.
Mike: So I have a degree in political philosophy that is relevant to my life once every seven years.
Sarah: I have no idea how many degrees you have. It's amazing. Every so often it's like another scarf that you pull out. You're like, oh, political science.
Mike: One of the things I remember them telling us on essentially the first day of school was this principle that you cannot promise to do anything immoral because the only thing binding you to a promise is morality.
Sarah: Oh, that's interesting.
Mike: If I promise to kill your child, the immorality of breaking my promise to you is less bad than the immorality of killing your child, obviously. Right. And it seems like the same thing is going on here where the court is essentially saying, we have to maintain this deadline to protect the integrity of the election. The date is so important or else no one's going to trust in elections anymore. But what does it do to the institution of elections to not count everyone's votes, right? That's a much bigger problem for the legitimacy of elections, then missing a random deadline.
Sarah: No, everyone wakes up in the morning thinking, I hope that our most specific and irrelevant procedural laws remain enshrined forever or else, I won't feel comfortable in this country. It's similar to old school law and order. We have to have a death penalty so people will know that there are consequences. People need to know that there's someone in charge, that daddy's upstairs.
Mike: You really like that metaphor.
Sarah: I do. A lot of my beliefs about American government and our ideas about authority is that we all have daddy issues.
Mike: I don't think you're wrong, no.
Sarah: Thank you. And with December 12th, people have to believe that if the government says a thing, we have to do it no matter what. Rules are rules. Law and order society does feel arbitrarily upholding something that isn't helping anyone and is actually invalidating the processes of democracy. That maintaining belief in that authority is a value in its own right?
Mike: Yes. And as if anyone is going to say, oh, they didn't count my vote, but they were on time. So this is one reason for their decision. The other reason the court finds is that because the Florida Supreme court said all of the under votes have to be counted, but they didn't describe the standard by which the counties would count the under votes, the Florida Supreme court, didn't say pregnant Chads count, hanging Chads don't. They didn't define it at that level. So the Supreme court's argument is essentially because different counties will have different standards for counting under votes, they shouldn't count them at all. That counts as discrimination because some voters votes will count, and some voters votes will not count. So they're essentially making like a discrimination argument and what's weird is it's actually one of my old professors, from my philosophy department, which is what reminded me of this whole thing, he writes for the New York review of books a lot, his name's Ronald Borkin. One of the things that he points out is that the entire purpose of the equal protection clause is to protect classes of voters. So one of the things they shut down like a hundred years ago, I think, was a poll tax. You have to pay two bucks to vote. Well, that's not fair because it penalizes the poor because they are a class of voters. Whereas here, and this was pointed out by Ginsburg and this was pointed out in all the descents, there's no class of voters that are being harmed by one county counting pregnant Chads and another county not counting pregnant Chads. You can't say the poor will be affected by this.
Sarah: Latinas are more likely to have a pregnant Chad vote. Because it's completely random. Yeah.
Mike: Exactly. You get how it is sort of weird that there's different standards throughout the state, but it's not clear that that's going to systematically disenfranchise any particular group. Also what Suitor and Stevens both mentioned in their descendants is, we are the Supreme Court. If we want Florida to have a standard for counting the votes, let's give them a standard.
Sarah: I know we don't normally do that kind of thing, but we could, though.
Mike: Yeah. Could you just say, well, pregnants don't count, hangings do.
Sarah: That's a very grim statement out of context.
Mike: So this is how courts work, right. When a law is really imprecise, the court steps in and says, you know what? This is too imprecise. Here's the precision that you need. The Supreme Court here is just saying, we're going to stop counting. It's a weird conclusion to come to from that equal protection thing. Another super dark chapter of this is that the only Supreme Court justice to mention race in any of this is Ginsburg. Ginsburg writes an opinion that includes a footnote that says, if we want to talk about the equal protection clause, we have some pretty credible accusations of voter suppression among African-Americans. And she puts that in her draft. Scalia refers to it as the Al Sharpton footnote.
Sarah: Oh, come on.
Mike: This is according to the clerks. According to them, he calls it the Al Sharpton footnote and says, why are you bringing race into this? Because she values her relationship with Scalia.
Sarah: Because they go to the opera together.
Mike: Yes. This is the whole thing, and she wants to make it seem like there's this bipartisan relationship. She removes the footnote.
Sarah: What?
Mike: Yeah. So there's no reference to race or the ways in which there might actually be voter suppression going on.
Sarah: Ruth, he's not your friend.
Mike: I mean, another thing that my former professor mentions is the court had never shown any interest in voting procedures before.
Sarah: Really? How do they manage to avoid that the entire 200 years?
Mike: That's the thing is they haven't weighed in on how much voting procedures can actually disenfranchise groups, systematically.
Sarah: What do these people do with their time? What is the Supreme Court doing all day?
Mike: There’s this idea that punch card votes are thrown out far more than SAT scan-tron votes. The court has never shown any interest in this. So one of the things that my professor mentioned is “even in the best of circumstances, voting procedures are riddled with inconsistencies, beginning with the use of wildly varying reliability, such as punch cards and opti-scan machines in different jurisdictions. Voters, often poor or black, in counties with older machines were far less likely to have their votes counted than those in wealthier jurisdictions, and nobody ever heard a peep from the Supreme Court about unconstitutionality.” So they're essentially putting forth this thing, hey, everybody, voting really matters in some people might be getting disenfranchised and their vote counts less, for the first time. First time.
Sarah: Yes. Because when something happens to white people, they're like, oh shit, have you guys heard of this?
Mike: One of the great tells in this argument is that the actual main opinion of the Supreme court includes the language, “Our consideration is limited to the present circumstances for the problem of equal protection in election processes generally, presents many complexities.”
Sarah: Oh my God. So many Supreme Court decisions use the same language as half-assed term papers I have read as a teacher, it's truly alarming.
Mike: I mean, to say equal protection is such a big deal here that we can't count people's votes, but it's such a small deal that no other state can use the same standard to regulate its voting procedures. That's essentially the argument that they're making.
Sarah: Ask your mother.
Mike: This is from a lawyer review article three years later, “The court invented a principle that had never been used before and would never be used again for the sole purpose of making George W. Bush president”. This is Rick Hassen, I’ve read a lot of this guy’s work about this cause. He talks about the legacy, and he refers to this decision as a “One day only ticket to assure the choice of Bush over Gore.” And that's what it is.
Sarah: The president can only be a guy who loves the Astros'.
Mike: The last sad and disturbing thing about this decision to mention is there is no conservative principle at stake.
Sarah: Except the principal of this is our guy, right?
Mike: Yeah. I mean, people looking through this for conservatives tend to favor states' rights. They tend to favor individual Liberty. We know from other cases what this Supreme Court believes in and the arguments they find convincing and that they don't. And there's no conservative thing at stake here. And they don't even really use conservative reasoning. This is also from Rick Hassen, “The conservative's decision to reverse a state Supreme Court’s ruling on matters of state law did not reflect any established conservative position on any general constitutional question. On the contrary, conservatives have been at least as zealous as liberals in protecting the right of state courts to interpret state legislation without second guessing by federal courts, and on the whole, they've been less ready than liberals to appeal to the 14th amendment to reverse state decisions.”
So we've got, just like the dad upstairs, we've got the Supreme court coming down and saying, no, Florida state Supreme court, you are interpreting Florida law wrong. So they're stepping into this arena that is weird for them to be stepping into and that they don't seem to have any principled position on, just so that they can overturn it.
Sarah: It's like your dad is ask your mother, ask your mother, I don't care. Ask your mother, ask your mother. And one day that backfires, because you're like, mom, can I take ballet? And her mom was like, yeah, you can take ballet. And then your dad finds out and he's my like, my son is not taking ballet. And he goes into the kitchen and you're like, I've never seen him in the kitchen before. No, this is not a ballet household. And then he stomps back upstairs. And you’re like, wow, a one day special specifically to keep me out of ballet.
Mike: And so that's basically it. They say we have to meet this deadline. There's no time.
Sarah: The recount is happening and then they're like, no, you just have to halt it and go back to the original vote, and it doesn't matter?
Mike: Yeah. They remand it back to the Florida Supreme Court and they say, you have to meet this deadline and you can't order the counting of all the under votes because you didn't provide a standard. So they're essentially vacating one of its decisions. And they're saying you have to meet this deadline, but they hand down their decision on December 12th. So they're essentially saying today you have to certify the results and move on.
Sarah: So it's just fuck you.
Mike: Yeah. Essentially. And the Florida Supreme Court is like, we can't do anything with this. You've told us that we were wrong, and you've told us we have to meet a deadline, which is today. So thanks everybody. Good night.
Sarah: Oh, you can take our son to ballet class, but if you pay for it yourself by the end of this afternoon.
Mike: So this is the crazy thing. The result of the Florida election is the machine recount, the thing they did the day after, plus this one tiny county that actually completed its recount. So Gore gets 98 extra votes from that and the total of the absentee ballots. That's it. That's the whole recap.
Sarah: Okay. So I truly spent the last 20 years believing that a recount happened. And I feel like the big you’re wrong about here is that there essentially was no recount, there tried to be a recount, but that the Supreme court just karate chopped it to death.
Mike: Yeah. And Harris, I mean, Harris karate chopped it and the Supreme court.
Sarah: So the twist and recount 2000 is that there is no recount. There is only 2000.
Mike: Yes. There is no recount star asterisk. So this is really going to bum you out. A year after all this, I don't understand how journalists do stuff like this, but eight news organizations got together and somehow got all of the ballots that had been thrown out and actually did the recount themselves. Which is just like a bad-ass thing to do. They basically found out and this, I think turns out to be Gore's biggest mistake, if you counted only the under votes, Bush still would have won. The totals would have changed, but Bush still would've won. If however, you counted the over votes and the under votes, Gore would have won.
Sarah: That just makes sense to me because I just feel like there will be more soft-hearted morons voting for Gore and being like, I just want everyone to win. I'm going to vote for Al Gore and then also for Ralph Nader. I would do that if I wasn't sure how voting works. So Gore would have won if they had actually counted every vote.
Mike: If they had done a full manual recount of all of the extra votes, over and under.
Sarah: Including the over votes that he didn't want counted.
Mike: Yes. But what's really interesting is, I still cannot fathom this, all of the recount scenarios would have reduced the margin of winning. So if you only counted the under votes, right, as the court had ruled, Bush would have won by 493 votes, which is an even smaller margin than 537. If you counted the overs and the unders, Gore would have won by 107.
Sarah: Oh my god.
Mike: Unbelievable.
Sarah: 107, we have more true crime channels than that in this country. And again, the person who gets the story out first, that's the story that sticks. And the reality just becomes that Bush is president and therefore he must deserve to be president, right?
Mike: This is the part that's really going to piss you off.
Sarah: Oh my God. Really? This is the part? All right.
Mike: The other big aftermath thing is called the U S civil rights commission, it's part of the government. They did an investigation in 2002 and 2003 of voter suppression among African-Americans and what they conclude again, all of this stuff sounds like nuts, conspiracy theory stuff. But again, this is a government body that interviews 117 witnesses. They come to the conclusion that if white votes and black votes had been rejected at the same rates, black people would have cashed 50,000 more votes. They go through this whole thing.
One of the ways that this works, and I think this is so important about this equal protection stuff, is that, remember I mentioned earlier, those scan-trons opti-scan things where you fill in a little bubbles? The way it works is you fill it in and then you feed it into the counting machine. There's a little ATM thing next to where you fill out the bubbles. You put it into the little ATM counting machine and it says you voted for Gore and Senate and whatever, it gives you a little screen that says, here's how we're counting your vote. And so in that little ATM machine, it will actually tell you, we are throwing out your vote because you filled in two bubbles, and you can correct it. However, that costs money.
So what happens in poorer counties, they don't have the little ATM machine for you to confirm your vote. What happens there is you just fill out little bubbles, put it in a box, the box goes to a central database where it is counted. So guess which counties don't have the money to do that? So what happens is the vast majority of the over votes, people that filled in two bubbles or filled in Gore and then wrote in Gore, of these, 54% are of black people.
Sarah: Because they weren't checked.
Mike: Because they weren't checked. They didn't actually show it to you and say, Hey, this is how you voted. White people got that chance, black people in general, didn't. So what we've got is, 1 in 10 votes from black people in Florida are thrown out, 1 in 50 of white people are thrown out.
Sarah: 1 in 10.
Mike: 1 in 10, dude. And what's super fucked up about this and super conspiracy theory-ish, but appears to be true, is that far fewer Hispanic votes are thrown out than African-American votes. And one of the theories about that is in the year 2000, in Florida, Hispanics mostly voted Republican. So somehow these machines, the whole electoral system, is designed around throwing out African-American votes and keeping white and Hispanic votes.
Sarah: And it's just amazing how fractally discrimination works. All of the features of the macrocosm feel present in the microcosm. White people and people who live in wealthier communities, they can make mistakes. That's fine. Whatever, you fuck up your vote, the machines like, boop. Yeah. And you're a citizen and you have your say. And if you live in a poorer county, or if you're more likely a voter of color, then you're not allowed to make mistakes. Fuck you. You put your pencil in the wrong place and that's it. It's all over. You can wait four more years and then he can maybe pick a president.
Mike: I mean, that's the thing is, it turns out there's Republican officials on this U S commission on civil rights. So what happens is the Republican officials say, look, it's not about race. It's about black people are more likely to be first-time voters. They're more likely to be poor. They're more likely to not be high school graduates. And so those are the things that are really explaining this.
I found an article from 2003 where someone's like, hang on, you guys didn't run the numbers on that. You're just saying that. Where he found the best predictor of your vote being thrown out is being black. First time voters that are white, their votes, didn't get thrown out. People with no high school education that are white, their votes weren't thrown out. Black people with college educations, their vote are. So it has nothing to do with any of these other factors.
Sarah: So what do we know about how this could have happened or who could have helped it to happen?
Mike: I mean, part of it is there's a Washington Post investigation of this in 2003 that mentions that even predominantly black counties often have white Republican election administrators. So the county in Florida with the highest percentage of African-American voters has a white Republican election administrator. And you can't accuse this person on a one-to-one basis of saying you suppress the vote, but all of the incentives are there for that person to suppress the vote. Right. If you're a conservative and you know that African-Americans vote 90% for Democrats, it's not that far to say, well, maybe we just won't have these little ATM machines that let them check their votes. Right.
There's also an election administrator in, I think it's Duvall county, that also has a large African-American population. He publishes an op ed before the vote saying, make sure you vote on every page. And so a lot of people interpret that as you vote on the left-hand page for Al Gore and you vote on the right hand page, you fill in the circle and you write in Al Gore. Because he's saying you have to vote on every page where they have these butterfly ballots. So again, I don't think there's any conspiracy theory. I don't think anyone knew it was going to be this close.
Sarah: I feel like if you have a system that has become pretty corrupt in a lot of ways where everyone's defending their little margin that they have, and they have their little, oh, we just won't have machines in these counties. And we'll just edge out black voters here and there, you know, we'll have our little tricks.
Mike: Yeah. Yeah. And this is what this commission report finds. In the same way, it's sort of like a Ouija board where no one is aware of themselves moving it into the letters, but it just sort of happens that way. They say there's no evidence of a conspiracy, there's no email saying, Hey, Jeff, let's disenfranchise all these black voters, but at every level, people just aren't looking at it, right? There's this fake voter fraud thing in the 1997 election where a hundred felons voted apparently. And so Florida spends $4 million on a statewide effort to remove all of the felons from the rolls. The civil rights commission mentions that they spent, in this period, $0 on voter education, but they spent $4 million getting all of the felons off of the rolls. And so of course they hire a private contractor, dah, dah, dah. And what they start doing is they start purging the voter rolls based on names and birthdays. So if you have a common name, if your name is Christina Smith, and your birthday and name are the same as any felon, anywhere in the United States, you're taken off the voter rolls.
Sarah: Yeah. So if you're a white guy with three names you’re fucked. I'm Billy Ray Jones. There was a lone gunman with that name somewhere.
Mike: So that's another thing that a lot of people apparently showed up at the polls and were like, Nope, you can't vote. You're a felon. And you're like, what? No, I'm not.
Sarah: As our constitution observed probably, who knows, it is better than a million non- felons be disenfranchised than that one criminal be allowed to vote.
Mike: And I don't know. Again, this is one of those things that comes out afterwards. Comes out after 9/11. After Bush’s approval rating is sky high. I don't know. It's a long article. It's a government report. It's these kinds of things that have a way of just disappearing. And then you sound like a crazy person when you bring them up. When you're like, ah, the election was stolen, it just seems a little sore loser-ish. And so none of this stuff ever gets play. It's seen as all in the game type of framing, even blogs and things were pretty young at the time. Because the gatekeepers, the media gatekeepers basically decided it happened, the Supreme Court is a legitimate institution, we're all going to move on. There weren't other places where that information could bounce around and really get much bigger.
Sarah: So really also what this answer from you too, is that Ralph Nader was an important factor in this, but.
Mike: Well there’s still 97,000 votes for Ralph Nader in Florida and only 50,000 extra African-American votes, not 100% of which would have gone to Gore. So if the Nader people want to hang on to fuck Ralph Nader, then hang on to it, guys. You guys got all the ammunition you need.
Sarah: You do you.
Mike: The last thing I want to say about this is I want to talk about the lemonade theory, which is not about Beyonce, unfortunately. This guy, Rick Hassen, who's a law professor, a lot of scholars looked at the Bush versus Gore decision and wanted to find lemonade in it. They said, well, the court has now established a principle that voting procedures matter and voting procedures can in fact, disenfranchise people. Hopefully what will happen after this is other courts, lower courts, will take this precedent and will say, you know what? There shouldn't be any punch cards. There shouldn't be these optical scan machines. We shouldn't have lines. That is not what happened. I mean, this is my, I don't know if it's a central, you're wrong about, but it’s one of them, that election administration has not gotten better, it's gotten worse since 2000, right? It's more partisan now. There are more partisan officials in charge of elections than there were in the 1990s. There's more litigation now, too, that most candidates for electoral office have lawyers on their teams. And they're going to file a bunch of motions after the election. So we don't have a system where you can sue over this stuff before the election, which is when you want to fight about this stuff, right? You want to do it not when your mind is clouded with the particulars of the election, you want to do it before the election, when you can say, as a principal, let's recount all the under votes, let's recount all the overvotes. Whatever your principal is, the time to have those fights is before the election, but there's no way to do that now. So we sue each other a lot over elections now.
Sarah: We got to sue each other over something or else how do we feel alive?
Mike: The thing that I can't get over is that the butterfly ballots, the terribly designed ballots, there is no federal authority to tell counties how to design their ballots. This problem, there's nothing preventing it from going again.
Sarah: So you could theoretically tell voters to drive a hole into a rock with a nail or something.
Mike: Yeah. There's no way for the federal government to look at the way that ballots are designed in particular counties and just be like, you’ve got to be fucking kidding me. There's no way to do that. So what he says essentially is this is going to happen again. Whenever a narrow margin election happens, it's going to come down to the counties and most counties are super dysfunctional.
Sarah: But what are the odds that we would have another extremely narrow margin in an actual election after election 2000? We won't have to use these lifeboats.
Mike: The strategy sends 2000 really does appear to be just hoping, hoping that it doesn't all come down to one county.
Sarah: Yeah, will the lifeboats be seated according to class?
Mike: Oh my God. I mean, one thing that Hassen mentioned in this article about the lemonade theory is basically there was never any lemonade, there's only lemons. Every single problem of the 2000 election has gotten worse.
Sarah: I wish there was a nineties Chris Farley movie, where Chris Farley inadvertently becomes a Supreme Court justice and it would be called “Trying” or something, you know? And he ends up bringing the gift of compassion back to the Supreme court and saving America. And it exists in my mind.
Mike: One of the forgotten chapters of this is that while this big fight over deadlines was going on, Florida legislators and the governor moved toward a provision in law that would make all of the electoral college voters vote for George W. Bush, regardless of what the recount said. Yes, this was something that they threatened to do and we're actually moving toward.
So there's actually a chance that if the Supreme Court had voted for the recount and if recount had happened, the electoral college would have voted for George W. Bush anyway. This is something that legal scholars say is the biggest vulnerability, the electoral college itself. These people can just vote for whoever they want to. There's nothing binding them to any outcome, essentially. In the same way, our election laws were a huge liability that only became clear in 2000, we had 30 more of these massive ticking time bombs that just haven't become the center of some giant clusterfuck, but they easily could. And the biggest one is the electoral college, right?
Sarah: Because we wrote our laws based on the idea of human decency and we're like, how will a decent person behave in this situation? A human being who feels shame and mercy and humility. And it's like, why don't we write laws for those people? That's 7% of the population.
Mike: Yeah. So that's our episode.
Sarah: That's our episode, burn it down.
Mike: It's been the beginning of pushing a snowball down a hill that’s just rolling faster and faster and getting bigger and bigger.
Sarah: Well, all right. I learned that the high jinks of my childhood are not something I should be nostalgic about because they weren't better than the hi-jinks today. They were just the precursors of the thing that we have ended up with. And so in conclusion, we millennials have always been doomed, so let's just embrace it. We have to torque some stuff before we'll have a democracy again.
Mike: Well, we've already killed Applebee's. The electoral college can be a thing too.
Sarah: I'm okay with Applebee's. I can let Applebee's live if I’m allowed to have free and fair elections. How about that? How about we have that deal? We can have Applebee's, we also want democracy.
Mike: Deal.