Behind the Scenes of Bush v. Gore

DATE October 27, 2004 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: David Margolick discusses the Supreme Court's role
in Bush v. Gore
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

The presidential election is so close and there are so many lawyers around the
country ready for action, it's conceivable that Tuesday's election will wind
up in the courts. My guest, David Margolick, has investigated what happened
four years ago in the Supreme Court when it decided to hear the Republicans'
challenge to the recount in Florida. The US Supreme Court stopped the Florida
recount and ruled it violated the equal protection clause of the Constitution,
because each Florida county was using a different standard for evaluating
ambiguous votes. David Margolick is one of the three authors of a story in
the October issue of Vanity Fair magazine, titled The Path to Florida.

Margolick is a contributing editor to the magazine and is the former national
legal affairs editor and legal columnist for The New York Times. Margolick's
chief sources for his Supreme Court story were people who were clerks of the
justices in 2000. His pursuit of them and their willingness to talk with him
have proven to be quite controversial.

Several clerks spoke with you for this article. What is the typical
understanding of a clerk's confidentiality in a Supreme Court?

Mr. DAVID MARGOLICK (Contributing Editor, Vanity Fair Magazine): Well, I
think that the understanding is the clerks say nothing about what goes on at
the court, either when they're there or later, really in perpetuity. The
understanding is that they never speak.

GROSS: Under the Supreme Court's chief justice, William Rehnquist, they have
to sign a confidentiality agreement.

Mr. MARGOLICK: Yes. This is something new. Ten or 15 years ago, a fellow
named Eddie Lazarus, a former law clerk himself, wrote a book about his
experiences at the court, and ever since then, all subsequent clerks have had
to sign confidentiality agreements.

GROSS: So the clerks who spoke with you broke that confidentiality agreement.

Mr. MARGOLICK: Well, you know, it depends on how much of a lawyer you want to
be about this. Some of them would say that the confidentiality agreement
covered only whatever proper activities the court engaged in, and since the
court went overboard in this case, they didn't feel bound by it.

GROSS: So the clerks told you that they felt that the court went overboard in
this case, and that's why they didn't feel bound by the agreement?

Mr. MARGOLICK: Yes, that's right. The clerks who spoke to me felt that
something illegitimate had happened in this case, and that the court had
delved into the political realm in an inappropriate way, and that weighing the
pledge that they had made with their sort of larger obligations as citizens,
it was more important, they felt, to speak out and to describe what happened
at the court rather than let it wait for 15 or 20 years, until some justice's
papers were opened up. And I was grateful for that, and I appreciate it.

GROSS: There's an open letter to Legal Times in the September 27th issue from
96 former law clerks and lawyers who practiced before the Supreme Court, and
they called the clerks' talking to you `conduct unbecoming any attorney or
legal adviser working in a position of trust.' And are you troubled at all
that they spoke to you, or do you think it's perfectly justified for the story
that you got?

Mr. MARGOLICK: Well, I was delighted that they spoke to me, and I thought
that they helped fill a black hole in American history, and I admired them for
doing it. I thought they were very courageous to do it, because even though
they did it anonymously, it's a very small network and fingers would
inevitably point at certain people. I think it's very easy for these 96
people, most of whom, incidentally, were on the right wing of the spectrum, to
come down and condemn them. It was very easy and very predictable.

GROSS: Three Republican senators had asked the Senate Judiciary Committee to
consider hearings to determine whether there had been misconduct on the part
of these Supreme Court clerks who spoke to you. What's happening with that?

Mr. MARGOLICK: As far as I know, nothing is happening, and again, that's not
particularly surprising to me. I thought it was just really political
posturing. I mean, they were three very right-wing senators, and I didn't
take it seriously and I didn't think that anything would happen as a result of
it.

I should say, in response to your previous question, Terry, that, you know,
again, it's very easy to say that under all circumstances clerks should never
speak to reporters, but we all know that, you know, we would have liked very
much to have had a clerk's-eye view of what happened at the court during some
of its most egregious decisions--the segregation decision, the decision about
the Japanese-American internment during World War II, the decisions upholding
slavery--and I think that no one would say that under those circumstances it
would have been inappropriate for a clerk to speak. And having decided that,
then it clearly becomes a continuum over when it's appropriate and when it's
not.

GROSS: To refresh everyone's memories, a lot of experts thought that it was
very unlikely that the Supreme Court would intervene in the Florida recount,
because traditionally that has been--that voting has been in the states'
domain. Can you elaborate on the reasons why many experts thought that the
Supreme Court would not intervene?

Mr. MARGOLICK: Well, the court's authority is very fragile, and courts
generally stay away from explicitly political cases. They stay away from
cases that aren't ripe, that aren't fully adjudicated below. They generally
defer to states and state courts. The court recognizes that it can't jump
willy-nilly into every political controversy, and that its authority is more
delicate than that. And for that reason, I think that the clerks to whom I
spoke and the justices for whom they worked were flabbergasted when the court
agreed to hear the case.

GROSS: What were the grounds that the Bush lawyers used in taking the recount
to the Supreme Court?

Mr. MARGOLICK: They argued that the Florida Supreme Court had usurped the
role of the Legislature in determining what rules governed the selection of
electors to the Electoral College. That was one of the arguments, and that
the Florida Supreme Court had created new law ex post facto, after the fact
law, which was improper under the Constitution. They also argued, as a
subsidiary matter, that the way in which the ballots were being recounted,
since it varied from one jurisdiction to another, violated the equal
protection clause of the Constitution.

GROSS: So what else did you learn about the process of deciding whether the
Supreme Court should actually hear the case?

Mr. MARGOLICK: Well, only that nobody expected the court to agree to hear
the case. The court had dispersed for Thanksgiving. The justices had gone
off in various directions. The clerks had made plans to celebrate with their
families. And they really thought that the court would never agree to hear
it. Justice Breyer said, I guess over Thanksgiving dinner to someone, that
there was no way the court would agree to hear it, and they were just
thunderstruck when five justices agreed. It only takes four, and five of them
lined up very quickly. That's the first vote.

The second vote, after the first oral argument, was unanimous,
nine-to-nothing, to send it back to the Florida Supreme Court, and I think the
justices felt unanimously, or almost unanimously, never to see it again, and
therefore to spare the court an enormous institutional embarrassment of
deciding a presidential election by a vote of five-to-four. And they thought
that by sending it back to the Florida Supreme Court the first time, that that
would effectively decide the matter.

But the Florida Supreme Court confounded them and came back with a
four-to-three decision ordering the recount to continue and even expanding the
recount, and so therefore, the case bounced back to the Supreme Court and the
schisms that the court had managed to paper over initially at that point were
bound to come out.

GROSS: So when the case came back to the Supreme Court, you write that the
Gore lawyers assumed that Justices Kennedy and O'Connor were the two swing
votes, and what the lawyers had to do was convince Kennedy and O'Connor, or
Kennedy or O'Connor to go over to the Gore side. But you say O'Connor's
mind--you learned in your reporting that O'Connor's mind was basically already
made up.

Mr. MARGOLICK: Yes. O'Connor had said to her clerks very early that she
wanted to find a way to stop the recount in Florida, and that she seems--I
mean, the impression that I got from my interviews was that she was personally
offended by what was going on in Florida, and that she was determined to find
a way to stop it. And the only question was finding the legal rationale for
doing it.

GROSS: Do you know what it was that offended her?

Mr. MARGOLICK: Well, I'm not an authority on Justice O'Connor, but I gathered
that she's sort of offended by any kind of disorder or messiness, and she just
wanted--you know, she seems to have been--she was offended that Florida voters
didn't seem to know how to punch a hole all the way through the ballot, and
she--you know, just the--it seemed intuitively unfair to her that different
standards were being used in different counties, and she thought that a kind
of heist was going on and she wanted to stop it.

GROSS: And what about Justice Kennedy? What did you learn about how he made
up his mind?

Mr. MARGOLICK: Well, the clerks focused a lot on Justice Kennedy. In fact,
it's almost a little bit unfair to Justice Kennedy in the sense that--three of
the justices, Rehnquist, Thomas and Scalia, their votes were taken for
granted. I mean, it was automatically assumed that--among the clerks, that
come what may, they would vote to stop the recount, and they get a pass, in a
sense, because no one was talking about them. Their votes were taken for
granted. They were already considered to be lost, whereas O'Connor and
Kennedy were the ones that got the most scrutiny because they were
theoretically thought still to be in play. And Kennedy, the clerks focused on
Kennedy in particular because they felt that he was, in a way that they had
spotted before, and that he was renowned for, in a sense, that he was
posturing, that he was pretending to a kind of open-mindedness that he really
didn't have, and that his mind was made up, but that he made a great public
demonstration of agonizing so that he could say that afterwards.

GROSS: My guest is David Margolick, one of the three authors of the article
The Path to Florida, published in the October issue of Vanity Fair. We'll
talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is David Margolick. For the Vanity Fair article The Path to
Florida, he spoke with several people who clerked with Supreme Court justices
in 2000 during the case Bush v. Gore.

Now you write about how Kennedy's law clerks were screened with the help of
archconservatives. Tell me what you learned about this.

Mr. MARGOLICK: Well, this is something that's been out there for some time,
that Kennedy is thought to be an unreliable conservative by the right wing.
He's deviated on several important cases, including abortion-related cases,
and that, you know, there was great debate in cases of that kind over who lost
Kennedy. And there's a whole sort of network of right-wing professors,
judges, clerks, the Federalist Society, that kind of vowed not to ever let this
happen again, and they took over Justice Kennedy's selection process for
screening and picking law clerks. And they screened them precisely to avoid
the possibility that a liberal law clerk would have any kind of untoward effect
on Kennedy.

The feeling was that in the abortion case, that a liberal law clerk, a former
protege of the Harvard Professor Lawrence Tribe, a famous liberal, might have
helped lure Kennedy away from the pro-life side, and they vowed that it would
never happen again, and so year after year, Kennedy's law clerks were the most
undeviatingly conservative of any justice, and that was particularly true in
the year of Bush v. Gore.

GROSS: You know, it sounds kind of like devious when you describe it, but
really this couldn't be happening without Kennedy's permission, so I mean,
it's not like his power is being usurped by...

Mr. MARGOLICK: No, that's right. I mean, you know...

GROSS: ...a group of conservatives and he's...

Mr. MARGOLICK: I mean--yeah. As one of the clerks said to me, it's
just--you know, the whole assumption is that a Supreme Court justice is, you
know, unduly influenceable by a second-year lawyer. And it is, it's a bizarre
phenomenon. Surely, yeah, I mean, he knows what's going on. I mean I think
that it's a peculiar phenomenon of the court that many of the justices
surround themselves with like-minded people. I mean, one would think that
they'd be strong enough to have a diversity of opinion laid out before them,
and in many instances, that's not true.

GROSS: Now you also write in your piece that Justice Stevens wanted out of
this case altogether, and he wanted the political process in Florida to
unfold, but Justice Scalia wanted to overturn the Florida Supreme Court and
call the election for Bush. Can you describe what you learned about each of
their positions?

Mr. MARGOLICK: Well, they seem to have been the polar extremes in this case.
Justice Stevens was the most adamant and opinionated about keeping the court
out of it altogether, and feeling that the court was going to sully its
reputation by getting involved in this in any way. And he drafted the most
passionate dissent to that effect. He seems to have been the ringleader of
the dissenters, really. And Justice Scalia was his opposite number on the
other side of the spectrum. He felt that the recount was illegitimate from
day one, and he wanted to stop it. And all of the other justices were really
somewhere in between those two poles.

GROSS: When the Supreme Court decided to stop the Florida recount, Justice
Scalia wrote, `Count first, and rule upon legality afterwards is not a recipe
for producing election results that have the public acceptance democratic
stability requires.' The clerks who spoke to you, some of them said that they
were amazed at how baldly Justice Scalia was pushing what they considered to
be his own partisan agenda. What did they tell you?

Mr. MARGOLICK: Well, they told me that Scalia seemed hell-bent on stopping
the recount as quickly as he possibly could, and that the fear seems to have
been that Gore was going to go ahead, and that he was so anxious to stop the
recount that at one point, Justice Stevens had to ask for extra time to
complete his dissent. That's how much of a hurry Scalia was in.

GROSS: What Scalia is saying in the part that I quoted is that if the court
is going to rule on the legality of the vote, it's better not to count the
vote first, because then if the vote--if they decided that the recount was
illegal, but the recount went to Gore, it would challenge the legitimacy of
Bush. I mean...

Mr. MARGOLICK: Yeah. What was the...

GROSS: ...did the other justices not think that he had a point there?

Mr. MARGOLICK: Well, I think that, and history has proven that the
legitimacy of the Bush presidency, I think suffered from the Supreme Court's
decision rather than was enhanced by it, so that, you know, that Scalia's
concern for legitimacy were not borne out. I mean, the Supreme Court didn't
do Bush a favor by ruling in the way that it did. Bush may well have emerged
as president from the political process that the founders had laid out. It
would have been messy, no doubt, but that was the procedure and no one would
have faulted the Supreme Court for letting that procedure play out in the way
that the founders envisioned.

GROSS: Well, one of the reasons that the Supreme Court gave for stopping the
recount in Florida and the decision that ended up in Bush being declared the
winner, was that the recount was violating the equal protection clause,
because different counties were counting in different ways or evaluating the
votes in different ways so that voters were not equally represented. So this
violated the equal protection clause. But the first time the case came to the
Supreme Court, the Supreme Court discounted that the equal protection clause
was relevant in their understanding of the case. Can you explain what counted
for that contradiction?

Mr. MARGOLICK: Well, the clerks would have said that the court was fishing
around for a rationale to base its decision, its sort of pre-ordained
decision. And equal protection, which was disparaged at the beginning,
emerged as the only argument on which five of the justices could agree. And
so as the case went on, the equal protection argument loomed larger and
larger, even through it had been kind of disrespected at the outset.

Justices O'Connor and Kennedy didn't sign on to the more structural argument
that the other three justices in the majority supported, about how the Florida
Legislature's authority had been usurped by the Florida Supreme Court, and the
question is, why, then, did those two in particular find equal protection a
more appealing argument? And I think that, you know, the explanation would
be that there's a kind of intuitive appeal to the argument. I mean, one can
easily argue that in the best of all possible worlds, all the counties in
Florida would have followed the same procedure and judged the ballots in the
same way, and there was a kind of intuitive unfairness to the different ways
in which they did it in different jurisdictions. I mean, this is what Justice
Breyer alluded to in his dissenting opinion.

But what's important to note is that elections are riddled with those kinds of
inconsistencies, you know, far more important inconsistencies, for instance,
like the kinds of voting machines that were used and how the older voting
machines that were used in poorer jurisdictions routinely threw out far more
ballots than the newer voting machines in wealthier jurisdictions. And the
court had never stepped into something like that before. They never declared
that an equal protection violation. So to the clerks, it seemed as if they
were reaching for a rationale, and they were applying a doctrine that had
never been applied so profligately before in the election area, and it seemed
just like a rationale to them, a stretch.

GROSS: Now you say that Justices Breyer and Souter thought that if the equal
protection clause was being violated, that if some of the justices believed
that the solution was to send the case back to the Florida Supreme Court and
insist that the Florida Supreme Court set an equal standard for all the
counties who were participating in recounts. Did you learn anything about why
that argument lost within the court?

Mr. MARGOLICK: Well, I think that the interesting thing is that the Florida
Supreme Court was in a very tough bind. It couldn't stretch very far without
the Republicans claiming that it was making new law, and so therefore, it
hadn't set this kind of standard. But this is what Justices Breyer and Souter
were saying, just give the--if equal protection is a problem, let's just give
the Florida Supreme Court the chance to set a standard and we can take care of
it. And the interesting thing about the argument was that they thought that
since Kennedy and O'Connor, or Kennedy in particular, was going off on equal
protection and was concerned about the perceived unfairness of the different
standards in the various jurisdictions, that they might be able to peel him
away from the majority and they phrased their opinions accordingly.

I mean, they tried to win him over by conceding his point and saying, `Yes,
there is a fairness problem here, but it can be fixed,' and they thought that
in that way, they could move him from the other side to their side and keep
the recount going. But it turns out to have been a kind of miscalculation,
because they almost conceded too much, and their opinions were later construed
to mean that they actually agreed that there was an equal protection violation
rather than just a matter of unfairness, that it rose to constitutional
dimensions. And the defenders of Bush v. Gore afterwards could say the
decision was not really a five-to-four decision, but a seven-to-two decision.

GROSS: David Margolick is one of the authors of the article The Path to
Florida, published in the October issue of Vanity Fair. He'll be back in the
second half of the show. I'm Terry Gross and this is FRESH AIR.

(Soundbite of music)

GROSS: Coming up, more of our conversation with David Margolick about the
Supreme Court and the 2000 election. Then we talk with Dan Seligson, author
of the report Election Preview 2004: What's Changed, What Hasn't and Why.
He's with the non-partisan group electionline.org.

(Soundbite of music)

GROSS: This is FRESH AIR. I'm Terry Gross, back with David Margolick. He's
one of the three authors of the article The Path to Florida. Several people
who served as Supreme Court clerks in 2000 broke their confidentiality
agreements to speak with him about what happened behind the scenes during Bush
V. Gore. Justice Stevens wrote in his dissenting opinion, `Although we may
never know with complete certainty the identity of the winner of this year's
presidential election, the identity of the loser is perfectly clear. It is
the nation's confidence in the judge as an impartial guardian of the rule of
law.'

I asked David Margolick what he learned about how the justices in the majority
reacted to what Justice Stevens wrote.

Mr. MARGOLICK: And there were memos from both Justice Scalia and Justice
Kennedy accusing the minority, the dissenters, in the case of disparaging the
court, of trashing the court, of writing sort of hyperbolic rhetoric that
would come back to hurt the Supreme Court, all under the guise of protecting
the Supreme Court--I mean, very unusual rhetoric to come from one justice to
another.

GROSS: Now you wrote that Justice Ginsburg included a footnote in her opinion
about the African-Americans in Florida who were stripped of their right to
vote. And Justice Scalia, you say, asked Justice Ginsburg to delete that from
her opinion, and she agreed to do it. Is this information that the clerks
gave you?

Mr. MARGOLICK: This is information that the clerks gave me. And I think it's
a very interesting story because, you know, the public at large knew that
there was a large racial dimension to what had happened in Florida. And, you
know, there were all of these stories circulating already about the
disenfranchisement of black voters and voters being turned away and roadblocks
and all of this. I mean, if ever there was an equal protection concern, that
was it. That something as important as that was, first of all, relegated to a
footnote and that that footnote was the only reference to race in any of the
court's opinions and--whereupon Scalia sent a memo to--in his memo criticizing
the tone of some of the dissents, he referred to Ginsburg's footnote as `her
Al Sharpton footnote.' I mean, really, you know, sort of an acidic way of
describing a very real problem in Florida and sort of moving it into the realm
of demagoguery. And Ginsburg just sort of meekly removed the footnote from
her opinion and thereby cut out the only reference to race in any of the
decisions. And I think that some of the clerks were very disappointed with
that.

GROSS: If this presidential election ends up in the courts, what aspect of
the Supreme Court decision from 2000 might apply or, you know, have some sway
this year?

Mr. MARGOLICK: Well, I suppose it would only be, you know, in some kind of
equal protection argument. The court, by injecting equal protection into
electoral procedures in a way that it never had before, it opens up an avenue
toward, you know, innumerable challenges to voting procedures all over the
country. And this is what happens when the court sort of expends its
authority profligately, as it did here. It's just an invitation to trouble
because the courts have generally wanted to stay away from all of this. And
even though the Supreme Court specifically, rather lamely, said that this case
applies only in this instance, that's not the way that lawyers and litigants
are going to read it. And if this election is close--my personal feeling is
that it won't be, but even if it is and even if it's not as close as it was
the last time, the doctrine is out there and it's available for lawyers, and
lawyers are going to use it. And it could be very messy.

GROSS: How do you think it could be used?

Mr. MARGOLICK: Well, you know, voting is messy, you know? I suppose it could
be used in connection to voting machines. I mean, it could be used in
connections with different kinds of ballots. You know, there are just any
number of ways in which the procedures in one county are different from the
procedures in another. And in every one of those instances now one could
raise an equal protection claim.

GROSS: Well, we learned this week that Chief Justice Rehnquist had thyroid
cancer. He had a tracheotomy this week. He's 80. And there's a lot of
speculation now about how long he will remain in the Supreme Court. Here's
what I've been wondering. If President Bush lost the election to John Kerry,
but if Justice Rehnquist left before John Kerry was sworn in--and this is all
hypothetical--would President Bush still have the authority to appoint a
successor? And if John Kerry didn't like that successor, would John Kerry
have any power to change it? Like, what would that process be? I'm just
giving a lot of hypotheticals and playing this out because I think it's a very
unusual situation that we might be in.

Mr. MARGOLICK: You know, I think that it's an unlikely situation. I mean,
even, had there been a vacancy a year ago, it would have been very difficult,
depending on whom Bush would have named, for Bush to get a replacement. I
mean, there's a certain paralysis that sets in even before an election, and
that paralysis would be total after an election. And so there's absolutely no
way that Bush could name any kind of interim replacement and get him
confirmed.

I think another interesting dimension to Bush V. Gore--and the Rehnquist
matter is related to this--is that many people feel that several of the
justices, Rehnquist among them, O'Connor also, had wanted to quit after Bush
was elected. They wanted to resign during this last presidential term, but
they felt that it would have looked improper for them to do it because it
would have looked like a quid pro quo that Bush would have gotten the chance
to pick their successors, and so, therefore, another kind of paralysis set in
over the last four years and the court remained in place and its membership
remained intact. And as Ron Klain, Vice President Gore's former chief of
staff, put it, `By ruling in the majority, as they did, the five justices sort
of sentenced themselves to four more years on the Supreme Court.'

GROSS: Well, I want to thank you very much for talking with us.

Mr. MARGOLICK: It's my pleasure. Thank you for having me.

GROSS: David Margolick is one of the authors of the article The Path to
Florida published in the October issue of Vanity Fair.

Coming up, what reforms have been enacted since 2000? And what problems can
we still expect to face next week? We talk with Dan Seligson, editor of the
report Election Preview 2004. This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: Dan Seligson discusses various voting systems used
around the country
TERRY GROSS, host:

Election reform bills have been passed to prevent the kind of problems that
brought the Florida vote to the courts four years ago, but we still face
plenty of potential nightmares. My guest, Dan Seligson, edited the report
Election Preview 2004: What's Changed, What Hasn't and Why. He's with the
non-partisan group electionline.org which provides up-to-the-minute news and
analysis of election reform. It's run by the Election Reform Information
Project.

Florida passed an election reform act in response to the problems of 2000. I
asked Seligson if that means there will be no hanging chads this time around?

Mr. DAN SELIGSON (electionline.org): There will be no hanging chad in
Florida. That's not to say there won't be any problems in Florida. I think
Florida, appropriately, was the first state in the country to acknowledge
their mistakes in election administration and to have a comprehensive plan
for reforming the way that they do elections.

By early 2001, the state had already appropriated money and passed a fairly
comprehensive bill that ensured, first, we wouldn't have these punch cards
around anymore in the state. Second, the state would have a recount standard
so that, in the event of an extremely close race, less than 1/4 of 1 percent
of the votes separating the candidates, it would be an automatic trigger for a
recount. And, third, it established something called provisional voting which
ensures that no legally registered voter is turned away from the polls without
being offered at least an opportunity to cast a vote.

GROSS: OK, so there will be no more punch card ballots in Florida. What kind
of machines is Florida using?

Mr. SELIGSON: Florida's using two types of voting systems. Most of the
state, I believe about 54 or 55 of the state's 67 counties, are going to be
using something called optical scan. These are familiar to any teen-ager
taking the SATs. It looks like a piece of paper where you fill in the circle
or complete an arrow. It's then fed into a machine that determines what your
votes were. They have both a machine record--the scanning machine--and then
they have a paper record if they need to hand count--if they need to count the
ballots by hand, they have a record of those as well.

GROSS: And the rest of the state?

Mr. SELIGSON: The remaining 12 or 14 counties are using something called
direct recording electronic machines which are better known as touch screens,
though that's not always accurate. These machines are--basically as the name
implies, the vote is recorded directly onto an electronic format. So a voter
will touch a screen, depending on their choice, that's saved magnetically,
sometimes on a paper journal. And then that vote count is then fed into
another computer which then can almost instantaneously give you your results.

GROSS: So there's no paper trail on these machines, but is there a way of
doing a recount?

Mr. SELIGSON: Well, what the state decided actually in the last month was
that, in the event of a manual recount, this less than 1/4 of 1 percent of the
vote, they would look at individual ballot screens. This has done little to
assuage the concerns of those people who think there should be no paperless
voting because essentially what you're having a machine do is, if it made a
mistake, if it failed to register a vote, it's just going to replicate that
mistake when it shows you the ballot image. But what they can do in Florida
is they can look at each individual ballot image and determine if there's some
sort of discrepancy between the total count of votes that the machine is
giving out and the individual ballots that they're looking at.

GROSS: Do you think Florida's any better off than it was four years ago in
terms of, you know, voting accuracy?

Mr. SELIGSON: I think the old concerns are gone, the concerns about how votes
are counted, how recounts are triggered. Those concerns are gone. I think
what we have now are new concerns, concerns over how you can do a recount with
an electronic voting machine, what happens if votes are lost? In January of
this year, there was a special election in Florida that was decided by about a
dozen votes, and the machine produced 139 non votes or under votes. Keep in
mind, there's only one race on the ballot, so we've got two people's names and
two boxes that a touch screen voter can touch. The final result was that
there were 137 fewer votes than there were people who showed up at the polling
place that day, so the question is: What happened to those votes? Did those
voters intend to walk into the polls, sign in, go up to a machine and walk
away without voting? Or did the machine lose those particular votes? With
using an electronic machine that has no paper backup, they don't know.

GROSS: So how did Florida resolve the fact that there were so many under
votes?

Mr. SELIGSON: The resolution was the vote count was the vote count, end of
story. That's all they could do.

GROSS: Well, looking ahead to the presidential election, what's going to
happen? I mean, have they done anything to address this problem?

Mr. SELIGSON: No, they haven't. And there were some suggestions that came
out that maybe Florida should have an option on these electronic machines that
say `no preference.' So instead of having to vote for one of the presidential
candidates, if you really don't like any of them, rather than holding your
nose and picking or walking away, you would just hit `no preference.'

GROSS: A kind of none-of-the-above-type thing?

Mr. SELIGSON: Exactly, exactly. And that way you can determine the voter
intent. You can see that this voter--they didn't lose their vote, they didn't
want to make a vote.

GROSS: If you're just joining us, my guest is Dan Seligson of the group
electionline.org, a non-partisan group that's just published a new report
which he edited on the state of election reform.

Let's get an overview of voting machines in the United States. I was
surprised to find that more than 70 percent of voters in Ohio, which is a
battleground state, are using punch card ballots. Are they likely to have
hanging chads?

Mr. SELIGSON: Well, Ohio, like many other states, looked at what happened in
Florida and decided they didn't want quite the same problems in the event of
some kind of a recount. What Ohio did was make a standard of what constitutes
a vote and made it statewide. A vote on a punch card system in Ohio is at
least two chads removed from the card--which is, if you remember from 2000,
sort of your chad primer, this is the hanging chad--that's a vote. A
pregnant chad, not a vote. So the fact that they have these standards and
that they have a way of counting votes across the state should help them avoid
Florida-type problems.

GROSS: What percentage of Americans are likely to have electronic or e-voting
machines?

Mr. SELIGSON: Well, 30 percent of registered voters live in jurisdictions
that use electronic voting machines. I think we've seen early indications in
Florida and elsewhere that some voters may decide that they want to vote a
paper ballot instead, either an absentee ballot or, in the case of some
counties in California, just an optical scan ballot instead of having to cast
a ballot on one of these paperless systems.

GROSS: Now you say that only machines in Nevada will have a paper trail.
Most of the other e-machines don't have paper trails?

Mr. SELIGSON: Right, none of them do. Well, there's a difference. A paper
trail can also include--and the manufacturers of the machines will tell you
this--a paper trail can be a journal, sort of a combination of all the votes
of the day without showing each individual vote in detail.

What Nevada has is called a voter-verified paper audit trail where you can
actually see every single vote in each race. And the voter will take a look
at that sort of behind a piece of Plexiglas, and before they decide to cast a
ballot, they're going to OK what they see on the paper as well as what they
see on the screen.

GROSS: Why do you think that all the states, except for Nevada that are using
e-voting machines, chose to have machines that don't have a paper trail?

Mr. SELIGSON: Well, keep in mind not every state is using electronic voting
machines. Some states are going to be using primarily optical scan. In New
York state and Connecticut, they're going to be using entirely lever machines.
So these machines are not nationwide, although there's electronic voting
fairly widespread in most of the country.

Some states made the decision that they want to do a Nevada-type system, to
have these voter-verified paper audit trails, but they didn't think they'd be
able to get everything done in time for the election. California has an
administrative rule that by 2006 they're going to have these voter-verified
paper audit trails with their electronic voting machines. Ohio's going to do
the same thing.

GROSS: So do you think that's the direction the country's headed in?

Mr. SELIGSON: You know, I think it really depends on how things go on
Tuesday. If these voter-verified paper audit trails work well in Nevada, if
electronic voting seems to work smoothly in the rest of the country where
there aren't voter-verified paper audit trails, if we have a breakdown of the
paper trails or a breakdown of electronic machines, we could see some
significant movement from states in coming years about how they're going to
upgrade their voting technology, whether they're going to have these paper
trails or not.

GROSS: Well, one of the companies that manufactures electronic voting
machines is Diebold. And this has been a company surrounded by controversy
because, in part, of a 2003 fund-raising letter by its CEO, Walden O'Dell, who
was inviting guests to a Republican fund-raiser. And in this letter, he
pledged, quote, "to deliver Ohio's electoral votes to the president," unquote.

Now do other voting machine manufacturers also make big political
contributions in the way that Diebold does?

Mr. SELIGSON: Well, we did a study on this earlier this year. Diebold--I
think, fairly or unfairly, because they're a public company, we can see
everything that they do. It's very transparent. The other major voting
machine companies are not public. It's much harder to track their
contributions. However, the other voting machine companies don't do anything
but elections, for the most part, and Diebold, as most of us know if we use
ATMs, make just about every bank machine in the country. So Diebold has much
more diversified products and has some needs to, like other banking companies,
you know, influence in that area, not just voting machines.

So Diebold is very transparent. We can see what they do. The other companies
aren't. You know, we had to go through a number of different documents just
to determine who the members of the board on these other voting machine
companies were because that information wasn't public and they didn't want to
give it out. So it's much easier to tell what Diebold is up to.

But these companies have all had a fairly minor role in giving money to
candidates. I think the most significant contributions came in 2002. There
was a bond measure in California that ended up passing that had a significant
amount of money from the state to purchase new voting technology. And Sequoia
and a couple other voting machine manufacturers gave money to that effort.
That, clearly, is in their best interest to have this bond measure passed.

GROSS: My guest is Dan Seligson, editor of the report Election Preview 2004
published on electionline.org. We'll talk more after a break. This is FRESH
AIR.

(Soundbite of music)

GROSS: My guest is Dan Seligson, editor of the report Election Preview 2004
which you can find on electionline.org.

A lot of people are saying that Ohio is going to be the next Florida because
Ohio is a battleground state, because it looks like the vote will be very
close, because they're using punch card ballots and because there's already
been a lot of argument over newly registered voters. What do you make of
that?

Mr. SELIGSON: Well, I would even add to that list, and that's a pretty good
list that it could lead to another Florida. I've heard projections today that
there could be as many as 200,000 provisional ballots. In a state where each
candidate seems to be getting about 48 percent in opinion polls, I don't think
either candidate's going to win by more than 1/4 million votes. So we're
looking at potentially each provisional ballot being under the microscope by
each party to see whether it's going to count or not.

There's an excellent likelihood of Ohio being another Florida. Frankly,
there's a good likelihood of Florida being another Florida, if you don't mind
the phrase. I think there's potential for problem in every state that both
parties desperately need to win and the election is going to be extremely
close.

GROSS: Why don't you explain what a provisional ballot is?

Mr. SELIGSON: Sure. A provisional ballot was a safeguard put in place
specifically to deal with what happened in Florida in 2000 where thousands
upon thousands of voters, primarily African-American voters, were disqualified
because they were somehow wrongly removed from the state's voter registration
rolls and the county voter registration rolls.

What provisional voting does is, if you are a voter who believes you're
registered but you show up at a polling place and your name is not on the
registration rolls, you're given this provisional ballot to vote, rather than
being sent away. The ballot is then segregated from the main ballots, and
your eligibility is determined after you leave the polling place.

The second part of this is the voter needs to be informed of whether their
vote was counted and, if not, why not. That's usually accomplished through a
toll-free number or a Web site. In some states, we have both.

GROSS: Well, that sounds like a very time-consuming process, doesn't it?

Mr. SELIGSON: It could take as long as half an hour to 45 minutes per ballot.
This is some estimates that we've gotten from Los Angeles County who's used
them for a number of years. So, yes, it could be extremely time-consuming.

It's also important to remember that while provisional ballots are new to a
state like Florida, they're not new to Ohio. They've used them before. What
is new is this notification system where voters will be able to find out
whether their ballot was counted.

So imagine, if you will, every punch card ballot that was held up to a light
in Broward or Palm Beach County now has a name attached to it. These voters
will know if their ballot wasn't counted. And, believe me, they'll raise a
stink if their ballot wasn't counted and they believe it should have been.

So we have this added wrinkle in Ohio and, frankly, in every state using
provisional ballots that it's no longer anonymous. Let's say a Bush voter
lives in a county that's mostly Democratic and their provisional ballot was
rejected, they're going to claim it was party politics. Same with Democrats
living in a Republican area. They're going to claim that their ballot was
rejected for no other reason than they didn't vote for the person that, you
know, they were expected to or wanted to vote for.

GROSS: Is there like an appeal process to this?

Mr. SELIGSON: For provisional ballots, my understanding is there is no appeal
process. Each ballot's eligibility is determined. The appeal process would,
unfortunately, be the court system.

GROSS: Now what are some of the reasons somebody would have a provisional
ballot?

Mr. SELIGSON: Well, one of the reasons why they're expecting so many
provisional ballots in Ohio is that there's so many new voters in Ohio. The
reason why a voter would need a provisional ballot--let's say they filled out
an application for registration a month ago but somehow, through some
unexpected loss in the mail, it never gets to their house. They're not sure
exactly where they're supposed to vote, they show up at the wrong place and
their name isn't on the list.

Let's say someone who's homeless registered. They would never get anything
sent to them because they have no fixed address. Let's say that the DMV
didn't properly process the application and get it to the voter registrar so
the person isn't on the list. So there's all kinds of reasons why there will
be provisional ballots. I think any time you have a major bureaucratic burden
just before an election, and this would be piles and piles of new
registrations, the likelihood of provisional ballots is going to increase
sharply.

GROSS: Both sides, the Democrats and the Republicans, have already dispatched
thousands of lawyers around the country, basically waiting for vote
challenges. With so many lawyers from each side, do you think it's inevitable
that we're going to be facing lots of lawsuits on Election Day?

Mr. SELIGSON: I think so. You know, you have the terrifying image of armies
of lawyers marching down to Florida. You know, you have to wonder, with this
many people looking for trouble, what are the chances they're going to find
it? I think the chances are excellent. They're going to find trouble. I
think both parties don't want to be caught unprepared if we have a similar
situation to 2000. They want to be on the ground and ready to go the minute
the polls close. Sometimes they want to be on the ground and ready to go
while the polls are still open.

GROSS: You're not a pollster so I really shouldn't be asking this to you
but...

Mr. SELIGSON: Try me. I read them every day.

GROSS: OK, yeah. So what do you think the odds are that we're actually going
to know who the president is on Election night?

Mr. SELIGSON: Well, I think we have an excellent chance of going to bed on
November 2nd not knowing who the president is for a couple of reasons. First,
it's going to be extremely close, and I think states are going to be more
careful than ever to release projected vote totals. I think they're going to
want to wait until they get, you know, pretty good information before they
release anything.

I think the group that's going to give the projections to the media is going
to be more careful than they ever have been before. It's their first time
doing it. The conglomerate that did it in 2000 no longer exists, so I think
that the networks aren't going to be racing to see who's going to declare the
winner first. I think they're going to be nervously, you know, looking back
and forth on their monitors to see who's going to dare and declare it first.

I think the number of provisional ballots we could have in some states could
exceed the margin of victory, in some cases, by a significant margin. And I
don't think anyone is going to want to take a chance and guess how that's
going to turn out.

So there's an excellent chance we won't know on November 2nd. You know,
whether it takes 36 days or whether it takes an extra two, that's really up in
the air right now. I would lean more on the side it could take an extra day
or two.

GROSS: Well, thank you very much for talking with us.

Mr. SELIGSON: Sure.

GROSS: Dan Seligson edited the report Election Preview 2004 which you can
find on electionline.org. The Web site is run by the Election Reform
Information Project.

(Credits)

GROSS: I'm Terry Gross.
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.