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HOME > ARTICLES > SEPTEMBER 2003

CHECKING THE CHAD

by Judge Charles Burton

Introduction by Jeannine Coup

There have been several hard fought and hotly contested elections in American History. The election of 2000 will definitely leave a foot print on the pages of time. Our children and grand children will, as they study presidential history, ask us, "Do you remember the dimpled chad election?"

Pictured in history books when the year 2000 is discussed will be a photograph of Judge Charles Burton determining if a ballot should be counted in Palm Beach County, Florida. Elections and voting procedures are and will continue to change because of this election. APIC members who attended the awards breakfast at the National Convention in Orlando on August 1st were honored when Judge Burton of Palm Beach County spoke to those assembled about the 2000 election and the role he played. He gave us a deeper understanding of that particular election, and left us much to think about for the future.

The membership of the APIC extend their gratitude to Rob Shepherd and Tom Peeling for requesting and Judge Burton for speaking to those assembled at the breakfast meeting. What follows is Judge Burton speech in its entirety as delivered at the breakfast.

I want to thank Tom Peeling and the members of the American Political Items Collectors for inviting me to speak on a topic that I could probably talk for hours about. However, given that In only have a short time I thought I would address my remarks to a few of the issues I found important in the 2000 election.

My position as a judge requires me to be neutral and non-partisan. We are supposed to stay out of politics, yet ironically, I had only been appointed to the bench 6 months before the 2000 Election and was faced with being placed in the most high stakes political process anyone could imagine.

In August, 2000, I was told by the Chief Judge that I would chair the canvassing board, to which I replied "what the hell is a canvassing board and what do I do?" He told me because it was a presidential year I would have to work a little late November 7th and all you do is hang around and supervise the testing of the voting equipment. He lied!

I do think it was inevitable that the judiciary would play a role in the 2000 election once the recounts started, but who could have ever predicted that role would be all the way from a local county court judge all the way up to the United States Supreme Court. For me it was interesting to see that the very same issues that concerned us at the local level were the same issues the United States Supreme Court eventually decided made Florida Law unconstitutional.

First and foremost was the lack of uniform standards in reviewing ballots. I will guarantee you that prior to this election, you would not have been able to find one elections official throughout this Country that would have believed that dimples, indentations, or impressions on a ballot card should be counted as a vote.

While one party wanted us to count things you couldn't even see, it became apparent that the other party wanted to see to it that we never finished counting. Ultimately, this created a major problem because not only were the rules different from county to county, but the rules changed half way through the process within a county. My concern from the outset was that this process must be open because if people felt that the process was geared toward achieving a certain result, rather than achieving a fair result, the public would not have confidence in it. In addition to the lack of standards, we had to deal with Florida Law. The election law in effect at the time was really designed for local county elections. It was never written with the intent of recounting a national or statewide election. Recounts were extremely rare and not favored, because for the most part, election officials knew that the vote counts never changed very much.

For example, in 1992 in Broward County, which is in the Ft. Lauderdale area, a candidate lost an election by five votes and was denied a recount. In September, 2000, in Palm Beach County we had a state legislative race decided by 14 votes. The losing candidate asked for a recount and I recall Carol Roberts, our County Commissioner, stating that you never get any votes in a recount and we unanimously denied the request. Two months later, Al Gore won Palm Beach County by 120,000 votes and we were recounting ballots.

The basis for a recount request in Palm Beach County was that many voters were confused by the so called Butterfly Ballot, and as a result, voted for a candidate they did not intend to vote for. However, if the real reason for a recount was due to ballot design and voter confusion, why were they doing a recount in Broward, Dade, and Volusia Counties?

In reality, the recount was never going to accomplish what the Gore supporters wanted to accomplish. For example, if you recall there were some 3000 votes for Pat Buchannon in a largely elderly Jewish precinct. Even if these people voted for him in error it wasn't going to allow us to change the vote. Statistically, the dimpled and dinged ballots were going to go for each candidate by their percentage of the vote. Finally, any voting expert will tell you that even the punch card ballot system is more accurate than a hand recount.

I recall one ballot where every presidential candidate was punched out except Al Gore. The Democrat lawyers argued that showed the intent to vote for Gore. The Republican lawyers argued that it showed their intent to vote for anybody but Gore.

What was interesting was the political machinery at work for both sides. At the time, I never really appreciated what was at stake, but clearly it was being able to become a Washington insider and power. Both sides had lawyers and volunteers from all over the Country. Many were working for free. As I now look across the list of the Bush Administration people in Washington, I recognize so many names of the people who were involved in the Florida recount. For me, one of the most frustrating things has been the partisan politicians having to find a scapegoat or someone to blame. There is something about people in this country that it must be somebody's fault. Let's face it, inserting a paper ballot and punching a hole in a piece of paper is not that difficult. Yet, the only thing the voters will tell you is that they voted for the wrong person. My response, of course, is if you knew you voted for the wrong person, why did yo do it?

The truth is, there is no one to blame. No one could have seen this coming because if they had, they certainly would have corrected the law to provide for it. Every time a decision was made I was accused of having done it because I had been a registered Democrat or because I was appointed to the bench by a Republican Governor. As I read and heard these things I kept thinking of what Janet Reno said during the Elian Gonzalez issue, "your damned if you do and damned if you don't." The real issue in the election was the under votes, and that has been a problem across this country for years. You never heard of it before, you never heard politicians talk about those disenfranchised voters. The reality is that you could go to any county in any state across the country and if you placed it under the same microscope Palm Beach County was placed under you would have found just as many problems.

We should not forget that well over 450 thousand people in Palm Beach County voted correctly and in Duval County, in the Jacksonville area, a county with far less people and no butterfly ballot, they had more under votes than Palm Beach County. Finally, there were more under votes in Palm Beach County in the 1996 presidential election than in the 2000 presidential election.

There are some myths that still exist about the Florida recount:

1. The Democrats just wanted to count all of the votes: The truth is, they just wanted to recount the votes and they only wanted to do it in four of 67 Florida Counties. At the first hearing before the Florida Supreme Court, the justices gave them the opportunity to request a statewide recount. They turned it down. Of course, so did the Republicans.

2. The Republicans wanted a fair recount: The truth is, the Republicans didn't want any recount. No party that is in the lead ever wants a recount.

3. A manual recount of votes is reliable: It is absurd to believe that a process which is subjective and one where the results change depending on what standard you use to look at ballots could ever be more reliable than a machine or computer. Just look at the results of the various media recounts, which change depending on the standard that was used.

4. The votes were never counted: The votes in the 2000 election were counted in Florida the same way they had been for the past 30 years. Under votes had been around for the past 30 years; the only difference is, you never heard anyone talk about it and never heard politicians express any concern over voters who were disenfranchised.

In the end we had our highest court decide this issue. Whether or not you agree with that opinion, it is important to note that 7 of the 9 justices found problems with Florida law and the recount process. However, for me personally as a lawyer and judge, it was an incredible experience to have been in the U.S. Supreme Court to hear Chief Justice Rhenquist call the case of George W. Bush v. The Palm Beach County Canvassing Board.

I had gone up there the night before and around 11:00 p.m. Heard that there were people standing in line in front of the Supreme Court building. It was amazing to see 250 young people camping out in the freezing cold for a chance to see the Supreme Court arguments, instead of waiting in line for a rock concert.

It was also interesting to be recognized as a celebrity wherever I went. I recall the first time someone asked me for ny autograph. I looked at them like "you can't be serious." But I guess they recognized a good political collectable when they saw it. Although my wife will tell you that while the fame was nice, a fortune would have been a lot better.

I was also surprised by the hundreds of letters and telephone calls that I received from people all over the country. Most were extremely nice and were from people who just wanted to say thank you. Although I do recall a letter I received from a woman in Texas who told me that she had been adopted and was looking for her biological father who was from Florida and that she looked a lot like me. I was relieved to learn, however, that I was only three years older than her, so I had an alibi.

This experience truly demonstrated democracy in action. I do believe there is a silver lining in that people have once again become interested and involved in our election process. Unfortunately, the events of 9-11 and the war in Iraq have brought to bear other important issues for our country to deal with.

Finally, I am truly honored by having had the opportunity to have been a small part of history. I got the biggest kick when one of my daughter's friends was away at college last summer and opened her textbook finding a picture of me looking at a ballot.

As a country we need to make sure that everyone's vote counts, but that vote needs to be counted at the polls when they cast their vote. At least we have corrected the law in Florida so that this fiasco will not repeat itself. Now, recounts are jurisdictional so that a statewide race means a statewide recount. A party can't pick and choose select counties that may be more favorable to them. Of course, true election reform, like anything else, takes money so it is really up to the State and Federal legislatures to put dollars into the system.

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