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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

There's a lot of talk about rejected military absentee ballots, but Talking Points still isn't convinced that a lot of civilian (and thus more likely Gore) absentee ballots weren't rejected in Broward, Miami-Dade, Palm Beach and other counties. Yesterday's New York Times says that "Lawyers for each party made sure that each envelope containing civilian ballots met the stringent requirements of state law, including having the voter's signature and the date, with the signature crossing the seam where the ballot is sealed, and having the signature of a witness who is either a notary or a registered Florida voter [italics added]."

But a Talking Points reader in Israel, who tells me he helped others navigate the paperwork of absentee-ballot-dom, says there was never any mention of this requirement in the absentee ballot instructions. And he actually seems to have some proof to back up his claim. The Federal Voting Assistance Program website has instructions for obtaining and completing overseas absentee ballots. And the site has information for how to deal with absentee ballots for citizens of each state - information gathered from the state authorities.

But on the Florida section of the site there is no mention of needing a notary or a registered Florida voter to witness your ballot.

Now Talking Points has to admit he got pretty confused reading this material. It took him a while to realize that a good bit of the information on the site applies to the card you send to get your absentee ballot.

But ... but the document does clearly state: "When returning a voted ballot, the certificate on the return envelope must be witnessed by one person over the age of 18. The name and address of the witness are required on the certificate."

No notary, no registered voter Floridian required!

Who's responsible for this screw up? The Feds or Katherine Harris? Did it say something different on the absentee ballots themselves? And how many civilian votes got tossed because of it?

P.S. Talking Points has to admit that he's still a little confused about this; but he thinks he got it right.

An update on how Gore's doing in the recount: according to CNN, with roughly 30% of the precincts counted in Palm Beach County, there are some 1000 ballots which have been set aside as under dispute. Those will later be reviewed by the canvassing board and, in all likelihood, later by a court. What does that mean? That a Gore-friendly resolution of the chad question could well give the veep enough votes to move ahead of Bush.

The new Republican line is that all the mess going on down in Florida is the result of the Democrats' decision to "depart from the rule of law." (I'm calling this the new Republican line because they're all using it on the Sunday morning shows - especially Sen. Fred Thompson on This Week.) But wait a second: aren't law courts the font of the "rule of law"? I know there a difficulties aplenty with getting elections into the courtrooms. But for serious "rule of law" theorists the rule of law is all about independent courts, an independent judiciary, and - yes, god forbid - lawyers. Process, process, process! Procedure, procedure, procedure! Give two hypocrite points to the GOP on this one.

Several Talking Points readers have pointed out the answer to the apparent contradiction noted in last night's post: i.e., why the Republicans are going ballistic over the hand-recounts at precisely the moment when those counts don't seem to be going as well as the Democrats had hoped.

The answer? These unofficial estimates coming out of Broward and Palm Beach don't include a growing stack of disputed ballots with dimpled chads and pregnant chads and so forth. Depending on how the Florida Supreme Court rules those ballots could throw the count decisively in Al Gore's direction. So, yes, the Bush folks do have reason to be worried.

One more question. The new Republican battle cry is over these tossed out military absentee ballots that don't have postmarks. The GOP is really sharpening the blade on this one - trying to characterize this as a Dem effort to disenfranchise soldiers. (Ahh … what a responsible thing to say.) But according to the New York Times, "In counties carried by Mr. Bush, 29 percent of the overseas ballots were ruled invalid, but in counties carried by Mr. Gore, the figure was 60 percent." It sounds like Gore's ox is being gored more than Bush's. Are those tossed out ballots in the Gore counties military ballots or are they civilian ballots? That's the question Talking Points hasn't heard the answer to. The Times article seems to imply that the thrown out ballots in the Democratic counties were military ballots, but doesn't quite say so.

Do you notice something odd? The Bush campaign today launched a ferocious attack on the hand counting procedures being used in Palm Beach and other counties in southern Florida. They're no longer challenging hand-counting as inherently unreliable and perhaps open to 'mischief,' they're leveling explicit charges of ballot tampering and fraud.

The Bush folks are also charging the Democrats with plotting to toss out military absentee overseas ballots because they lack postmarks. Bush surrogate, Montana governor Marc Racicot charged that "the vice president's lawyers have gone to war in my judgment against the men and women who serve in our Armed Forces. In an effort to win at any costs, the Democrats have launched a statewide effort to throw out as many military ballots as they can [italics added]."

(This, you might say, is the Bush team's effort to play the Sturm und Drang, Stab-in-the-Back, Last-Days-of-the-Weimar-Republic card.)

The implication of this quickly escalating rhetoric is pretty clear: the Republicans are scared to death of what might be found in those hand counts.

The problem is that the hand counts don't seem to be going that well for the Democrats. At least that's what CNN and the rest of the nets seem to be reporting. A hand recount of a third of the precincts in Broward county yielded only 59 new votes for the vice-president. A Democratic member of the Palm Beach canvassing board said he wasn't "seeing much of a change" in the vote totals so far in the recount in his county. Gore's got to get a thousand votes to catch up to Bush; and it doesn't look like it's going that well.

So what gives? What does the Bush campaign know that the rest of us don't?

As of late afternoon on Friday only about a half-dozen Florida counties had reported their overseas absentee ballot totals. But the results weren't pretty. So far the numbers are running 31 to 10 in favor of George W. Bush. Yikes! If that sort of percentage holds up Bush could move another thousand votes ahead of Gore.

Consider this, though. Fox News reported on Wednesday that the US Postal Service was expediting delivery of military absentee ballots. But only military ballots. That doesn't seem fair. What if you're a Floridian hanging out in Tel Aviv? What about your vote?

The question, though, is this: Did the Bush folks lean on the USPS and get them to move those ballots along? And if so, why are the postal folks such push-overs?

Why does Talking Points think the Bush folks may have gotten in touch with the people at the US Postal Service? He has learned, on good authority, that the Bush campaign sent a letter to the Defense Department asking them to help insure that all military absentee ballots got to Florida in a timely fashion. Don't get me wrong: nothing untoward was implied or requested. But the folks at the DOD rightly responded that there are already procedures in place for this sort of thing.

Maybe the postal service didn't respond in quite the same way.

Talking Points thought he'd said enough about Al Gore's new state-wide recount gambit; but he was wrong. Anytime your spin makes your opponent respond with counter-spin that is self-defeating and transparently moronic you know you're dishing out some really good spin.

Think Gore's offer last night was generous? Generous, Shmenerous! Listen to the Washington Post's David Broder summarize the Republican line: "Bush aides said ... that the offer of a statewide hand count was less generous than it seemed. Looking at precinct returns even in counties carried by Bush, they said, more spoiled or uncounted ballots may have been cast by Democrats than by Republicans."

Good point! In other words, this is a devious ploy by the vice-president to demonstrate that he really won the election.

There's no denying this was a tactical coup for Gore. Let's get him into the White House and have him loose some of that mojo on Saddam Hussein!

Of course, the fight's far from over. Florida Secretary of State Katherine Harris may exercise her authority to burn all remaining uncounted ballots, which from what I see of Florida election law she is probably entitled to do. But for right now the veep is looking pretty good.

Gore wins! Well, at least sort of. Whether or not Al Gore becomes the next president, last night he went a long way to winning -- perhaps already won -- the publicity war, the war for public opinion.

Gore's offer to agree to a statewide hand recount of the votes, and abide by the results with no recourse to the courts, is an eminently reasonable offer -- one which George W. Bush will have a really hard time refusing.

Of course, Bush DID reject the offer, just a couple hours after the vice-president made it. But, finally (for once?), the editorial responses were swift and unequivocal against the governor. Both the Washington Post and the New York Times teed off on the governor, granting that Gore's offer played to his advantage, but also agreeing that it was the only fair and logical way out of this mess. (Talking Points doesn't mean to indulge in a hideous, East Coast, elite media bias - but he suspects editorials from around the country will come to a similar conclusion, as will most members of the American public with whom he is in a constant and almost mystical communion. (Late Update: USAToday was a little less kind. They called Gore's gambit "artful political alchemy, not altruism."))

The Times wrote "Mr. Bush's swift rejection of the proposal was a disappointment on civic grounds, a political mistake and unsound as to his reasoning that a manual recount would be 'arbitrary and chaotic' … Mr. Gore's proposal was right on the substance and also tactically smart." The Post made a similar argument and concluded by writing "Mr. Gore's offer was doubtless in some ways to his own advantage. But it was to Gov. Bush's disadvantage only if he was clinging to an artificial lead that would not stand up to legitimate review."

Both papers also took a stern swipe at the increasingly unforgivable stance of Florida Secretary of State Katherine Harris. Harris makes a commentator's task a difficult one. Normally, a bad actor proceeds with sufficient deftness to make their bad conduct require explanation. But Harris' attitude and actions have been so brazen, so partisan, and so clearly ill-considered as to make any discussion or attack upon them thoroughly redundant. In our modern political culture, so sensitive to conflicts of interest, people commonly recuse themselves from decisions they would likely have little difficulty making fairly. Harris, though, persists not only in making decisions she is clearly not in an appropriate position to make, but makes them in the most transparently partisan way.

When Talking Points thought it over, the most offensive thing he found in Harris' behavior was not so much her transparently partisan conduct as her brazen willingness to act in such a way in the full light of media attention. She isn't even trying to hide it. And thus her real message seems to be: I've got the power to do this, and I just don't care what anyone thinks.

Somehow or another the Republicans appear to be on the verge of shutting down the whole process of manual recounts in Florida. The only thing that may stand in their way now is public opinion and elite opinion - obviously two different things. So how do the prestige national dailies react on their editorial pages? Well, it's pretty disappointing. The Washington Post has a typically supercilious, plague-on-both-your-houses complaint about how both campaigns have their spokesman saying some awfully un-nice things. (Did Chris Lehane really call Katherine Harris "Commissar Harris"? Chris, I'm on your side, man, trust me. But that kind of talk really doesn't help matters.)

Anyway, back to my story. The Wash Post editorial is a pretty big disappointment. Characteristically they seem quite oblivious to the thought that there might be an issue of small-d democratic principle at stake here. Since when does David Broder get to write the unsigned editorials for the Post anyway?

The NYT editorial is a little more encouraging, praising the state court decision which agreed that Katherine Harris has discretion over what to do about accepting those overdue election returns, but encourages her not to exercise that discretion in the irresponsible and arbitrary way she seems to intend.

Apparently Bob Torricelli is still playing the nay-sayer, bucketing water into the Democratic boat rather than the other way around. Anyway, that's what Kausfiles seems to imply that Torricelli did last night on Hardball. Talking Points would comment on this matter directly. But he's currently visiting his girlfriend in New Haven and she doesn't have cable TV so he has no direct evidence. He has to rely on Kaus.

The one half-way decent editorial on this is in USAToday. They basically make the standard anti-litigation argument. But they're at least sensitive to the fact that the Republican strategy is to avoid accurate tabulation and avoid having everyone's vote count. The real answer to this quagmire, they argue, is to have the whole state do a manual recount. (Note: here's where my editorializing begins) That really is the one solution that no one should be able to argue with. It really will get the most accurate count. There would be no question of selective counting. And perhaps best of all the proposition would create sufficient uncertainty for both camps - a decent shot at winning or losing - that pressure might be applied to get both to agree in advance to honor the result without further grousing. (Secret word to fellow Democratic partisans: apparently the big Democratic counties are the ones that tend to have the machines most likely to miss votes. So even the fair way of settling this seems to lean in our favor - of course, that's only because most people in Florida did apparently vote for Al Gore.)

Tomorrow's big question is whether state judge Terry Lewis will prevent Florida Secretary of State Katherine Harris from making 5 PM Tuesday the drop-dead deadline for all ballot recounts - a decision that would effectively prevent hand recounts in several key Democratic counties, and probably make George W. Bush our next president.

But has anyone else noticed how feeble an argument Harris' attorney made in court on Monday afternoon?

A number of good articles ran Monday explaining that Harris is much more than a passive supporter of Governor Bush (see these effective flayings of Harris in Salon and ABCNews.com); but Harris and her supporters argue that, whatever her personal feelings in the matter, Florida statute mandates that she enforce the deadline, period.

Reports from Reuters and the New York Times imply that the judge was leaning against Harris' arguments. And it's not hard to see why. Even Harris' attorney didn't seem to buy her argument.

Here's how Reuters described one exchange:

Debby Kearney, general counsel for the secretary of state's office, acknowledged that state law gave Harris discretion to extend the deadline but said she refused to do so because the counties had given no adequate reason why they could not comply.
"We don't think anything has happened to require us to use that discretion," Kearney said.

Is she kidding? The counties have "given no adequate reason why they could not comply." Please! Can't they do better than this transparently false assertion?

If that's the best they can do I'm dusting off my résumé and sending it off to Warren Christopher. I hear he's slated to head up Gore's transition.

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