TALLAHASSEE, Fla. — When the state's top election officials accepted vote totals last week from 16 counties that did not actually count their presidential ballots again, they were violating a 1999 state ruling that said every ballot "must be reprocessed" during a state-mandated recount.
The official opinion--issued from Florida Secretary of State Katherine Harris' office--said that counties could not simply rerun their computer tabulations and consider their work done.
"Such a step would only serve to prove that the counts in the voting system have not been altered since the next previous result tape was printed," wrote Ethel Baxter, who was director of the division of elections in 1999. "It is our opinion that 'recount' means to count again."
But the Los Angeles Times found that 16 of Florida's 67 counties simply reran their computer tapes or inspected the electronic memories of their tabulating equipment when they gave their recount totals to Harris' office.
Some of those counties did not physically examine a single ballot cast in the presidential election. Others reprocessed only their absentee ballots or a sample from certain precincts.
Yet no one challenged their recount totals. Republican George W. Bush carried 11 of the counties; Democrat Al Gore carried five. Many of the counties are in the predominantly Republican areas of the state, in North Florida and the Panhandle. But Monroe County, which includes the Florida Keys, also is included.
Harris and other election officials did not return phone calls seeking comment about the discrepancy between last year's ruling and their decision to accept the tabulations this year.
The Times obtained Baxter's four-page opinion through a public records request.
The April 1999 ruling came in response to a question from Manatee County Supervisor of Elections Robert Sweat. He said in an interview that he sought the information because he was using a new optical scanning vote system and wasn't sure what method of recounting would best satisfy Florida's vague election laws.
"I felt very strongly, for the protection of voters in Manatee County, that we needed some clarity for the future," Sweat said from his office near Tampa. "I think sometimes you have to ask questions to be clear in your mind about what you're doing. I represent 170,000 voters here."
Sweat said he did not think that the state notified the rest of Florida's 67 counties about the ruling when it answered his query. Election records show that 38 counties use an optical scanning system similar to what Sweat uses.
"I don't think the division sent it to anyone but me," Sweat said. "Is it direct guidance if nobody got a copy of it?"
But Wayne Malaney, the former staff director and general counsel for the Florida House of Representatives' committee on ethics and elections, said such opinions have been used as precedents. "The opinion speaks to what the division's belief is," he said. "It's a fair statement to say that, while opinions are rendered and binding only upon the person or entity making the request, they can be referred to as guidance in like situations."
Fred Galey, the election supervisor in Brevard County--home of the Kennedy Space Center--said that he never saw it. Brevard simply checked its memory cards to satisfy the recount. "I didn't have that letter," he said. "I sent my results in. I said I revisited my memory cards." He said no one from the state questioned him.
In issuing the ruling, Baxter noted that Florida law gave the secretary of state the responsibility "to provide technical assistance to the supervisors of elections on voting systems." It was in that capacity, she wrote, that she answered Sweat's request "for an official opinion or rule" on the "specific procedures he should use when conducting a recount on an optical scan voting system."
"Reprinting result tapes from the tabulation units does not suffice for a recount," she ruled. "Conducting a random sample of 10% of the precincts" would not suffice, either. Baxter, who since has retired, could not be reached for comment.
Had her opinion been sent statewide, it would have made a difference in how the initial machine recount was conducted.
Galey said he certainly would have reprocessed ballots if he'd seen the ruling.
The opinion would not apply to the ongoing hand recounts in Palm Beach, Broward and Miami-Dade counties, because those counties used punch-card ballots.
Voters who use the optical scanning ballots darken circles next to a candidate's name with a pen or pencil, similar to marking a lottery card.
Many election officials said that method is much more reliable because it can spit out a ballot in which a voter has picked more than one candidate immediately after the ballot is cast, giving them a chance to correct mistakes on election day.
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The popular vote reported by the Florida secretary of state, including absentee ballots:
BUSH LEAD: 930