Did Bush camp encourage military personnel to vote after Election Day?

The story of the battle over the overseas absentee ballots features plenty of down-and-dirty political maneuvering on both sides. But as was the case with the entire Florida election battle, the Democrats never played hardball as well as the Republicans. On the biggest issue of all, for example -- whether and how to seek a manual recount, whether to include overvotes or just undervotes, and in which counties -- Gore made horrendous strategic and public relations decisions. He pretended his goal was counting every vote, yet his attorneys only sought recounts of undervotes in dense Democratic counties. They lost the P.R. battle because the Bush camp could rightly claim they were being hypocritical, and they lost the political battle as well, since subsequent analyses suggest that a statewide manual recount could possibly have given the edge to the former vice president.

On the overseas absentee ballot issue, it was the Democrats who were first accused of pondering an illegal post-election drive. After an obscure news item referred to a Democratic lawyer allegedly hatching such a scheme, former Florida Secretary of State Jim Smith, a Republican, was instructed to go before the cameras on Sunday, Nov. 12, and lay down the strict law of the land as it pertained to overseas absentee ballots.

"The Florida law is simple, straightforward and reason-based," Smith said. He laid out the rules: Overseas ballots must be either postmarked by Nov. 7; or signed and dated no later than Nov. 7. Those mailed from overseas also required an Army Post Office, Fleet Post Office or foreign post mark.

"It is a felony to perpetrate, attempt or aid in any fraud of any vote cast or attempted, such as backdating an absentee ballot," he said. He used the word "fraud" once, the word "felony" four times.

A reporter asked Smith: Why are you here?

"At the request of the Republican Party of Florida," he replied, citing concerns over "news reports that there has been some encouragement of some individuals overseas who may not have not cast their ballot" but were erroneously told that "even though the Nov. 7th date has passed they could still do that."

Meanwhile, over at the Democrats' post-election headquarters, attorney Mark Herron was working on the same project. Herron had no knowledge of Smith's press conference, though his understanding of the law was the same.

Herron and his law firm -- Akerman Senterfitt & Eidson -- had just parted ways. The other partners didn't want him to work for Gore, and told him that if he continued to do so he would have to leave. So he did.

Over the weekend, the Gore campaign asked Herron to look into the overseas absentee ballot issue. Back in 1980, it was clear that Florida had an inherent defect in its election system, arising from the fact that its primary elections were so late -- a September primary, then a runoff in October. How could they get the overseas ballots out when they didn't even know who was going to be on the ballot until October? The choice was either move the primaries back, or give overseas voters more time. So in 1984, the state of Florida and the federal government entered into a consent decree, which allowed these ballots to come in up to 10 days late -- as long as they were postmarked by Election Day or, if they didn't have a postmark (some letters from overseas military bases aren't postmarked), were signed and dated by Election Day.

In 1989, despite the consent decree, the Florida Legislature ruled that only ballots with postmarks could be considered valid, and Republican Smith and Democrat Herron clearly read the conflict the same way -- the 1989 law ruled supreme. Both were operating out of political interest, of course -- Smith trying to guard against invalid Gore votes, presumably from Jews in Israel, Herron against invalid Bush votes, presumably from soldiers.

It was a rare moment when the campaigns could agree. But not for long.

On Friday, Nov. 17, Bush attorney Jason Unger was only one of many attorneys hired by the state GOP to focus on the issue of military overseas absentee ballots. Working with other attorneys at his firm, Gray Harris & Robinson, Unger had prepared all week for deadline day.

Ed Fleming, a Republican attorney in Pensacola who represents Rep. Joe Scarborough, R-Fla., had been drafted by Unger to work on the project. In one of their conversations, Unger told Fleming of a rumor he'd heard that the Dems were going to go full-bore in challenging overseas military absentee ballots. On Thursday, Fleming asked a local county attorney if he'd heard anything about the rumor. Sure, the attorney told him. Got a memo right here about it, written by the Democrats. He faxed Fleming the memo. It was written by Mark Herron, outlining the Gore strategy.

Fleming passed news of the memo to Stuart Bowen, a Bush attorney from Austin who was supervising the absentee ballot effort in the Panhandle. On Friday morning, after making sure that Fleming obtained the memo legally, Bowen told him to fax the memo to Tallahassee ASAP.

At 11:42 a.m., the memo arrived in Unger's office. He showed it to Washington attorney David Aufhauser (nominated Wednesday to be general counsel for the Department of the Treasury). Within minutes, Bush campaign counsel Ben Ginsberg had it. Within seconds after that, Bush Florida recount general Jim Baker.

"This is gold," said spokeswoman Mindy Tucker, when it got around to her.

Next Page: A public relations bonanza

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