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The 2000 Election Recount
With Jeffrey Toobin
Writer and ABC News Legal Analyst
Tuesday, Oct. 30, 2001; 3 p.m. EST

What really happened behind the scenes of one of the strangest elections in American history?

Toobin was online to discuss the events surrounding the post-election battle, his newest book and his career in general.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Chicago, Ill.: If the Supreme Court acted in a partisan manner to stop the counting of votes, is there any action, such as impeachment, that could be used against them?

Jeffrey Toobin: The only remedy is impeachment, and there appears to be no public support for that idea. As Justice Robert Jackson said, we are not final because we are infaliable, we are infalible because we are final.

Honolulu, Hawaii: Mr. Toobin:

It seems to me that Al Gore's margin of victory in the popular vote, was less than the margin of error in vote counts when you consider over a 100 million votes were cast.

Isn't it more fair to say that to the best of our knowledge, and when no attempt is made to disqualify illegal votes on both sides, Al Gore appeared to be the winner of the popular vote and the loser of the electoral vote?

I think the best analogy is that this race came out a tie, and The Supreme Court did it's job and efficiently picked a winner.

That being said, what exactly is your and E.J. Dionne's continued beef about the matter? It seems like a giant dead horse issue to me. What gives?

Jeffrey Toobin: By your standard, all of history is beating a dead horse. I have no desire to overturn the election, even if that was possible. I just think history matters, and in this case in particular, it's important that election processes be reformed because we are going to be having them for some time.

Washington, D.C.: What role do you think the network predictions had in shaping the post-election responses by the Bush and Gore camps? It seems if the networks had made no projection on Florida, both Bush and Gore would have been more likely to call for statewide recounts immediately. This would have affected the way the challenges played out, and possibly, the outcome of the election

I enjoyed your piece on Chertoff yesterday, keep up the good work!

Jeffrey Toobin: Very interestsing question. My own view is that if Gore had not conceded based on those projections, he would have been in far better shape. He then would have been in the position of slamming the exit polls, and thus the media, and that is always a very popular position to take. But since he conceded, and thus accepted the exit polls, he was in a weaker position.

Washington, D.C.: I would like your impressions of one of my theories:

I believe that Gore Chairman Bill Daley made a rhetorical error (which certainly can be blamed on a lack of sleep, the need for a quick response, etc.) when he said at about 4:00 AM Wednesday that, until the situation in FLA could be resolved, "our campaign continues."

By that point, the campaign was over. The counting was not -- but the "campaign" (as defined as an attempt to persuade voters and inspire supporters) was well over.

I think that this choice of words added to the perception that Gore might be trying to change people's minds (and, thus the outcome) rather than simply to seek the fullest and most accurate count of votes that had been cast (or, which people had attempted to cast).

In addition, people were happy that it was over! Only political junkies, campaign operatives (of which I am one -- and a Democrat at that) could have stomached more campaigning. I think Daley -- if he wanted to use that word -- could have been more rueful about it (i.e., "sorry, America, but we have no choice").

Your thoughts?

Jeffrey Toobin: I don't really agree. The campaign did continue -- on both sides. Daley may have used those words, but the Republicans did a heck of a lot more campaigning -- with rallies, surrogates, etc. This was a political brawl, and the Republicans understood that idea right from the start of the recount period.

Albuquerque, N.M.: The New York Times and Waskington Post both reported illegal voting from members of the armed forces; hundreds of illegal ballots were counted and the numbers of ballots that arrived late were much greater than what was expected. Yet neither paper followed up with the obvious question: was illegal voting encouraged by commanders and/or investigated by the Pentagon? In filing Freedom of Information Act requests, we found the Pentagon extraordinarily evasive. Florida AG Butterfield was also slippery. Now it seems that FOIA has been effectively shut down by presidential order. It is scary to think the military may have started to intervene in civilian affairs. Have you heard anything beyond what has been reported by Salon's Tapper, the New York Times and Waskington Post?

Jeffrey Toobin: I know that I and others did a great deal of investigating whether either campaign encouraged late or illegal voting by soldiers or others. No one found any such organized effort, and I for one don't believe that it happened.

Lake Mary, Fla.: Do you believe that the NORC data will ever be released? If it is not released, is it fair to conclude that it probably reveals that Gore actually won? It would seem that any other conclusion would cause the results to be released to bolster Bush's legitimacy.

Jeffrey Toobin: I absolutely do believe that the NORC results -- that is, the results of the review of the under and overvotes by the media consortium of NY Times, Wash Post and others -- will be released. I think the war has simply sapped all the attention and time of reporters, and no one can focus on NORC now. If you don't like Bush, you're probably better off if the results are released later, because at that time people will have a chance to focus on the issue, as they are not doing now.

Charlottesville, Va.: Justice Scalia relied upon the equal protection clause of the Fourteenth Amendment, finding that under the circumstances it compelled his decision to give the election to Bush. Can you think of another case during his tenure on the Court in which he found a violation of the equal protection clause, or was that a first for him?

Jeffrey Toobin: Very good question. The equal protection clause has only been invoked by this court to invalidate intentional discrimination against a protected class of people, i.e. blacks. Even most supporters of the result of the decision in Bush v. Gore thought that the court shouldhave grounded its opinion in another part of the constutition.

wiredog: Soooo, Vast Conspiracy comes out right before the election debacle, and your book on the election debacle comes out just as a war starts. Good timing. Does your agent hate you yet?

Jeffrey Toobin: Vast Conspiracy came out long before the election debacle and was a big best-seller. As for the timing of this book, yes, my agent hates me.

Washington, D.C.: I am a die-hard Democrat and was sick about the election, but I am quietly pleased to have a Republican in office now, to take the sort of severe action a Democrat might not. Have you heard a similar reaction from others?

Jeffrey Toobin: Only from self-loathing Democrats. I do think that Democrats offer more support to Republicans in times of crises than Dems ever receive in comparable times from Republicans. If you are a Dem, you should want a Dem president Power matters; criticism, usually, doesn't.

Arlington, Va.: Hmmm. Please enlighten me. My understanding is that you set the ground-rules for an election and then you follow them. If there are flaws in the rules you change them for the next go around. The "dimpled chads" and "butterfly ballot" fiascoes that popped up after Gore lost the initial count seemed like a shallow attempt to change the rules mid-game. Am I wrong?

Jeffrey Toobin: I do think you're wrong. Florida law said vote-counters should honor the "intent of the voters" in determining whether to include votes. In most states, dimpled etc. chads are counted as votes. Florida had no specific law on the subject. The point is there were no clear rules of the game; both sides were fighting to estalblish the ones that would help their side.

Washington, D.C.: Why should I read your book? Seriously, among all the books that have been published on this subject, if one were to separate the wheat from the chaffe, what sets your account apart and who else's analysis do you most respect?

Jeffrey Toobin: I think I have a track record of bringing to over-covered subjects -- OJ, impeachment -- a fresh perspective and lots of new information and insights. I believe that's waht I do in Too Close to Call. In terms of other books, I think Deadlock, the book produced by the staff of the Washington Post, was very good.

New York, N.Y.: Do you have any new info on the "bourgeois riot" that shut down the counting in Miami? Were those rioters flown it at the expense of the RNC or the Bush campaign? Also, will the Bushies ever be forced to reveal how they spent their money after November 7? Do you have any information about why they don't want that information released?

Jeffrey Toobin: Lots of new info. The RNC did pay for most people to fly down, but the most interesting part for me was that the Bush campaign reassembled the Elian coalition -- the Miami Cuban community -- to mobilize against the recount, and that was a critical factor. I don't know much about the money spent post Election Day. I think those figures will be released. I don't think you;d find anything sensational in those numbers.

New York, N.Y.: Mr. Toobin,

In your opinion, would James Baker have villified hand recounts if the shoe had been on the other foot and Gore were winning by a sliver of a percentage?

Jeffrey Toobin: No, I don't. James Baker is a winner, and he was going to do what it took to win. Like most people, he had no prior position on the morality of hand counts. He had a case to make and he made it.

Depauw, Ind.: Given that the Democratic party controlled the political apparatus in many of the counties in Florida where the vote was close, and determined what form the ballots were to take, is it fair to blame the Republicans for "stealing" the Florida election?

Jeffrey Toobin: I never said the GOP "stole" the election. But the Republicans controlled the governorship, the state bureaucracy (secy of state's office) and the legislature. Dems had some of the counties and the Supreme Court of Florida. I'd rather have been in the Republicans' shoes.

Washington, D.C.: I am looking forward to reading your book. In your view, if Gore would have focused on state-wide recounts from the beginning could the outcome have changed? I always thought he made a mistake when his team fought for only recounts in selected counties, which made it appear he was hunting for democratic votes in democratic counties.

Jeffrey Toobin: I agree with you. Gore's people picked the four counties because they thought that limiting themselves to four counties would make them look reasonable. Instead, it made them look like they were cherry-picking the big Demo counties. It was a huge political, and vote-coutning, mistake by the Dems.

Washington, D.C.: I have not read your book yet. I plan to do so. Please forgive me if you address this question in the book...

How was it possible for the Republicans to make such a big deal out of the fact that the networks called Florida for Gore about ten minutes before the polls closed in the small section of the panhandle that operates on Central time?

Was it too bad that this happened? Of course.

But, on a practical level, how many voters (or, would-be voters) could this have possibly affected? How many people said, "gee, I guess it's not worth it to go vote."? For someone not have cast his or her vote becuase NBC called it for Gore at 7:50 PM, this means you were planning to leave your house...get in the car...get to the polling place...and vote all within ten minutes? And, wasn't there a U.S. Senate race still to be decided? Shouldn't that have provided enough incentive for these civic minded Floridians to go vote?

The reason this bothered me so much is because the GOP was able to raise this to such a level that it almost equaled (in some people's minds) the severe and systemic problems in other parts (heavily Democratic parts) of the state. Or, at the very least, reporters felt compelled to mention it in such a way that it seemed like the Republicans got "cheated," too.

Jeffrey Toobin: This was a truly silly issue. The Republicans have never produced even a single voter --not one! - who said he or she was discouraged from voting by this ten-minute error. As far as I could tell, the ten mintues meant nothing at all.

New York, N.Y.: Did any of your Republican contacts have anything to say about the fact that their candidate lost the popular vote? I recall that they were expecting just the opposite, to win the popular vote and to attack the legitimacy of the electoral college if Gore won the electoral vote.

Jeffrey Toobin: You're right that everyone was expecting a Bush win in the popular vote and a possible Gore win in the electoral college. But everyone quickly reocgnize that the electoral votes were all that mattered, and everyone worked accordingly.

Washington, D.C.: Have you read Richard Posner's book on the 2000 Presidential election. He makes a plausible argument that the Supreme Court ended up selecting the "least bad" option available to it (but perhaps for the wrong reason -- Posner is not a fan of the equal protection rationale the court adopted). What did you think of Posner's book? Also, what is the status of the review of the Fla. ballots by the media consortium that includes the Washington Post, the Wall Street Journal, and the like? They were suppposed to announce their results in the spring, then the summer. Thanks!

Jeffrey Toobin: Media consortium results will be released in a few months. I am sure that they will not be buried forever. I think Posner is brilliant and I enjoyed his book. I think he's right that the court would have been better off citing Article II for overtrning the Florida Supreme Court more than it was in relying on equal protection. But I don't ultimately buy either view. I think the court was simply wrong on the merits.

Washington, D.C.: Was Senator Lieberman's defense of military voters damaging to Gore's side?

Jeffrey Toobin: Very damaging. Lieberman sold out his people on the ground without really understanding the issue. After what Lieberman said on Meet the Press, Gore's people lost the ability to fight to exclude even clearly improper ballots -- and that hurt the Dems a lot.

Alexandria, Va.: I was one of 20,000 people on the street's of Washington protesting W's inauguration last January, but now I don't care about this issue at all.

A dimpled ballot invariably got that way because someone pushed it with a stylus, and worn rubber backing and other other punchcard machine deficiencies registered valid votes as chad and dimples.

But why should I care about this issue now? It is too late. W did not win the election legitimately, but he almost won and he is the president.

Jeffrey Toobin: History always matters. We study WW II not because we can change the outcome but because it's important to understand the past. Same here. This is a worthy subject of inquiry even though Bush is and should remain president. I agree with you about the dimples. They are there because someone tried to vote.

Tampa, Fla.: You just said "both sides" were working to establish rules that would help their side. Isn't it true that Gore was working to establish the actual "intent of the voter" rule that was Florida law, and that it just happened to "help" his side?

Jeffrey Toobin: I guess I'm a little more cynical than you are. I think Gore was more right than wrong on the standard, but I think he wanted that standard because it would help him win.

Bethesda, Md.: Do you see any covert bigotry in the way the GOP addressed the concerns of the elderly Jewish population in Palm Beach (making them the butt of jokes) or the African-American voters being intimidated at the polls? Is there a link (image-wise) to subsequent organized "mob" behavior when paid operatives stormed the vote-counting operations in some Democratic counties? Your comments, please.

Jeffrey Toobin: You often heard from Republicans that the old Jews of Palm Beach -- or the blacks of Jacksonville -- were too stupid to follow directions. But the GOP never had similar complaints about the military people who couldn't fill out their ballots properly. This was all about politics.

Seattle, Wash.: Where are you going after this to plug your book? Will you take a national tour and swing by the NW?

Jeffrey Toobin: National tour to promote TOo Close to Call. I will be in Seattle on Nov 29.

Albany, N.Y.: Now that many democrats have been quoted, both on the record and off, to the effect that Pres. Bush is doing as good or probably far better a job on the terrorist attack response as Gore was capable of, has some of the fire gone out of the Left's "anger" over the election?

Jeffrey Toobin: There was one NY Times story supposedly to this effect, but I think it's a completely bogus story. Gore may or may not have done a better job, but I don't know anyone who thinks he was not up to the job. There is no way of knowing whether he would have done better or worse.

Salem, Ore.: Do you think Sept. 11 stalled the move for election reform? Seems to me (a former volunteer recount observer when a friend lost a statewide primary by 330 votes) that at the very least there need to be hard and fast rules about recounts in all jurisdictions! As I recall, our Sen. Gordon Smith had an election reform bill which protected Oregon's vote by mail. There should also be provisional ballots and no one should fear (as apparently some Floridians did) that either law enforcement or hostile election workers prevent them from casting a ballot and getting a new one if they make a mistake.
And do you think the networks have sufficiently repented?

Jeffrey Toobin: I do think the networks have repented. They were truly (and rightly) embarrassed, and they will not make the same mistake again, I believe. As for electoral reform, it ws pretty well stalled even before 9/11. Florida did a good job changing its laws, but at the federal level and in other states, there was never any pressure to force politicians to act.

Vancouver, Wash.: Will the release of the NORC data really make any difference? Didn't the Republicans know as well as the Democrats that Gore really won Florida or else why would they have been so adamnant about stopping the counting.

Jeffrey Toobin: I'm not as sure as you are. The election is over, and NORC (or Too Close to Call) will not change the results. But I do think history requires a re-examination of the ballots and that will still happen -- but not for a few more months.

New York, N.Y.: How involved were Jeb and GHW in the Bush campaign after Nov. 7?

Jeffrey Toobin: I deal with this subject a lot in Too Close to Call. Jeb did not do a great deal himself, but he put his staff at his brother's disposal, and that made a big difference. GWB stayed above the fray and let James Baker run his own show.

Washignton, D.C.: There are so many books out now on this topic. Why should I read yours? What distinguishes your book from the crowd? And, if you don't mind saying, what other book on the recount process do you feel would make the best companion reading to your analysis?

Jeffrey Toobin: I think you can examine my track record of bringing something new and entertaining to well-covered subejcts -- like OJ and impeachment. As for other books, I think Deadlock, by the staff of the Washington Post, is very good.

Greenbelt, Md.: Hi--

In the aftermath of the 1876 Presidential election fiasco, there were numerous changes proposed and a few changes enacted to remedy the problems the country had just experienced.

One year after the Presidential election fiasco of 2000, it doesn't look like any changes in the election process will occur.

What do you think?

Thanks

Jeffrey Toobin: It's really pretty pathetic how quickly the urge to reform died out, especially after 9/11. Republicans generally don't want to make it too easy to vote, and that will always be an obstruction to true reform. In fairness, Florida did do a good and serious job in reforming its laws.

New York, N.Y.: Speaking to Albany's question: I'm on the left. I was angry before 9/11. I'm angry after 9/11. The war does not take anything away from the fact that the last election was a disgrace, and we should be working now, or soon, to ensure that nothing like it happens again.

Jeffrey Toobin: For better or worse, your anger is not widely shared enough to pass legislation, I think.

Plano, Tex.: Again I am amazed, you say you wouldn't want to overturn the decision to appoint Bush to the White House even if was shown that Gore really won by thousands of votes under Fla. Law? What if there was fraud involved, other than the intentional neglect that is the best excuse for the Voter Cleansing Efforts that removed thousands of Democrats? If Bush didn't win Florida, he and the entire Federal Government is an occupying force and not a legal government.

Jeffrey Toobin: I'm sorry you're amazed, but that's what I think. The election is over, for better or worse. ANd while I think there were some unfair tactics by the GOP, I don't think there was anything as sinster as what your suggest in your message.

Washington, D.C.: You just said "most people" had no opinion on the morality of hand counts. As this has been the unquestioned election practice throughout our history, and is the recommeded procedure by all vote-counting machine manufacturers, don't you think you may have been duped, with the rest of the media, by propapaganda?

Jeffrey Toobin: I said (or meant) that most people had no view on whether dimples counted as votes. It was widely acknoweldged that hand votes were more accurate than machine counts regarding punch card ballots.

Plano, Tex.: Do you explore the idea that the exit polls were correct in Florida? The exit polls haven't been wrong before, so why would they be wrong in Florida? Who did the final exit polls show won the election?

Jeffrey Toobin: I do think the exit polls were more right than wrong. In my view, Gore won the state by a small margin, which is waht the polls showed. But I do think the margin was so close that it would have been more responsible for the networks to make no call of the state, rather than making calls and taking them back.

Austin, Tex.: You state "I do think that Democrats offer more support to Republicans in times of crises than Dems ever receive in comparable times from Republicans."

Oops, I guess we know how you voted, sir.

I'm sure you'll not be surprised to hear that there are some of us out here who view reality as precisely the opposite... if you start counting from the beginning of the cultural war in the late '60's.

Jeffrey Toobin: I am never surprised when people disagree with me. But can you imagine Trent Lott embracing Bill Clinton on the floor of the Congres? (As Daschle embraced Bush).

Vancouver, Wash.: What about the "overvotes" where the voter wrote in the name of the same candidate that they marked in the optiscan ballots. FL law clearly states that they are legal votes that show "the clear intent of the voter". These votes were illegally discarded. Will there be any ramifications for the officials that rejected these ballots?

Jeffrey Toobin: I don't think anyone knows how many overvotes were discarded in this way. In the counties where there were recounts, if the intent of the voter was clear, the votes would be counted. It would have been far better to have a full statewide recount -- and then clear examples like yours would certainly have been counted in the final tally.

Bethesda, Md.: If as you say it's widely acknowledged that hand recounts are more accurate, why did the media allow Baker to get away with publicly trashing them as he did? I know hand recounts are routine and was amazed when no one made this point.

Jeffrey Toobin: Many people did make this point, but I think Baker was helped by the appearance of the hand counts in the four south Florida counties. It looked like a disorganized process, and so there was not the great degree of confidence in the accuracy of hand counts.

Tampa, Fla.: Follow up, if I may (isn't that the protocol?)

You just said Gore was "more right than wrong" on the Florida "intent of the voter" standard. How was he wrong at all?

Jeffrey Toobin: I think he was right about the standard in the abstract, but it was not always clear whether "intent of the voter" required the inclusion of dimpled or pregnant chads.

Chevy Chase, Md.: It seems to me the GOP was more effective than the Gore camp at framing their version of events, more organized from Day One. Any insight into how the GOP message was formed versus the Democratic approach would be appreciated.

Jeffrey Toobin: This is a major theme of Too Close to Call. Republicans were more disciplined and generally smarter, less beholden to their sense of elite opinion. They wanted to win more. For details, you'll have to see the book.

Mt. Lebanon, Pa.: The campaign to elect George II President of the USA, from election day until the moment that Gore threw in the towel, is likely to be written and fussed over for a long time to come. Your own contribution to this kubuki drama it appears to me will result in one of two outcomes. Either it will be fodder for Congressional committees and state election commissions to chew on with subsequent voting reform to follow or it will merely survive as an interesting but unimportant historical footnote. What is your take as to where your research and reporting will ultimately end up? Law or dustbin? Thanks much.

Jeffrey Toobin: I don't believe those are the only two choices. I do think electoral reform will continue to be an important, if low profile, cause. But just because you don't overturn the election -- or otherwise change history -- that doesn't mean your work is worthless. 11/7/00 will always be an iportant moment in American history.

Thank you for your great questions, and I hope you'll check out Too Close to Call. Otherwise, I'll see you in the pages of the New Yorker or on ABC.

washingtonpost.com:

That wraps up today's show. Thanks to everyone who joined the discussion.

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