The Nine

by Jeffrey Toobin

  Events in the first few days after the election had a hallucinogenic quality. Partisans on both sides had no experience with a controversy like this one. While there were a great many people who were familiar with politics, almost none of them knew anything about how votes were actually cast and counted. And the subject of recounts was even more obscure, familiar only to a tiny band of part-time experts on both sides. (There have never been enough recounts to support even one person’s entire career.) No one, of course, had any idea how long the controversy would last, so each side worked with a frantic, sleepless intensity.

  The immediate focus of controversy was Palm Beach County, Florida’s biggest by area and most Democratic by inclination. Because the local election administrator, Theresa LePore, wanted to make voting easier for the county’s many elderly voters, she used 12-point type—rather than the customary 10-point—to lay out the ballot. But with ten candidates, the bigger type meant that there was not enough room to list them all on one page; instead, she spread the names across two pages, with the holes to be punched in the middle, the famous “butterfly ballot.” The arrangement left Patrick Buchanan, the rabidly conservative independent candidate, in the second punch-hole position and Gore in the third place. (In Florida, like most other states, the parties are usually listed in order of finish in the most recent governor’s race.) As a result, Buchanan received 3,704 votes in Palm Beach—nearly 2,700 more than he’d won in any other county. As Buchanan himself acknowledged, most of the votes were intended not for him but rather for Gore. What, if anything, could be done about these errors after Election Day? It wasn’t clear. Still, protesters and news cameras descended on the government center in West Palm Beach.

  Scrambling to keep their hopes alive, the members of the Gore team made their first move on November 9, two days after the election. Pursuant to Florida law, they asked four out of the state’s sixty-seven counties to conduct manual recounts—ballot-by-ballot reviews to make sure that the votes were correctly recorded. Not coincidentally, Gore asked for recounts in Broward, Miami-Dade, Palm Beach, and Volusia, the four most Democratic-leaning counties in the state. The butterfly ballot controversy applied only in Palm Beach, but the main issue in the other counties concerned the number of so-called undervotes—that is, ballots where the counting machines registered no preference in the presidential race. The Gore team thought a recount was necessary to identify whether any of these undervote ballots had actually been marked with a preference for president. In each county, a little-known entity called the Canvassing Board, made up of three local officials, would vote to determine whether a recount should take place. Gore had not filed a lawsuit, instead asking for manual recounts, which was known under Florida law as filing a protest.

  But before any of the boards could even determine whether to conduct a manual recount, the Bush forces struck back in a way that hinted at how the contest would proceed over the following month. They were going to do whatever it took to win this election. Throughout the post–Election Day controversy, the passion to win, fueled in part by the desire to get control of a Supreme Court that had disappointed conservatives for so long, was all on the Republican side. James A. Baker III, the wily former cabinet member who was running the Bush effort, thought that a lawsuit was a terrific idea, and he asked former Missouri senator John Danforth, a part-time clergyman and nationally known figure of rectitude, to represent Bush in the case. Danforth declined, citing the old rule “Candidates don’t sue.” Undeterred, Baker chose a more zealous advocate, the Washington lawyer Theodore B. Olson, who was only too happy to lead the charge.

  In keeping with the frantic pace, Olson filed the lawsuit on Saturday, November 11. Two days later, Olson stood before Judge Donald M. Middlebrooks in federal court in Miami and asked him to stop the recounts before they had even started. His rationale was pretty thin—that Gore’s “selective” recounts in only four counties violated the Equal Protection Clause of the Fourteenth Amendment, because they emphasized the votes of some counties over others. (Bush, of course, could have cured this problem by asking for his own recounts anywhere he wanted.) The judge had been working as hard as the lawyers: he was ready with an opinion by the time oral argument was completed on Monday.

  Middlebrooks rejected Bush’s position and allowed the recounts to proceed. “Under the Constitution of the United States, the responsibility for selection of electors for the office of President rests primarily with the people of Florida, its election officials and, if necessary, its courts,” he wrote. “The procedures employed by Florida appear to be neutral…. I believe that intervention by a federal district court, particularly on a preliminary basis, is inappropriate.” Far from deterred, Baker and the rest of the Bush team had plenty of fight left. The onslaught of litigation prompted by the election had just begun.

  The justices and their staffs watched the developments in Florida with the same bewildered fascination as the rest of the country did. But there was one person at the Court who was already thinking several steps ahead in the process. That was Anthony Kennedy.

  In part, Kennedy was just doing his job. The justices divide up responsibility for procedural matters by circuit courts of appeals, and Kennedy was assigned the Eleventh Circuit, which included Florida. So he had some reason to monitor the developments there. On the day after Judge Middlebrooks’s decision, Kennedy circulated a copy to all the other chambers. Just keeping you apprised, the cover memo said. Just filling you in.

  In a minor but noticeable way, Kennedy had contravened the rarefied mores of the Court. All of the justices read the newspaper; all of them knew what was happening in Florida; none of them needed Tony Kennedy to give them the latest news. It was amusing, more than offensive, that Kennedy was sniffing around the unfolding controversy. The memo showed just a hint of overeagerness to get in on the action. No one else on the Court would have sent that memo. More than any of the other justices, Kennedy loved drama and what he called “the poetry of the law.” Kennedy’s vanity was generally harmless, almost charming—sort of like the carpet in his office.

  Understatement was the rule for the decor in most justices’ chambers. Everyone had a few personal touches—O’Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit his “called shot” home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge’s chambers. Worse (or better, depending on one’s perspective), the carpet was festooned with gold stars—garish touches that made the office a sort of comic tourist attraction for law clerks and other insiders. All of the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection. What was more, he wedged his desk into the far corner of his office, away from the door, so that visitors had to traverse the expanse of his room to shake his hand. It was an office that tried hard, maybe too hard, to impress. (Kennedy even labored on his magnificent view of the east front of the Capitol. When Congress announced plans to build a massive visitors’ center between the Court and the Capitol, Kennedy took the lead in lobbying the legislators to make sure it was built entirely belowground, so as not to disrupt the vista. The negotiations turned out to be surprisingly complex, and lasted for years, but Kennedy won this battle, and the view from the Court was largely preserved.)

  The first Kennedy memo to his colleagues about the legal machinations in Florida was followed by a second, then another. He was almost providing a legal play-by-play. His hunger for the case was palpable.

  Once the Bush lawyers failed in their effort to have the federal court shut down all the recounts at once, they tried to do it one county at a time. By now, both sides had become familiar with the iron law of recounts: the trailing candidate tries to open up the process and recount as many votes as
possible in as many places as possible; the leading candidate does just the opposite, fighting to limit the number and locations of any recounts. This wasn’t high principle, just political warfare by other means.

  The Gore forces had one principal advantage—Florida law—and one major disadvantage—Katherine Harris—in their fight for recounts. State law had a strong presumption in favor of allowing recounts to reach accurate results. As for Harris, she occupied the previously obscure position of secretary of state. An heiress to a real estate fortune, she had an imperious manner and big ambitions. She had vaulted quickly from the state senate to statewide office and had plans to move up the Republican hierarchy. Earlier in the year, she had traveled to New Hampshire to campaign for George W. Bush and later served as cochair of his campaign in Florida. Like many secretaries of state around the country, Harris was both a partisan elected official and the ostensibly neutral arbiter of elections in the state.

  Immediately after Election Day, the Bush team placed one of its most trusted legal advisers in Florida, Mac Stipanovich, as its representative in Harris’s office. She made no decisions in this period without consulting him. The most important issue for her to decide concerned the recounts. Could the recounts continue longer than seven days after the election, that is, past Tuesday, November 14? The law said both that Harris should certify by the seventh day and that she could also allow recounts to proceed longer. Of course, she did not. If the counties weren’t done by then (and three of the four were not finished by then), too bad for them—and Al Gore. But then on Friday, November 17, the Florida Supreme Court, on its own initiative, stepped into the fray to overrule Harris and say that the counties could continue counting votes. The justices of that court scheduled a full argument in the case for Monday, November 20, but in the meantime they ordered the recounts to proceed.

  By Monday, Bush’s margin in Florida had grown from 300 to 930 votes. (Volusia County had completed its recount, with a net gain of 27 votes for Gore, and the counting of overseas absentee ballots had netted 630 votes for Bush.) The issue before the Florida Supreme Court was whether the recounts in Palm Beach, Broward, and Miami-Dade would be allowed to proceed. If the Florida Supreme Court stopped those recounts, there was no way that Gore could win.

  By 2000, the state supreme court represented a singular part of Florida government. Florida had a Republican governor, Jeb Bush, and Republican majorities in both houses of the state legislature. The only remaining Democratic power center in the state was the supreme court, where all seven members had been appointed by Democratic governors. (One justice was a joint appointment by Bush and his Democratic predecessor, Lawton Chiles.) The court wasn’t shy about favoring a progressive—and Democratic—agenda either, as the Bush campaign soon discovered. On Tuesday, November 21, the Florida Supreme Court ruled that the recounts should proceed for the next five days and that Harris could not certify the results until Sunday, November 26. Clearly, the Florida justices felt a great deal of pique toward Harris, whose conduct they described as “unreasonable,” “unnecessary,” “arbitrary,” “contrary to law,” and “contrary to the plain meaning of the statute.” But the unanimous opinion was not very well reasoned. There was no explanation for why the justices chose to extend the deadline five days—as opposed to four, or six, or any other number. In denouncing Harris for looking too political, the Florida court wound up looking political itself. Still, the Gore forces were suddenly back in business.

  The question, then, was whether the U.S. Supreme Court would agree to get involved, and the Bush campaign had a noted authority at close range. About two days before the argument in the Florida Supreme Court, John G. Roberts Jr. came to Tallahassee. Though he was only forty-five at the time, Roberts was already among the top advocates of his generation before the justices. (Eight years earlier, George H. W. Bush had tapped Roberts for a seat on the D.C. Circuit, but Democrats in the Senate stalled the nomination into oblivion.) In Tallahassee, Roberts helped Michael Carvin prepare for his (unsuccessful) representation of Bush before the Florida justices and then advised Baker on how to get the U.S. Supreme Court to take the case. The conventional wisdom was that the justices would want no part of the controversy. But Roberts’s gut told him otherwise. They’ll take the case, Roberts vowed to Baker, and you’ll win it there, too.

  It had been two weeks and a day since the election, and until this moment the controversy in Florida still seemed remote from the work of the Court. As Judge Middlebrooks had said, the management of elections is traditionally governed by state law, which is in turn interpreted by state courts. The U.S. Supreme Court had no authority to tell the Florida Supreme Court how to interpret Florida statutes. Not once in the history of their Court had the justices in Washington imposed themselves in the middle of vote counting in one of the states. Why would they do it now?

  Roberts had to return to Washington to argue a different case before the Supreme Court, but following his advice, the Bush team filed its petition for certiorari on Wednesday, November 22, the day before Thanksgiving. The Republicans essentially gave the justices a menu of choices. The Republicans claimed that the Florida court violated federal laws on the conduct of elections; that it violated Article II of the Constitution, which suggests that state legislatures, not state courts, make the rules for presidential elections; that the recount process violated the Equal Protection and Due Process Clauses of the Constitution.

  The secret to Olson’s brief was more in tone than in substance. He played on the justices’ collective vanity (not just Kennedy’s), saying in essence that they were the only grown-ups in the room. All the others—especially the justices of the Florida court—were just a bunch of partisan hacks. Olson claimed that the Florida court opened the door to “an electoral catastrophe” and that the Supreme Court of the United States had to step in to prevent “the ascension of a president of questionable legitimacy, or a constitutional crisis.”

  Of course, there were very good arguments in response to Olson’s claims. Elections had always been run by states, not the federal courts, and Florida was merely doing what states had done for generations. They were following their own law on recounts. Counting votes had never before been seen as a violation of the U.S. Constitution. Moreover, as a practical matter, the situation in Florida was changing day to day; by the time the justices in Washington heard arguments in this case, the facts on the ground in Florida might be very different—which was why the Supreme Court rarely took a case until it was concluded in all respects. But such arguments never reached the justices, because the Republicans asked for expedited consideration of their case. They wanted the Court to rule on their cert petition before the Democrats even had a chance to defend the ruling of the Florida Supreme Court.

  Many litigants before the Supreme Court ask for speedy treatment, but the Court almost never grants it. Particularly during the later Rehnquist years, when the chief put such a premium on efficiency, the Court rarely deviated from its customary schedule. The rhythm of its deliberations on cases seldom varied. The justices rarely even saw a case before all the briefs were submitted by both sides, and then they generally took weeks, if not months, to resolve it.

  But in the matter of the election in 2000, the justices departed from their usual rules. There was no order, no regularity, no procedure. The justices decided them on the fly. When an old friend called Stevens to ask for a ticket to the argument of the case, the senior justice answered dryly that he would have to follow the usual procedure on seating. “And I think that’s the only procedure that’s going to be followed around here,” he added.

  Most of the justices were not even in the Court building on Wednesday, November 22, so their clerks and the Court staff had to track them down to give them the Republicans’ briefs. Many of the law clerks had already left for the Thanksgiving holiday, so the decision on Bush’s cert petition went to the justices alone. And they did not wait to hear from the Democrats to issue their decision.

  As the justice fo
r the Eleventh Circuit, Kennedy coordinated the rulings, which came in on Thanksgiving Day, November 23, and the following morning, Friday, November 24. The votes were:

  Rehnquist—grant

  Stevens—deny

  O’Connor—grant

  Scalia—grant

  Kennedy—grant

  Souter—deny

  Thomas—grant

  Ginsburg—deny

  Breyer—deny

  Since only four votes were needed to grant a petition, the Republicans had one more vote than necessary. The Supreme Court would take the case.

  Around midday on Friday, Kennedy summoned one of the lawyers who worked in the clerk’s office. These attorneys were career professionals (not to be confused with the individual justices’ law clerks, who served for only a year) and tended to be especially wise about the ways of the Court and skillful in predicting what the justices would do. The lawyer Kennedy called was so sure that Kennedy would simply say the Court had denied certiorari that he didn’t even bring a pen and paper to the justice’s chambers. He could remember a single word: deny.

  But Kennedy’s first words to the lawyer were, “I hope you brought a pad.”

  The Court had done more than simply grant the writ of certiorari and the petition for expedited consideration. The justices also accepted two of the three “questions presented” in the Republicans’ cert petition. They were willing to hear the Bush team’s arguments on whether Florida had violated federal law or Article II of the Constitution. But they did not think the argument that Florida had violated equal protection merited further consideration.