by Jake Tapper
Putting the card in the frame backward so everything is out of alignment.
Failing to fully punch out the perforated circle of paper (the chad), thus permitting the chad to slip back into place; when the computer reads the card, it detects no hole and records no vote).
Mistakenly voting for two candidates for the same office.
The posture a campaign takes with regard to punch card problems will depend on whether the candidate is ahead or behind. If behind, a candidate should consider a request for a partial or complete hand count of punch cards to allow election officials to determine voter intent on questionable ballots. Punch card and paper ballot voting provide the greatest chance of change in voter totals.
— The Recount Primer, p. 33
At a November 9 meeting, Christopher and Daley—referred to as “The Flag” by their underlings since as former cabinet secretaries they had flags in their offices—discuss their options with Democratic D.C. lawyers Klain, Young, Sandler, Chris Sautter, and two Miami attorneys, Ben Kuehne and Kendall Coffey.
Coffey is considered something of a ringer. He’s a former U.S. attorney, and someone who’s known to be able to negotiate the tricky politics of Miami, which at least one Gore lawyer calls a “snake pit.” Coffey—and his best friend, Kuehne—know election law in Florida. And looking at Tuesday night’s election, they already see things they don’t like, things they think are illegal: votes, ballots, and procedures that Coffey intends to challenge. And Coffey’s no stranger to desperate situations and lost causes in Florida, having represented Elián González’s Miami relatives.
More important, Coffey and Kuehne worked on the 1997 Miami mayoral election scandal, representing Joe Carollo. They were the guys who sued on Carollo’s behalf, and it all ended up with Carollo in City Hall.
Of course, Coffey also brings to the recount table his share of controversy. As an attorney for Elián’s Little Havana relatives, he was a major critic of President Clinton and Attorney General Janet Reno. And as a former U.S. attorney for South Florida, Coffey received high marks for his performance as a successful, high-profile prosecutor of major drug lords—until he had to resign after biting a stripper.
Ahem.
Let me back up.
A longtime Miami attorney involved with the Democratic Party, Coffey lost an election for the state Senate in 1992, scoring only 43 percent of the vote against Republican Al Gutman.
To Coffey’s good fortune, however, Clinton was elected the same day. And after Clinton’s problems with attorney general nominees were settled, Senator Graham recommended to Reno that Coffey become South Florida’s U.S. attorney, prosecuting federal civil and criminal cases from Fort Pierce to Key West, replacing Republican appointee Roberto Martinez. Coffey was confirmed by the U.S. Senate in November 1993.
In February 1996, Coffey was prosecuting Augusto “Willie” Falcon and Salvatore “Sal” Magluta—known as “Los Muchachos”—who were charged with smuggling $2.1 billion worth of cocaine into the United States. Surprisingly, Los Muchachos were acquitted. It would later come out that a juror, Miguel Moya, received a bribe of $500,000 to throw the case. Eventually, Moya would be sentenced to seventeen and a half years in jail as a result.
But Coffey obviously didn’t know about the Moya bribe at the time. Despondent on the night of February 22, at around midnight Coffey headed to Lipstik, a Miami strip joint. At some point he got very drunk, and he struck up a conversation with “Tiffany,” a thin, blond former bank teller, then twenty-eight, whose real name is Tamara Gutierrez.
Coffey bought $200 in “Lipstik money,” used to pay the dancers for private sessions and lap dances in the fabled “champagne room.” With that destination on his itinerary, Coffey also purchased a $900 magnum of Dom Perignon.
In the champagne room, Coffey and Tiffany sat on one of the room’s two expansive couches. He told her he’d lost a big case. He drank his Dom Perignon. He gave her little affectionate love bites. They had a moment.
Things got a little hairy, however, when Coffey tried to kiss Tiffany on the lips. She didn’t want him to, and when she tried to wriggle away, he bit her left arm, only not so affectionately this time. He broke the skin and drew blood.
Tiffany screamed.
A bouncer and the night manager loaded Coffey headfirst into a cab.
Rumors immediately began to race through the area like a hurricane. In mid-March, Coffey told the Sun-Sentinel that the rumors were untrue. Had he been at Lipstik that night? asked a reporter. “No,” Coffey said. He added that he’d “never” been to the club. “It absolutely never happened,” Wilfredo Fernandez, a spokesman for the U.S. attorney’s office, told the Miami Herald. On March 27, the incident was reported to the inspector general’s office. On March 28, investigators were sent to South Florida to check out the charges.
It turned out that Coffey, by the way, had purchased his Dom Perignon, and his $200 in Lipstik money, with his American Express card.
In May, the Miami Herald reported that Coffey was under internal investigation for the incident. This was just two days before GOP presidential candidate Bob Dole—who had been making a campaign issue out of Clinton’s federal appointments—was to arrive in Florida. Coffey was summoned to D.C. to talk to Reno.
A day later, Coffey resigned.
The husband of the bitten one said that he was “shocked” that Coffey quit. “I want to see him reinstated,” he said to the Sun-Sentinel. “He bit her, but not like a crazy man.”
F. Scott Fitzgerald was dead wrong: There are plenty of second acts—third acts, fourth acts—in American public life.
Here’s Coffey’s next act.
Daley and Christopher ask the accumulated Democratic lawyers for a brief discussion of Florida election law. They get one.
Florida has sixty-seven counties, but four ways of voting. Forty counties have high-tech “optical-scanning” cards, where you fill in circles with a no. 2 pencil, as you do the SATs. Martin County uses old-school mechanicallever machines, Union County uses paper ballots, and twenty-five counties use punch cards.
There are some problems. Machines don’t always read the card. You have to make sure that the bits of chad are completely punched out of the ballot, which the seldom-read instructions clearly state, or the machine won’t be able to read any selection, and your ballot will be an undervote. And, of course, you can vote for only one candidate, lest your ballot be an overvote.
Given the way these things work, you could blame many of the problems on voter error. You could additionally blame it on the fact that punch-card ballots just suck. In 1988, the National Bureau of Standards studied the issue and recommended that punch-card ballots be scrubbed themselves because of “inaccuracy or fraud in computerized vote-tallying.” (The report cited a 1984 election in Palm Beach County, where a candidate for property appraiser sued the county for a number of ballot problems, including “hanging chad.” He had lost by 242 votes. He lost his court case, too.) There’s pretty clear evidence that counties that use punch-card ballots disenfranchise their voters in the process. Brevard County, for instance, used punch cards in its 1996 presidential race tally, and 26 out of every 1,000 ballots were undervotes, not registering a vote for president. Brevard switched to “Opti-scan” ballots, and in the 2000 race that proportion fell to less than 2 in 1,000. An almost identical change happened in Volusia County.
Whoever you blame, in this year’s presidential race, Palm Beach County is discarding 29,502 of its 461,988 ballots cast, because of both undervotes and overvotes. This is a high rate of ballot rejection, 6.39 percent, but by no means the highest in Florida. In Duval County, 9.23 percent of its ballots have been discarded—a full 26,909. Miami-Dade’s discard rate was only 4.37, but since it’s the most populous county in the state with 653,963 voters, that still means 28,601 ballots in the trash.
In 1992, 2.3 percent of Florida ballots weren’t counted for president; in 1996 that was 2.5 percent. This year, the percentage is 2.85 percent. That’s no
t exactly an improvement. A full 173,992 ballots will be thrown away statewide this year, from Key West to Pensacola. About 105,000 are overvotes, about 60,500 are undervotes. Many undervotes are voters rejecting all of the presidential candidates—but many aren’t. In Gadsden County, twelve out of every hundred voters didn’t vote right. Were they confused because the presidential ballot was two pages long? Because at the top of the second page it said “Constitution Party” and they thought that was a separate office?
There are two phases to the process, the lawyers explain. In the “protest” phase, parties can request a hand recount of ballots, which would unquestionably find votes in the 175,000 unread ballots. The process begins by looking at a 1 percent sample of the ballots in a county, and if a hand count of that 1 percent shows that there were enough votes missed that it could change the outcome of the election, a countywide hand recount is ordered.
Should they ask for a statewide hand count of these ballots? The Flag asks.
Sautter says yes. Young and Sandler nod in agreement. After all:
If a candidate is ahead, the scope of the recount should be as narrow as possible, and the rules and procedures for the recount should be the same as those used election night….Ifa candidate is behind, the scope should be as broad as possible, and the rules for the recount should be different from those used election night. A recount should be an audit of the election to insure the accuracy and honesty of the results.
— The Recount Primer, p. 5
But there’s concern about the probability that the 1 percent statutory test wouldn’t be met in a majority of the sixty-seven counties. Most of these counties don’t use punch-card ballots, don’t have such high numbers of undervotes and overvotes as are in the southeastern counties Broward, Miami-Dade, and Palm Beach. And anyway, the Democrats don’t have the resources to send lawyers and observers to every county.
Then The Flag raises the political considerations. Though the Florida popular vote is split down the middle, most Florida counties are Republican (Gore won sixteen counties; Bush fifty-one), and the Democratic lawyers have their doubts about the cooperativeness of the elections supervisors in these counties. And, of course, they assume that undervotes in GOP counties will largely be for Bush. Moreover, there is no statutory provision for a statewide recount. It would have to be county by county, it would have to be either signed off by Jeb Bush, so they don’t have to fight sixty-seven separate battles, or ordered by a higher court.
OK, they agree, we’ll ask for a hand recount in some counties. Fine. Now The Flag wants to know: Who evaluates the ballots? What’s the likelihood that they’d be able to get the recounts? What would be the fallout of being denied recounts?
The Florida lawyers answer, with Sandler and Young also jumping in. The ballots will be looked at by county workers supervised by county canvassing boards made up of a judge, a local election official, and the elections supervisor. It’s likely that they will be able to get recounts. But if they were to try to get a recount in a county where they have no case, that could undercut the legitimacy of their other claims. They have to be careful.
What about contesting the election? What about the butterfly ballot? Christopher wants to hear more about this.
“Ultimately, the test is ‘Was the will of the electorate suppressed?’” Coffey says. “But Palm Beach County is the battleground. There are big numbers of overvotes, confusion over Buchanan.”
“If we were to file, where would we do so?” asks Christopher.
“Probably Tallahassee,” Coffey says.
“What about other non–Palm Beach claims?” Klain asks.
“We don’t know,” Coffey says. “We’re still looking for hard facts.”
“What about that state seal issue?” Klain asks, referring to Jeb Bush’s absentee-ballot mailing to Republicans, which used, perhaps improperly, the state seal.
“That’s not enough on its own,” Coffey says. Underlying much of this discussion is the question of whether or not elections officials were purposely helping the Republican Party, which would open up a claim of fraud. There are stories of people being turned away at polling places, being denied replacement ballots, being told how to vote. These are just complaints and anecdotes at this point, however.
Christopher wonders if there’s a federal question here, if federal courts have jurisdiction.
“We haven’t ruled that out,” Coffey says. “But the eleventh circuit is tough on finding jurisdiction in election irregularity cases.”
“What’s the Florida standard for invalidating election results?” Christopher asks.
Coffey says that the Florida Supreme Court will set aside an election “if there’s a reasonable doubt that the election did not determine the true will of the people.”
“Was the form of the ballot illegal?” Christopher asks.
“Probably,” replies Coffey. “But it’s a close call.”
They talk about staffing, about getting people on board, getting them trained, what sort of resources they’ll need. The Florida lawyers say that they have a whole network of attorneys and pols ready. Kuehne and Coffey say that they know Dave Leahy, the supervisor of elections in Miami-Dade. They know that Broward’s supervisor, Jane Carroll, is retiring but aren’t sure what that might mean. Everyone agrees that they need to get much more information about the members of the canvassing boards.
Klain brings up the hand count. Sautter maintains that the Gore campaign push for all counties to be counted. But he’s shot down.
Klain sees a need to limit the recount to the fewest possible counties, so they aren’t opening up random cans of worms. It’ll be just Palm Beach and Volusia, where they have the clearest right to demand recounts in those counties. Daley agrees; to do any more would look like they’re just shotgunning, like they’re trying to slow things down and they really don’t care about the system. We have to be a little more judicious.
“We must stake our requests on principled reasons for wanting a hand count,” Christopher says.
Coffey agrees. “We have good cause in Palm Beach and Volusia.” Not so in the whole state, he argues. They go with those two. *
After the meeting, however, Nick Baldick comes over to the Governor’s Inn and grabs Klain.
“We have to count Dade and Broward,” Baldick says.
Klain says tough luck. “Look, these guys have decided we’re not going to expand this thing, we’re going to pinpoint targeted—”
“We have to count Dade and Broward,” Baldick repeats.
There are 10,750 undervotes in Miami-Dade—a county that went for Gore 328,808 to Bush’s 289,533—and more than 6,000 in Broward, which went for Gore 387,703 to Bush’s 177,902. These are counties that went for Gore—overwhelmingly, in Broward’s case. And the Gore political team suspects that undervotes come from Democrats. There are votes to be gleaned there. Uncounted Gore votes.
Klain walks to Daley’s room, where Christopher is hanging out.
Look, the political people have come back and given us these reasons to push for hand recounts in Broward and Dade, Klain explains.
After some discussion, The Flag agrees.
Soon enough, Democratic lawyers are fanned out to Fort Lauderdale, Miami, West Palm Beach, and DeLand, with one marching order: Get the votes hand-recounted, ASAP.
Daley, meanwhile, thinks about the Miami lawyers, bright guys, smart guys. But this whole revote in Palm Beach? It’s madness! “Well, they did that in Miami!” the lawyers would say. Gimme a break! Daley thinks. “Mayor of Miami?!” That’s like a separate island out there right now. And it’s not exactly viewed as the prototype of good government and good politics. Then this idea that some of Buchanan’s votes could be allocated to Gore?! C’mon! It just doesn’t happen!
Throughout the campaign, Daley tried to be nonchalant about the fact that he saw the media as being soft on Bush and way too hard on Gore. Bush would go before the world and claim to have worked with Democrats on a patients’ bill of ri
ghts, when the truth was he’d vetoed such a bill in ’95 and then, presented with a veto-proof majority in ’97, let it pass without his signature. Almost no one wrote about it. Meanwhile, Gore couldn’t fib a little about how much his dog’s arthritis medication cost without it turning into Watergate. It would piss Daley off, but he’d been raised on politics, and he knew that sometimes one guy got the breaks. In ’92, that guy was Clinton. In 2000, he thought, that guy was Bush.
And now, Daley thinks, Bush has been given the greatest gift of all: the networks had declared him the winner when, in fact, the actual winner of Florida had yet to be established by elections officials. If Bush’s first cousin, fucking John Ellis, * hadn’t declared him the winner on Fox, who knows what would have happened? The whole dynamic would have been different. The headline woulda been “Too Close to Call.” Then everyone, led by the media, would be driven by the quest to find out what really happened, what really is going on. As opposed to Us trying to take it from Them, Daley thinks.
That puts Daley in a tough spot. He’s always tried to be temperate in his comments. But now there’s this impression out there that Gore is trying to take from Bush. Plus, there are rumors that Colin Powell will be named secretary of state tomorrow.
“We have to stop this inevitability shit, or else we’re gonna get rolled,” he thinks. “We have to lay a marker down, we gotta say, ‘Lookit, this is serious, we ain’t going away, don’t try to just roll over us.’”
In these first few days in Tallahassee, we journalists just sit in the hearing room in the state senate and wait for the news to come to us.
Early afternoon on Thursday, November 9, Daley walks in, solid, stolid, and bald—but thinner than you’d expect. He looks like he’s ready to tackle anyone at a moment’s notice. Then there’s the gaunt Christopher, who looks like he’s melting into his expensive gray pinstripe suit. When he speaks, he’s barely audible.