by Jake Tapper
“There’s no one at any time who is going to touch the ballots,” Burton says, all business. “There’s going to be law enforcement in here, and they are going to be instructed as to that. We’ve got the hand slappers here.”
Burton’s already seen enough from the Democrat and Republican attorneys to know that this is not a courtroom where he is the king. This is something far more bizarre and chaotic, something from the messy world of politics. For that reason he wants the observers to keep their traps shut. “Their job is to observe, period. If they participate in the process, we will be here until God knows when.
“We are not going to be here until three weeks from Sunday to decide,” he says in words that will prove awfully prophetic. Yes, the counters won’t be here three weeks from Sunday. Instead, the counters will actually be here two weeks from Sunday. But of course, nobody knows that right now. Right now they think it might all be over soon.
So fearful are the Bushies of what a hand recount might bring, they actually seek a temporary restraining order against the four Florida canvassing boards, as if Bush were an abused ex-girlfriend and the canvassing boards drunk and deranged stalkers.
In a brief put together by Olson, Michael Carvin, and the Bush crew, the Florida “voters”—real-estate tycoon Ned Siegel, et al.—on Saturday, November 11, ask Judge Donald Middlebrooks of the District Court for the Southern District of Florida to stop the hand recounts. The brief gets relatively little notice from the media, since even conservative legal scholars wonder where there could possibly be a federal issue in all of this. But in terms of what will eventually happen in the whole grim saga, it’s as if the brief were written by Nostradamus, with a possible assist from Machiavelli.
Olson argues that the federal government needs to stop the hand recount because of violations to the 1st and 14th Amendments to the U.S. Constitution. Any such hand recount, without a showing of fraud, corruption, or coercion, would “impermissibly impede the plaintiffs’ constitutional right to have their votes certified in a uniform and even-handed manner.
“The votes of citizens across the State of Florida will be unconstitutionally diluted if the Defendants conduct a manual recount of only selected ballots in portions of four heavily Democratic counties,” the brief goes on. “Under Florida’s scheme for discretionary manual recounts, the question whether a vote is subject to a recount and how it is counted is left to the unfettered discretion of the county canvassing boards and will vary throughout the state.
“Simply stated,” Olson’s brief continues,“under Florida’s scheme, identical ballots in two different counties will be treated differently. For example, where there is a partial punch for one candidate, a ballot may be counted where the county board has decided to conduct a manual recount and, pursuant to wholly subjective perceptions, has determined that the voter ‘intended’ to vote for the candidate. An identical ballot in another county will not be counted for that candidate in a county that has refused to engage in the manual recount.”
This, Olson argues, violates the equal protection clause of the Constitution since Florida’s county-by-county recount laws—which vary due to “the arbitrary and unfettered discretion of government officials”—violate the right of voters to be treated equally.
Olson includes other arguments that will not fare so well with the test of time. Having government officials implementing recount procedures that are “pervasively arbitrary” violates due process, he says. Even giving the government officials such discretion is a violation of the 1st Amendment, he goes on.
Carvin himself, who hoisted much of the 3 U.S.C. 5 argument * into the brief late last night with Columbia Law School professor John Manning, thinks Olson’s equal protection argument is something of a reach. Not until there’s a final count can this charge be credibly made, Carvin thinks.
But the brief—signed by Olson, Terwilliger, Marcos Jimenez (Frank’s older brother), Barry Richard, and Ben Ginsberg (with his name spelled “Ginsburg”)—will end up proving to be a document that the Democrats perhaps should pay more attention to. Not the courtroom lawyers so much as Whouley’s Boston ground troops. At this point, though, since not one of the four counties has even begun its hand recount, the GOP complaints seem like, well, baseless whining.
Hours after the motion for a restraining order is filed before Middlebrooks, Klain phones up the Cambridge, Massachusetts, home of Harvard Law School professor Lawrence Tribe, like Olson one of the highest-regarded Supreme Court attorneys in the country. Klain is a friend and former student of Tribe’s, and he and Tribe’s wife, Carolyn, were once co-chairs of the unsuccessful Senate campaign of Rep. Ed Markey, D-Mass. Tribe recommended Klain to Justice White for his clerkship.
Klain asks Tribe if he has any ideas on how to deal with the federal attack. Before Tribe knows it, there are fifteen or so people listening to him via speaker phone, as he finds fallacies in the Bush team’s federal case.
The substantive complaint hammers the whole idea of manual recounts, Tribe observes. But this is a weak argument, he says. These counts take place under the watchful eyes of observers from both parties, and even sometimes the media. In some ways, they’re much more accurate, not less. He goes on, poking holes in the due process argument, the equal protection argument, the whole idea of whether there is a federal issue at stake. The call soon ends.
Soon enough, Klain calls back.
“The Vice President would really like it if you could get on a plane immediately to argue this for us,” he says. “We’ll find a charter plane for you if you want.”
Tribe says that he’ll need a minute to confer with Carolyn, his chief adviser. She usually discourages him from taking on new projects, since he’s so overextended. But this time she’s on board. “This could determine who becomes the next president,” she says. “The issue of making sure that all the votes get counted is awfully close to what you’ve spent your life struggling for, in terms of constitutional rights. I mean, if you don’t do this, I don’t know what you would do.”
Tribe arrives in Palm Beach that evening. He flies commercial; the charter flight would have gotten him down to Florida later. Upon arriving, he hears that arguments have been scheduled for Monday.
The Volusia canvassing board changed its mind yesterday, and as soon as it finishes tabulating its 400 or so write-in votes today, it will commence with a full recount of its 184,019 ballots.
Broward’s 1 percent sample hand recount will commence on Monday, and on Tuesday the members of the Miami-Dade canvassing board will vote to see if they’ll go ahead with their test 1-percent hand recount.
The only action in South Florida today, therefore, is at the Governmental Center in West Palm Beach, where Team Gore’s crucial Step One—a hand recount of 1 percent of a county’s ballots—has begun.
LePore is numb, with butterfly ballots in her stomach. Ever since Tuesday, she’s been unable to sleep—she dozes in and out. Her eyes are bloodshot. She has no appetite, and when she does try to eat, she can’t hold it down, one way or another.
The other two members of the canvassing board are Carol Roberts and Judge Burton. Both the Republican and Democratic lawyers on-site have been sizing them both up.
Roberts is an unrepentant partisan Democrat, from the proclamations emanating from her frequently flapping mouth down to the Gore-Lieberman bumper sticker on the front of her Lexus SUV. She’s always been ambitious; she smokes MOREs, and she’s always wanted more, too, from the day she got engaged to a twenty-nine-year-old doctor at the age of sixteen (unbeknownst to him), to the impulsive beginning of her political career.
That began when the mother of six learned that the two West Palm Beach city commissioners were running unopposed. This bothered her. She drove down to City Hall and decided to run against the one she’d never heard of before. And she beat him. Other seeds of ambition were planted. She was elected to the county commission in 1986.
Blond and pink-lipsticked, Roberts is known as a fairly effective commissi
oner, with smarts that belie her lack of a college degree—if also with an ego that sometimes outmatches her talents. Her office is decorated with photographs of her with Bill, her with Hillary, her with Burt Reynolds. Her home is the same way—with Gregory Peck, Geraldine Ferraro, Ted Kennedy, Don Shula. When she was elected president of the Florida Association of Counties, she was thrown a big party. By Carol Roberts.
“I’m accustomed to being vocal,” she would later say. “I don’t mind having an argument if I think I’m right. It’s part of my personality, it’s what I taught my kids: stand up for what you believe in.” The fact that two of her six kids are Republicans is proof that they took her advice to heart, she would argue.
So the Republican lawyers, led by local rich boy Miami attorney Mark Wallace, thirty-two, feel they know right off the bat where Roberts is coming from.
Burton’s a different breed of cat.
They know he’s a Democrat. But, on the other hand, he was appointed to the bench in May by Jeb. So, in Florida terms, he’s complicated.
Gray-haired with icy blue eyes and a wattle of neck chub that practically swallows his chin, Burton’s a Newton, Massachusetts, boy who moved down to Florida to follow in his older brother’s footsteps and attend law school. He was with the state’s attorney’s office from the time he received his J.D. on, save for five years after he and his bro set out a shingle of their own in 1990.
Burton liked prosecuting, he liked nailing murderers, liked running the crimes-against-children unit, liked taking loser cases, because he found them challenging. His highest-profile case had been the 1987 trial against fast-living ex–National Hockey Leaguer Brian Spencer, who had been accused of kidnapping and murdering the son of a Palm Beach realtor who was a client of Spencer’s hooker girlfriend. Burton lost the case in October 1987; Spencer was shot to death the next June.
Burton was picked to be on the canvassing board almost the same way he heard that Jeb had picked him to be a judge: a short, surprising, and very brief phone call came in and changed his life forever. In May, after being passed over twice for an appointment to the bench, Jeb phoned up.
“Mr. Burton, Jeb Bush, how you doing?”
“Um, fine,” Burton said, not sure if it was really Jeb, pretty sure that it was a friend playing a prank.
“So you want to be a judge?” Jeb asked. Burton said yes. “All right, well, I just wanted to let you know that I’m appointing you to county court.” Burton thanked him. His first day was May 8.
Three months and change later, at the end of August, Burton got a call from the secretary to the county’s chief judge, Walter N. Colbath, Jr. The judge who normally sat on the canvassing board was on the ballot this year, so he had to recuse himself, and Colbath wanted Burton to take his place.
“That’s fine,” Burton said. “What do I do?” Burton didn’t even know what the canvassing board was.
“You deal with elections stuff,” the secretary said. It’s no big deal, she said. “Go talk to Theresa LePore, and she’ll give you a little background on what you’ll need to do.”
“That’s fine,” the easygoing Burton replied.
By today, Saturday, Burton has already had to do much more than he’d ever anticipated. There was the first machine count, which resulted in a net of 643 more Gore votes. There was the matter of speaking to the press, which he’d been used to in much smaller numbers—maybe a reporter or two from the local paper during a murder trial or something—though nothing like the ravenous wolf packs now camped outside the Governmental Center. But someone had to do it, and he was sent out to do so by county officials who were afraid of what Roberts might say and sympathetic to the shell-shocked LePore.
At 2:03 P.M., a bunch of bureaucrats carry in three silver metal suitcases containing the 4,627 ballots.
The sorting begins, as does the kibbitzing. “You are going to have to leave if you tell anybody anything,” Roberts says to an observer who’s caught speaking to a sorter.
“Here is the deal,” Burton adds. “‘Observer’ means you observe. That means the sense of your eyes. If you have a problem, write it down.” Hands go up. A cell phone rings.
“Who has a phone?!” Roberts asks. “OUT!”
In interpreting just what permutation of incompletely punched-out piece of chad constitutes a vote, LePore had informed Roberts and Burton about a guideline that the board—under Jackie Winchester—had adopted in 1990, which ruled that ballots with partially punched chad could be counted as votes.
There’s the “hanging chad,” she explains, in which the chad is hanging on to the ballot with one corner; the “swinging door chad,” in which the chad is connected by two corners; and the “tri-chad,” in which the chad is connected in three corners, with one corner punched out. All of these are votes according to the 1990 standard. A “dimpled chad,” however, in which all four corners are attached but there’s a puffed indentation in the middle of the chad, does not count as a vote.
Nevertheless, when the board members start to examine the undervote and disputed ballots that afternoon, they seem to abandon the 1990 precedent. They begin holding ballots up to the light to see if any light can be seen through the chad—what they call the “sunlight” or “sunshine” standard. This meets the aggressive objection of Mark Wallace, the lead Republican attorney at their table.
Wallace has been on the Bush program since 5 A.M. or so Wednesday morning, when Jillian Inmon, executive director of the Bush-Cheney state effort, roused him from slumber in his Coconut Grove penthouse and convinced him to hop in his black BMW and get to Palm Beach to supervise the machine recount. After graduating from the University of Miami (’89) and University of Miami Law School (’92), Wallace worked at his venture-capitalist daddy’s law firm for a bit before he took a leave to serve as an aide on the gubernatorial race of this cool guy Jeb he knew from Hurricanes games.
To Wallace, a couple things seem clear right from the get-go. One: Carol Roberts is on the other side. Two: the canvassing board has no idea what it’s doing, or how to do it. And of course he’s not exactly about to keep his opinions secret.
On the early afternoon of Wednesday, Coddy Johnson and Kevin Murphy—fresh from Austin—had met him in the Governmental Center parking lot. “Guys,” he said upon their arrival, “it’s a little crazy in there.” It was a line they would repeat to each other frequently throughout the Palm Beach hand recount; and it was chaos they would use to their advantage throughout the Palm Beach ordeal.
Not surprisingly, Roberts and Burton take a fairly immediate dislike to him. They think that he’s there to tie things up, to delay, to gum up the works. Wallace himself will refer to “the four-corner offense”—a reference to a strategy by various college basketball teams to run out the clock by leisurely throwing the ball around, eating up valuable seconds—though he will do so by way of denying that he’s doing it.
And not only is Wallace slowing things down, but he can’t even figure out a subtle way to do his damage. Wallace sits so close to Burton his knee lightly hits the back of Burton’s chair. At another point, Wallace’s chin makes contact with the back of Burton’s left shoulder. Mouth agape, objecting to myriad ballots on which he says he doesn’t see votes, Wallace very early gets on Burton’s nerves.
“I’m going to voice my objection,” Wallace says, when Roberts holds a ballot up to the light.
Again and again. Over and over. If Burton got a dollar for every time Wallace objected, before the day was done he could’ve afforded one of those fancy suits that Warren Christopher and Ted Olson favor. Though the bespoke pinstripe isn’t quite South Florida style.
Fort Lauderdale attorney Ben Kuehne, Wallace’s Democratic counterpart, also chimes in. He clearly wants the board to use the most liberal interpretation of the sunlight rule as they can. Kuehne’s backed by three of Whouley’s Boston Boys, Dennis Newman, Jack Corrigan, and David Sullivan. “Turn the card over,” Kuehne says at one point—since light can sometimes be seen if the ballot is held at
a different angle.
Wallace gets mad. The board, made up of three Democrats, is listening to Kuehne more than to him, he says.
Roberts insists that she was already holding the card at different angles, that Kuehne’s advice was redundant.
“You’re injecting a partisan flavor to the process,” Wallace says. “It’s not right.”
At around 3:45, a ballot is held up that has light shining through the no. 3 chad—a Bush vote.
“There is light through there,” Wallace says.
“I see light,” Roberts agrees.
“Thank you, Carol,” Wallace responds.
Roberts shows Burton a dimpled chad, sans light.“Somebody attempted to push something,” she says.
“Even though you see someone attempted to do something, you see no light,” he says.
Wallace tells them to be careful handling the ballots. Bending them could cause chad to improperly fall from the ballot, he cautions.
Burton sighs heavily.
“Yes on a number three right here,” Burton says, pointing to a Bush vote.
“Woohoo!” Wallace cheers.
The canvassing board realizes that it’s now being more lenient with the sunlight standard than it was at the beginning of the precinct’s count. The board agrees to look at some of the earlier ballots with the newer, more lenient standard.
“That is completely not fair,” Wallace says. “It’s another recount.”
“It’s a changing standard, I suppose,” Burton allows.
“Light is light,” Wallace says.
“We’re here to make sure everyone gets a fair chance,” Roberts says.
But to Wallace, even if the board applies the same new standard—what he refers to when he objects that “the sunshine rule doesn’t apply to a micron of light!”—it’s pretty clear what’s going on. Palm Beach County went for Gore over Bush 67 percent to 33 percent. Even if the pinhole votes are fairly distributed, that’s still a 2-to-1 Gore advantage.