by Jake Tapper
His objections reach a fever pitch. Sometimes. Burton shows him a ballot that appears to be unpunched. “The only argument would be right here,” he says to Wallace, pointing to the Bush no. 3 slot. “That’s no argument, that’s light,” a suddenly agreeable Wallace says.
Funny how that works.
At 4:25 P.M., Burton lets out an enormous bearlike yawn.
“We all feel the same way,” an elections worker jokes.
In Austin, Bush spokeswoman Mindy Tucker is watching the count on TV.
“How ridiculous,” she thinks. “I can’t sit here and watch this. This is the most ridiculous thing! Everyone keeps saying: no one wants to see sausage made. This is proof of that.”
And that’s the trick, she realizes.“If America sees this, everything we said about hand counts is being illustrated on national TV,” she thinks. “This is playing right into our hands.”
You know this meeting at the vice president’s residence at the Naval Observatory, or “NavObs,” is important, because Joe Lieberman’s being asked to attend it on the Shabbos. His chief aide, Tom Nides, is sent to fetch him at a friend’s house, where he’s eating lunch after attending synagogue. During the campaign, Lieberman had said he would work on the Sabbath only if it were a matter of national importance, never if it was just a matter of politics. Clearly, Lieberman has no question in his mind as to which category this meeting falls into.
When Lieberman and Nides arrive, the meeting begins in Gore’s dining room. Gore’s there with Tipper, Daley, Christopher, Bob Shrum, Carter Eskew, with Klain and some of the Florida lawyers on the phone from Tallahassee, Fabiani from Nashville.
Daley’s happy. The Bushies didn’t file any recount requests within the seventy-two-hour period. It’s a victory! Their attitude is clearly, “We ain’t playing, period,” but maybe that will be a mistake by them.
Gore suggests that he go on TV that night to give a simple message. Even though lots of people have clearly been disenfranchised by some irregularities at the polls, he will willingly back off any challenges about them—butterfly ballots, African-Americans kept from voting this way or the other—if Bush goes along with a statewide hand recount. It can be over in a matter of days, and it will be winner take all, and the matter will be settled.
Fabiani thinks that it’s a good idea, but he wants to hold off on it until Sunday late afternoon. This is maybe the ultimate speech of your political career, Fabiani says. Doing it Saturday night, when few people are watching, and when it’s too late to get into the Sunday newspapers, doesn’t make sense. The speech still has to be written, there’s no forum in which to give the speech yet, for such a major speech let’s do it right. Let’s do it after the football games Sunday afternoon.
Gore agrees.
But Klain, Lieberman, and others begin talking him out of the idea. You can’t do this, they say. It’s so early in the process; we don’t know what would happen in a butterfly ballot lawsuit. We don’t know if something terribly egregious happened on Tuesday with black voters that we have yet to hear about. You can’t give these things up without knowing what the details are.
“I’ve been a lawyer, I was attorney general of Connecticut,” Lieberman says. “One thing you learn when you’re in those positions is you don’t take anything off the table until you know all the facts. And we don’t know all the facts.”
Daley’s a big basher of the butterfly ballot suit. It sucks, sure, but there’s no remedy. “People get screwed every day,” he says. He and Christopher are in favor of the four-county hand recounts.
But as the hours pass, Gore’s idea to call for a statewide recount will be pretty much scrapped. Fabiani will spend the rest of his life kicking himself for not letting Gore give the speech, for not arguing more vociferously against the lawyers’ demand that nothing be ruled out.
Kerey Carpenter, thirty-nine, an attractive strawberry-blond, is a litigator and assistant general counsel for Secretary of State Katherine Harris. On Friday, she was sent to Palm Beach because of all the butterfly ballot litigation that names Harris as a co-defendant along with LePore. Before she left, Carpenter was given a silver “Division of Elections” badge by division of elections director Clay Roberts, one she clips inside her wallet. She flashes it around, gets in everywhere she wants.
Kuehne wonders just who the hell she is. Initially he thinks she’s the county attorney, Denise Dytrych, since Carpenter walked out with the canvassing board from the elections office into the counting room. And Carpenter almost immediately arouses Kuehne’s suspicions when she offers advice about something innocuous, with an air of precision, that Kuehne doesn’t think is right. Kuehne asks the Boston boys just who she is. They don’t know. Newman, too, has been wondering who the “mystery woman” is. She’s obviously important, because she has access to everyone.
Kuehne sidles up to Leon St. John, an assistant county attorney.
“Who is that?” he asks.
“She’s one of the elections lawyers,” St. John says.
“Oh, she’s with the county?” Kuehne asks.
“No, she’s with the state,” St. John replies.
It hits Kuehne: this woman is with Harris’s office.
From then on he views every word from her mouth from this perspective: Carpenter is from the Jeb Bush administration sent to help Jeb’s big brother. She’s a political hack who has little knowledge of election law, he thinks. She’s giving political advice, not legal advice, he thinks. He’s shocked to see the preeminent role she plays. She goes back with the canvassing board members when they go to their offices during breaks, as if she’s the canvassing board’s outside counsel. This, Kuehne realizes, is not good.
At about 5:00 P.M., the board decides to break. Roberts needs her MOREs, and Burton needs his Marlboro Lights.
In the small outdoor dining area adjacent to the Governmental Center, Wallace approaches Burton and implores him to stop adhering to the more lenient standard. He thinks the Democrats are stealing the election by finding votes where no votes are to be found. It’s inappropriate, he thinks. He hadn’t had a problem when they started with the sunshine rule, because he’d assumed it was going to be applied as it had been applied in the past in other counties. But it was ridiculous now, the things they were calling votes.
I don’t think you can do this, Wallace says to Burton. You’re a judge, you’re a reasonable man. “Please,” he says to Burton. “Think about it. Your actions are going to be judged for a long time.”
Burton doesn’t say anything. Wallace walks away.
Carpenter also approaches Burton, taking a drag on one of her Benson & Hedges DeLuxe Ultra Lights and talks to Burton about her office’s position on when a full hand recount is allowable under the statute. It’s supposed to be only when there’s machine error, she says. Not voter error, which is how her office regards undervotes.
During this break, Burton tracks down county attorney Leon St. John. “I’m a little uncomfortable about this,” he tells St. John, about the standards they were using before the break. Some of the chad they were counting as votes weren’t even dimpled, they merely had a little pinprick of visible light. Burton thinks it’s absurd, ridiculous. He doesn’t think they’re following the 1990 standard. “Bring it up,” St. John says.
In the counting room, no one knows where Burton is. Time passes. Soon enough, he returns with something to share: the 1990 standard.
“The instructions in the voting machine are as follows:
TO VOTE, HOLD THE PUNCH STRAIGHT UP AND PUNCH DOWN THROUGH THE CARD NEXT TO THE PREFERRED CANDIDATE’S NAME OR ISSUE POSITION. (Emphasis added.)
“The guidelines assume that these directions have been understood and followed. Therefore, a chad that is hanging or partially punched may be counted as a vote, since it is possible to punch through the card and still not totally dislodge the chad. But a chad that is fully attached, bearing only an indentation, should not be counted as a vote. An indentation may result from a voter placing
the stylus in the position, but not punching through. Thus, an indentation is not evidence of intent to cast a valid vote.”
ADOPTED BY THE NOVEMBER 6, 1990, CANVASSING BOARD:
Robert Gross, County Court Judge
Jackie Winchester, Supervisor of Elections
Carol Elmquist, County Commissioner
Halfway through counting the precinct, Burton, LePore, and Roberts decide to adhere to the 1990 standard. If there is no detachment, it will not be counted. Kuehne protests, predictably, but the board disagrees. “My motion is that we stick by the November 6, 1990, guidelines,” Burton says. “I want to do it, and I want to do it right.” LePore and Roberts agree. All three members now restart. Burton takes a card, turns it around, and stays silent. His first card with the 1990 standard and already there’s a change. “This is an example where there is light, but it’s fully attached,” Burton says. “The sun shines through it, but the four corners are attached. It’s no.” Kuehne tries to talk Burton out of the new standard, but he’s shut down. “The board is no longer listening to comments from the spectators,” he says. “Thank you.”
The Boston Boys are not pleased. “We’re in trouble,” Newman whispers to Corrigan. “I think they screwed us.” Newman and the Boston Boys had counted 30 new Gore votes and 19 new Bush votes. Those are now scrapped. After the canvassing board makes it halfway through precinct 193-E again, Gore has 19 new votes, Bush 9. The vote-pickup difference goes from +11 for Gore to +10. One vote here, one vote there, and Gore may not be able to catch up. And why was Burton gone for forty minutes during that break? they say to each other. Who was he talking to? How did his presentation and knowledge about this all get so polished and developed?
Now it’s Kuehne’s turn to be Mr. Objection.
Like the talent scout who discovered Shirley Temple, Kuehne sees dimples, and he likes them.
“Objection,” he says when a ballot that would have been OK an hour ago is now not considered a vote.
Burton spends twenty or so seconds studying a ballot when finally: “I think we have to say no,” he says.
“Objection on that one, too,” says Kuehne. “I object again to the recounting of something again using a different standard. This is contrary to what the public was informed of during the open part of the meeting.”
“Objection noted,” Burton responds.
“For clarification, members of the board, the corner rule applies?” Kuehne asks.
“The rule was stated in the memo,” says Wallace.
“I was speaking to the board, thank you,” Kuehne says dryly.
All these wasted votes! Roberts thinks.“How much is a new system?” she asks LePore.
“A lot of millions,” LePore says. “And if you go to a new system, it has its own inherent set of problems.”
Another ballot, another chad not counted, another objection from Kuehne.
“What party are you representing, Ben?” Wallace asks. “The Free The Chad Party?”
“The people of Florida,” Kuehne says.
They are getting snippy about it.
Outside, Bush spokesman Eskew is bad-mouthing the hand-recount process.
“It’s known that manual counting of ballots is prone to human error,” the South Carolinian says. “It’s prone to the kind of potential mischief, and it’s prone to other influences that don’t serve to create confidence in this process.”
What Eskew doesn’t mention is what the Gore folks have just learned, and are starting to share with selected Democrats and members of the media: George W. Bush himself signed a hand-recount provision into law in 1997. When Texas elections are recounted, the law states, “a manual recount shall be conducted in preference to an electronic recount.”
Is it hypocrisy of the first order? Yes in a major way and no in a minor way. No because Texas has one standard for the whole state, while Florida varies county by county. But yes because Eskew and other Bushies will spend the next month mocking the very concept of hand, or manual, recounts, even while their main man happily signed a law stating that hand recounts are preferable. And yes because the standard Bush signed into law is one of the broadest in the nation. Texas Election Code—section 127.130—says that a hand-counted punch-card ballot may not be counted unless:
(1) at least two corners of the chad are detached;
(2) light is visible through the hole;
(3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote; or
(4) the chad reflects by other means a clearly ascertainable intent of the voter to vote.
And yes because as governor, Bush would joke with Texas state representative Rick Green, Republican of Dripping Springs, about his slim 1998 victory over the incumbent Democrat. Green lost on Election Night by 20 votes, but in his call for a hand recount—which went ahead because of the law Bush signed in 1997—he ended up winning by 36. Bush got quite a kick out of that, calling him “Landslide” Green. And yes because New Mexico Republican National Committee chair Mickey Barnett is setting the stage for a possible recount in his state, where Gore’s margin of victory was rather slim. And yes because Bush and his team had no problem with the hand recounts that went on in some Republican-leaning Florida counties the day after the election, where he picked up votes. And yes because the Bushies are contemplating hand recounts in Oregon and Wisconsin and Iowa and New Mexico. And yes yes yes yes yes yes yes. But Bush and his team don’t care; they almost never do. Quite unlike the Gorebies, who shiver at the slightest negative clause in a New York Times op-ed.
I’m not quite sure which attribute is worse. But I’m pretty sure I know which is the one employed by the winners in political warfare.
Bush invites a bunch of reporters out to his ranch today, to show how calm, cool, and collected he is as he greets Cheney and Andy Card, his chosen chief of staff should he take the White House. The Connecticut-born, Andover- and Yale-educated scion is wearing his cute little cowboy suit today, minus the boots: big, LBJ-style 30-gallon hat, western coat with “Gov. Bush” on its breast, dungarees.
“I think it’s responsible that Dick and I and others contemplate a potential administration,” Bush says. “And so they’ve come, and we’re going to spend the day here today. First Lady Bush will be arriving here soon. It’s nice to be out here in the country. Last night it was such a wonderful feeling when we arrived at Crawford, at about nine-fifty—”
ARF! ARF! ARF!
Spot, his dog, seems to be channeling his anxiety.
“Hey, hey, hey, please,” Bush says to Spot. “It’s not your turn! Sorry, the dog wanted to have a few comments. What she says was, ‘Let’s finish the recount.’” Some of the more sycophantic reporters laugh. “Anyway, arrived—”
ARF! ARF! ARF! ARF!
“Hey, Spotty. Spotty!” Bush turns to his aide, Gordon Johndroe. “Gordon.”
“Yes, sir?”
“Somebody needs to take care of the dog,” Bush says. “Thank you, Gordon. Just go ahead and throw the ball. Heh, heh, heh.” He’s got a Band-Aid on the side of his head; a lanced boil. He takes a few questions. The lifeless Cheney says a few words. Then one last question is allowed.
“Given that this election is so close—”
ARF! ARF! ARF! ARF!
“Spotty, please,” Bush pleads.
“— would you consider appointing Democrats to your cabinet?”
Bush dodges the question.
“Governor, how is your infection?” he’s asked.
“My infection?” Bush says. “Well, I’m sure glad you asked. Heh, heh. What infection? Oh, that one. I was hoping nobody would notice this Band-Aid here.” He hides the Band-Aid with his hand. “It’s fine. It got pretty severely infected, and I had a doc look at it. And I’m taking antibiotics and putting on hot compresses, and it’s beginning to retreat, thankfully.”
Back outside the Palm Beach Governmental Center, Carpenter and Burton are taking another smoke b
reak. Burton has come to like Carpenter. She’s eminently likable.
Born in Jacksonville, Carpenter was raised in Michigan, where she dropped out of high school after tenth grade to give birth to her first daughter at seventeen. But she took night classes, even through her second delivery at age nineteen. She moved to Lake Park, Georgia, dumped her husband, and worked, worked, worked, earning a college degree in three and a half years from Valdosta State College and a J.D. from FSU shortly thereafter. A year or so ago, her friend Debbie Kearney—whom she met when she worked in Governor Lawton Chiles’s legal office—brought her on board in Harris’s office.
Carpenter is wary of Carol Roberts. She’s told Roberts that the 1 percent sample hand recount can justify a full county recount only if it “could affect the outcome of the election.” Roberts doesn’t seem to care, Carpenter thinks. She wants a full county recount no matter what.
Burton asks Carpenter if the division of elections has an advisory opinion on the books about hand recounts, on what the standard is for one to be called. The statute says that one should be ordered only if there’s “an error in vote tabulation,” but what does this mean? An error in the machine? An error in the cards? Error by the voter? How soon could the division of elections get an advisory opinion to the canvassing board?
Carpenter says that she’ll check and get back to him.
Carpenter places a call to Clay Roberts, director of the division of elections. Is there an advisory opinion on the books? Roberts says no. But he can have one for them on Monday. Carpenter, Clay Roberts, and Paul Craft—a division of elections mechanics expert who’s also in Palm Beach—discuss the issue at length.
Carpenter walks back inside and tells the group that an opinion can come as soon as Monday if they want one. But they have to make a request in writing if they want it, she says.
Carpenter does not mention that if they make such a request, whatever response the division of elections gives them will be legally binding.