by Jake Tapper
Incidentally, Seminole and Polk Counties both went for Bush over Gore by about 15,000 votes apiece.
The Bush lawyers do not anticipate that they will have a friend in Judge Donald Middlebrooks, into whose courtroom they stroll Monday morning at around 9 A.M.—Olson, Ginsberg, Marcos Jimenez, and a couple others. Middlebrooks is a Clinton appointee, the Bush legal team points out, downplaying its expectations.
And Middlebrooks sure does sound like a liberal—he worked for former Democratic governor Reubin Askew, even drafting the state’s first sunshine law. In 1975, he got Askew to pardon two innocent African-American men wrongly convicted of two 1963 murders. He worked for powerhouse Steel Hector & Davis, but served as director of the Florida Bar Children’s Fund and headed the Volunteer Lawyer Resource Center for inmates on death row. And while on the bench, Middlebrooks exacted a draconian financial penalty against Royal Caribbean Cruises for dumping hazardous waste into the sea and then lying about it.
What bad luck for the Republicans to draw such a judge!
But they’re entering their case—entered their case, actually, since most of the documents have already been filed and responded to over the weekend—so as to get it to the more conservative Eleventh Circuit Court of Appeals in Atlanta and, if need be, the U.S. Supreme Court.
“I’m not under any illusion that I am the final word on any of this,” Middlebrooks begins by saying, as he stares out on the sea of lawyers before him. “In fact, I take great, great comfort from that fact.”
Rogow, representing LePore, points out that Olson hasn’t sent him a statement of facts.
“We apologize,” Olson says. “We attempted to fax copies of this material and data at an early hour in the morning to everybody connected with it, and I apologize to everyone who did not receive it.”
“Well, the fax machines broke, all kinds of things happened,” says Middlebrooks. “Last night around eleven o’clock our computer system crashed, so a lot of what we were working on disappeared.”
You see what happens when you trust the infallibility of machines?
Olson begins. “It is particularly crucial that votes in presidential elections be counted according to consistent uniform and objective standards,” he says. “Voters must know that their ballots will be treated fairly and equally, not distorted in a partisan standardless vote-counting process.”
After Olson bashes the Dems for selectively plucking four Democratic-leaning counties for their hand recounts, Middlebrooks asks about media reports of a hand recount that took place in Seminole County. Wasn’t that because of a Bush campaign request? No, says Olson. And even though it was a hand recount in a fairly partisan county, it wasn’t done according to “the Florida statutes that we are attacking here, or that we are challenging here.”
(More to the point: it’s not true. Though just yesterday NBC’s Tim Russert said “there was a hand recount in Seminole County,” what actually happened was that some ballots had to be hand-fed into two of the counting machines, which is of course totally different.)
Olson says that the statute allowing canvassing boards to call hand recounts is wildly permissive. “The constraints are unlimited and unfettered,” he says. “And there’s no guidance for the exercise of the discretion with respect to initiating a recount.” But Middlebrooks points out that the county-by-county nature of it all “seems to be a result of Florida’s decentralized system.” He wants to know what Olson suggests should be done about the fact that there is no statewide standard when it comes to assessing ballots.
“There should be a standard,” Olson says.
How can Olson complain about counties making different decisions about recounts when there are at least four different ways that various counties vote? “But even the equipment is different, isn’t it?” Middlebrooks asks.
“Pardon me?”
“The equipment looks like it’s different,” says the judge. “I thought all counties used that stylus punch system, but in something I saw, apparently there’s a wide disparity in terms of even how counties vote. So it seems like the idea of ‘the right standard’ or ‘more precise standard’ might be difficult.”
Olson says that some counties are doing things differently now from how they were done in the past. He says that Theresa LePore has said that in past Palm Beach recounts, observers weren’t allowed to object, while they are this year. This is something that the Republicans don’t seem to have a problem with in the counting rooms, since they’re the ones doing most of the objecting, but here Olson trots it out as an example of the horror. Olson also complains about Palm Beach changing its counting rules in the middle of Saturday’s count. But again, this was something done to the pleasure of the Republican attorneys—like Wallace, Johnson, and Murphy—who wanted the standard tightened up.
Middlebrooks wants to know: “Is y’all arguing there should be only a machine count and no manual count after that? Or that if you are going to have a manual count, you need more precise standards?”
“I think more closely the latter,” Olson says.
On this issue, in many ways, the presidency doth hinge.
Of course, as exemplified by Brevard County—which switched from punch card to Opti-scan and saw its undervote rate plummet—it can also be observed that different voting systems provide different counties’ voters with different odds as to whether their votes will be counted. This, too, would seem to be a violation of equal protection, and one doesn’t have to be a history professor at Dartmouth to guess what sorts of Florida residents are more likely to have been stuck with antiquated and less accurate voting technology. But this argument is not one that Olson is concerned with today.
Olson now paints anyone looking at a ballot as if they’re under suspicion of a crime. He ominously states that “Saturday in Palm Beach, according to one report, certain ballots were twisted and turned.” He does not cite the one report. “There were pieces of chads found on the floor,” he adds.
Olson further argues that due process will be violated, because there does not exist enough time to properly adjudicate the matter, because “the electors have to be selected and cast their ballots on November eighteenth.” *
“Unless there are standards,” Olson warns, “the votes of the plaintiffs may be evaluated differently by individuals who don’t have any constraints on their exercise of that discretion and may have some reason to wish it to come out a certain way.” Again, there is no mention of any Bush desire to have the hand-counted Seminole County ballots reconsidered. “The process, to sum it up, is selective, standardless, subjective, unreliable, and inevitably biased because people who have interests in the outcome of the election are making subjective judgments.”
Now it’s Tribe and Rogow’s turn.
Tribe has spent the weekend submerging himself in it all, talking to friends and former students, faxing and reading and thinking. And then, Sunday night, a walk around the hotel swimming pool with his wife, off whom he bounces ideas.
“Mr. Olson has spent a lot of time on the merits of his argument, but what he forgets is that he’s here on the question of whether or not a preliminary injunction should be issued,” Tribe says. “All of this discussion about chads and how the system operates is interesting, but the truth is, he’s put the chad before the horse.
“What counts is, does he have a case that says that a canvassing board using the Florida statutes is violating the Constitution?”
Middlebrooks interrupts. Having watched Palm Beach County’s hand recount the day before, “it does seem like the rules in terms of what was penetration were changing some. Sometimes it was if you see a square through the light, and sometimes three corners…. It doesn’t seem like a very clear process. Can you tell me something about that?”
Rogow brandishes a ballot.“I don’t have one of those punchers with me, but if the court simply takes a paperclip and unwinds it and punches out a corner, you will be able to see that sometimes one would punch one corner, the other three corners
would be connected. But when you punch out that one corner, you have penetrated the card, and therefore you have voted. And that is all that that process seeks to do, to make that determination.
“There is not an issue here of people fooling with these cards or making determinations with these cards that are partisan in any way….Not only do you have observers from each party and you have people from the supervisor of elections’ office, but the press is there.” At least in part thanks to Middlebrooks, one might observe.
“How can there be irreparable injury in the public knowing what the outcome of the recount is?” Rogow asks. “They make the argument—and this I thought was quite startling—that somehow or other the public knowing… the result of the election may not have been for Governor Bush, but may have been for Vice President Gore, that somehow or other if that result is known, that will harm the nation’s psyche.
“Is it messy?” Rogow asks. “Does it go on and on in some fashion? Yes, it does, but that’s what democracy is about.”
Rogow cites the Beckstrom Florida Supreme Court case, which holds that if a circuit court finds that an election has been held, and the result is such that there’s reasonable doubt as to whether the will of the voters has been expressed, the court can call for a new election if it wants. *
“All right,” Middlebrooks says. “Tell me two things. First, articulate the standard Palm Beach County is using to check these ballots.”
“The standard is—and they use these words, I don’t like them, but they are the words they use—if it’s a hanging chad, if it’s a swinging chad, if it’s a tri… then that is counted as a vote. Pregnancy does not count in Palm Beach County; only penetration counts in Palm Beach County.”
The courtroom laughs.
“All right,” Middlebrooks says. “I had a second question, but I think you caused me to forget it.”
So this is what hell looks like.
In Palm Beach County circuit courtroom 4-C, before Judge Stephen Rapp, the lawyers are stacked in the jury box and wedged ass-to-ass in the first three rows of the gallery, five thick, ten deep, as crowded and nearly as unruly as the mosh pit at a Nine Inch Nails concert.
Al Gore may have put the butterfly ballot revote deal on hold for the time being, but eighteen plaintiffs and their lawyers haven’t. Chief Judge Walter Colbath of the fifteenth circuit in Florida has consolidated the suits. In a way, it’s not fair to lump them all together. Some of the plaintiffs are simply political plants. But others have genuinely moving stories, like those of Florence and Alex Zoltowsky, seventy and seventy-five, both of whom are Holocaust survivors. Florence spent two years in an underground cave hiding from the Nazis, while Alex survived a Polish concentration camp. The right to vote is paramount to them, they say. And the very idea that they cast their votes for Buchanan horrifying.
Then there are others, less compelling, attorney Henry Handler first and foremost among them. Handler, the County Democratic Executive Committee chairman from 1984 to 1986, filed the very first lawsuit, on behalf of that chronic man-in-the-middle Andre Fladell, Delray Beach commissioner Alberta McCarthy, and African-American community activist Lillian Gaines. Handler did this even though Gore attorney Mitch Berger repeatedly called him and beseeched him not to, arguing that he would end up hurting Gore’s recount campaign and even a possible butterfly ballot legal challenge down the road. That didn’t matter to Handler.
Bush lawyer Barry Richard is sitting at his desk in Tallahassee, participating by speakerphone. He says that the judge doesn’t have the authority to grant a revote, that the venue should be moved to Tallahassee. Even if both of those requests are denied, Richard says, the court needs to allow a little more time before it all begins, so he can review evidence and depose witnesses and otherwise do this thing right.
But before Judge Rapp—a Republican appointed by former governor Martinez, nicknamed “Maximum Rapp” for his proclivity for tough sentences—can even commence, Handler steps forward with two affidavits. He wants Rapp to recuse himself.
According to the affidavits, attorney Joseph Thillman says that on Election Day he overheard Rapp in a courthouse elevator dissing Hillary Rodham Clinton and saying that he voted to “make sure the Democrats are run out of the White House.” Another lawyer, Harry Winderman, claims that at 8:20 A.M. on November 8, he heard Rapp say from the bench that any voter who was confused by the butterfly ballot was “stupid” and did not deserve the right to vote.
Rapp takes a forty-minute break to consider Handler’s motion. When he returns, he denies the claims but recuses himself. The case is going to be reassigned to circuit judge Catherine Brunson, he says.
But Brunson will recuse herself because one of the attorneys in the courtroom recently worked for her husband. Judge Edward Fine will recuse himself because last week one of the attorneys asked his advice in seeking a judge’s recusal. Judge Thomas Barkdull III will recuse himself because his dad represents Butterworth. Judge Peter Blanc will recuse himself because two of the lawyers served as treasurers on his reelection campaign. And Chief Judge Colbath will recuse himself—claiming he was given the case accidentally. Judge Jorge LaBarga will be given the case. But he’s away at lunch.
As he sits at his desk in Tallahassee doing some other work, Richard is somewhat amused as one after another judge recuses himself. In the coming days, he’ll start to doubt that all those judges had personal involvements that in any other circumstance would require recusal. Richard will think that their revolving-door recusals may have been motivated by the simple fact that the butterfly ballot’s a highly charged issue, one that they don’t want to get involved with. A Democrat more partisan than Richard might add that finding a judge who’d risk displeasing Jeb would be pretty unusual.
The case before Middlebrooks continues.
Tribe offers a lengthy discourse. Providing Florida’s first touch of shameless O.J.-ness, Harvard professor Alan Dershowitz makes a cameo on behalf of some voter or something. The canvassing boards’ lawyers stand and briefly speak.
“We heard references to the manual recount in Texas,” Olson says. “The Texas provision, which has been mentioned for obvious reasons, has a list of very specific standards. The ballot may not—and this is in the statute to control the discretion of the official—the ballot may not be counted unless at least two corners of the chad are detached; light is visible through the hole; an indentation on the chad in the stylus; etc., etc., I’m not going to go through all of the details with respect to it. But that is an example of an effort by the state to articulate clearly standards by which individual judgment can be exercised in very specific limited situations.”
“Boy, that’s disingenuous,” Rogow thinks, surprised, as he hears Olson’s “etc., etc.” He leans over to Tribe and makes a comment about it. That kind of footwork might be common in politics, but it’s not supposed to be that way in law.
Rogow’s right; it’s one of the more dishonest bits of lawyering in a scandal with more than its share coming full tilt from every side. The provisions Olson’s leaving out are the full sentence of (3) which is “an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote.” And, most notably, the big one Olson is just too busy to mention is Texas’s fourth possible way to assess that an incompletely punched ballot is a vote, that “(4) the chad reflects by other means a clearly ascertainable intent of the voter to vote.”
In other words, essentially the same subjective standard that Florida has as well. But Ted Olson isn’t going to let anyone know this. And the Democrats don’t have a rebuttal, so nobody can correct him.
Warren Christopher is perpetually dour. But when he emerges from Katherine Harris’s office Monday morning, he looks like he’s been sucking on an extra-strength lemon. He reports that Harris plans on certifying the election, as mandated that she “may” do if she so chooses, tomorrow, Tuesday, at 5 P.M. He’s one big tsk-tsk.
Isn’t she just follow
ing the law? he is asked.
“We believe not,” says Christopher. “We think it is arbitrary and unreasonable. She has discretion under the statute, and she’s declined to exercise the circumstance, even though it can be exercised, according to her, if there’s a hurricane. Isn’t it a strange situation where she would exercise discretion in other situations, but not where the presidency of the United States is at stake?”
Asked to characterize the meeting, Christopher says that “she said that the local boards have to certify by five o’clock tomorrow. So whatever they certify is what she will count and nothing thereafter.”
This is one pissed-off old man.
Middlebrooks doesn’t take long to slap down Olson and the Bushies.
“The state election scheme is reasonable and nondiscriminatory on its face,” he rules. He says that there’s nothing wrong with hand recount, that “the manual recount provision is intended to safeguard the integrity and reliability of the electoral process.” Yes, canvassing board members get to make judgments, but, “while discretionary in its application, the provision is not wholly standardless. Rather, the central purpose of the scheme, as evidenced by its plain language, is to remedy ‘an error in the vote tabulation which could affect the outcome of the election.’… In this pursuit, the provision strives to strengthen rather than dilute the right way to vote by securing, as near as humanly possible, an accurate and true reflection of the will of the electorate.
“Unless and until each electoral county in the United States uses the exact same automatic tabulation (and even then, there may be system malfunctions and alike),” Middlebrooks continues, “there will be tabulating discrepancies depending on the method of tabulation. Rather than a sign of weakness of constitutional injury, some solace can be taken in the fact that no one centralized body or person can control the tabulation of an entire statewide or national election.” Indeed, the more boards and individuals involved, Middlebrooks implies, the less likely anyone can steal an election.