by Jake Tapper
In all the squabbles about recounts, Martinez knows his mission: to preserve the status quo. Martinez hasn’t been told to stop any further counting, to engage in delay tactics, to stall—he doesn’t have to be told.
Thus, he was delighted when the board chose to wait until today to hold its hearing on hand counting the 1 percent sample. Bush field director Ken Mehlman was especially happy. Though of the three southern Florida counties, Gore’s margin of victory in Miami-Dade was slimmest—roughly 53 percent to 47 percent—Mehlman’s concern is that there are a lot of undervotes—10,750. The Bushies don’t want those ballots counted by hand.
Over the weekend, Martinez and De Grandy got organized. Political consultant Al Lorenzo was hired to tell them just which precincts were what and why and whether their rates of undervote were normal. Martinez suspected that the Gorebies were going to challenge absentee ballots, so he contacted a private investigator, Hugh Cochran, a former G-man Martinez knew when he was U.S. attorney. You never know when a bit of information about something—or someone—might be useful.
Nevertheless, on Tuesday morning, Martinez remains concerned about the potential legal might of his Democratic rivals. In fact, he’s more concerned than ever, because he hears that last night, David Boies flew in to Tallahassee to join the Gore team.
David Boies flew in last night because on Monday, Ron Klain asked former solicitor general Walter Dellinger, “Who is the best lawyer in the country that we don’t have working on this case?” and Dellinger gave two names: Boies and Joel Klein, both of whom worked on the antitrust suit against Microsoft. Klein was unreachable, Boies not so.
Not that he wasn’t busy. As America’s hottest lawyer, Boies was in Manhattan meeting with executives from Philip Morris in the conference room of the Lexington Avenue office of Boies, Schiller & Flexner when Dellinger called. Before he could be given the message, Boies—who is known to say, “Would you rather sleep or win?”—had already zipped over to the office of another client, Manhattan developer Sheldon Solow, for whom he won an $11.5 million judgment in 1999. At Solow’s office, he got Dellinger’s message, which was marked “Important.”
Boies called Dellinger, a friend from Yale Law School days and on various legal stuff. What’s up? he asked.
As you’re probably aware, there’s this recount issue going on down in Florida, Dellinger said. He conference-called Klain in, and Klain gave the basic 411, asked if Boies could come down to help out for a few days.
“When do you want me there?” Boies asked. “As fast as possible,” Klain said, as they might be going to the Florida Supreme Court the next day.
Boies called his son, Jonathan, a lawyer at his firm, and had him prepare a packet of information gleaned from Lexis-Nexis and the Internet. He had a charter plane arranged to take him from Teterborough Airport, across the river in New Jersey, to Florida and proceeded to take two more meetings — with clients from Calvin Klein and from Napster—before heading to the airport, where Jonathan’s research was waiting for him. He arrived in Tallahassee around midnight, cabbed it to the Governor’s Inn, met Klain, walked over to Mitchell Berger’s offices. The only one on the team he knew was Warren Christopher, since they’d both done some work for IBM in the 1970s, as well as the fact that they were both alumni of the University of Redlands.
Tuesday night I catch my first glimpse of Boies when I stumble in to the Governor’s Inn, where The Flag is staying and where my glorious office assistant had managed to secure me a room. It’s late, and he’s doing a TV interview. Such is Boies. The camera loves him, and it is not an unrequited love. Boies is an intriguing figure, brilliant, nice, rumpled, pock-marked, mussed, with cheap suits and Rockport shoes and a $29.95 Casio watch oddly wrapped around the outside of his shirt.
He has represented radio talk-show host Don Imus, comedian Garry Shandling, and Yankees owner George Steinbrenner. In 1997, he left big-time law firm Cravath, Swaine & Moore to start his own firm, and in 1999, National Law Journal named him “Lawyer of the Year,” and the reporter who wrote the story—calling him “the Michael Jordan of the courtroom”—is now following him around working on his biography. Largely this is due to his last case. Just as Ted Olson is Bill Clinton’s legal nemesis, Boies is Bill Gates’s.
And to hear his best friend, James Fox Miller, tell it, he always knew that Boies was headed in this direction. Miller’s a past president of the Florida bar, and he’s more than willing to tell me all about his buddy. As able as Boies is, Miller’s hyperbole strains credibility. But he’s only slightly less hypey than the rest of the media is being with news of Boies’s arrival.
Boies has been Miller’s best friend since four days into Northwestern Law School in 1962, he tells me. Bearing in mind that Boies has been married three times, Miller says that he “probably know[s] him better than anybody in the world.” “He’s the best legal mind I know,” Miller tells me. “He can simplify complex legal and factual issues better than anyone I know. He can grasp the basics and the nuances of law to which he has never been exposed. He’s the quickest study of any mind I have ever seen anywhere.”As if his legend needed any more mythology, Boies also is dyslexic—the reason that his brain has worked so hard on overdrive to overcompensate in other areas, like his photographic memory. But no one considers his dyslexia to be anything but interesting color in his profiles. Certainly not Miller. “When Vice President Gore hired David Boies, he maximized his chances of success,”Miller says.
But what of the fact that Boies isn’t an expert on election law, certainly not on Florida election law? No problem, Miller says. When Boies was hired by CBS to defend the network against libel charges by Gen. William West-moreland, Boies had never done a libel case before. But by the end of it, he was the no. 1 libel lawyer in the country, Miller replies. When Klein at the Justice Department brought Boies in to help them fell Gates and Microsoft, “he’d never even turned on a computer,” Miller says.
Clearly Miller seems to hold Boies in a kind of awe usually reserved in times past for emperors. And it’s been this way since that first week at Northwestern. Professors held him in such regard, Miller says, that one told him, “He is teaching the faculty, we’re not teaching him.” (Well, not every professor; Boies later had to transfer to Yale after he had an affair with a professor’s wife, a woman who became wife no. 2.) But Boies does have his detractors. During the Microsoft case, Gates attacked him personally, saying Boies was “out to destroy Microsoft… and make us look bad.” Robert Levy, a senior fellow in constitutional studies at the libertarian Cato Institute, says that Boies’s Microsoft arguments were over the top for the benefit of the cameras. “The case played to the media. It didn’t focus on substantive legal issues, but instead emphasized the ridicule of both the company and Bill Gates in particular.”
When I ask his best friend about Levy’s criticism, Miller says that playing to the media may have been the only way to win the Microsoft case. And Boies can hardly be faulted for pursuing a legal plan that worked, at least in the short term.
But last night I did wonder what Boies was doing gingerly, leisurely talking to David Bloom of NBC while Rome burned. *
On Tuesday morning, Martinez and De Grandy face off against Coffey and Democratic trial lawyer Steve Zack before the Miami-Dade canvassing board: King, Leahy, and circuit court judge Myriam Lehr. (Lehr was assigned to the board when every single commissioner recused himself or herself due to involvement one way or another with a race on the November ballot.) They’re there to debate a motion from county Democratic chair Joe Geller, that Miami-Dade should conduct the “1 percent” recount of the county’s ballots, as well as inspect the 10,417 undervotes.
On Election Night, Zack had been asked by Gore lawyer Chris Koch to come on board, but he’d turned him down, saying he was too busy with an HMO trial. But Zack was intrigued by the Middlebrooks case, primarily since two of his University of Florida buddies were there—both Middlebrooks and Tallahassee attorney Steve Uhlfelder, who was arguing in
favor of cameras in the courtroom on behalf of ABC. So Zack had ducked in to see the trial, whereupon Coffey asked him to help him argue the recount today.
Zack’s no great legal mind, but he’s a skilled trial attorney, full of rhetoric and histrionics, which he often uses effectively. Zack begins by discussing the seal of the Florida Supreme Court: its motto, Sat Cito Si Recte, “soon enough, if done rightly”; the goddess of justice, “which is blindfolded to symbolize the impartiality of the law,” and the eagle, “which has been interpreted as the power of justice ruling the world.” Zack’s description of the motto is cribbed, nearly verbatim, from the Florida Supreme Court’s Web site. He talks about Middlebrooks. He talks about Profiles in Courage. He quotes Will Rogers.
“May I ask a question?” Judge Lehr interrupts. “Which three precincts?”
They are precincts 103, 203, and 234—astronomically Democratic precincts, two largely black and Hispanic (though not Cuban) and one largely Jewish and elderly.
Martinez is called to speak. He refers to a document provided him by the Bushies, the testimony of the former director of elections for the state of Oregon, who says that the more you handle ballots, the more “their quality as evidence of the voters’ original intent is degraded.”
Lehr, flipping through the copy of the document that’s been provided by Martinez, jumps in again. “Mr. Martinez, I apologize, what page are you on?”
Page four, paragraph six, Martinez says.
“Page four is missing,” Leahy says.
“That’s a major oversight,” Martinez says, but continues. He argues that there has been no error in vote tabulation. He quotes Florida statute Broward v. Hogan * and Katherine Harris. Martinez also offers a touch of rhetorical panache; not quite Zack-level, but close. “Ours is a country of laws,” he muses.“It is a country that is governed by the rule of law. That is a term that this area in particular has heard quite a bit in the last year. We must respect and follow the rule of law. There are many people in this country—and in this area in particular—that come here because our system of government follows the rule of law, and they have escaped those systems of government where the governmental officials act arbitrarily.”
There is more than a touch of Emma Lazarus underlining Martinez’s comments. Both elected officials on the board—Judges King and Lehr—were elected with significant support from the Cuban-American community. Both retain the services of Armando Gutierrez—politico and spokesman for Elián’s Miami relatives. Martinez is sending a message.
Coffey rebuts some of the arguments about ballots being degraded in the process. Zack says that Hogan doesn’t apply until the board makes a decision. He quotes Dickens and, again, Middlebrooks. “You know, I was thinking about how prophetic the movie 2001 was,” Zack rambles.“When I saw it, it was 1960-something. It’s now 2001. † And in 2001, a computer called Hal controlled our lives. Not individuals. Computers still in this century hopefully will not control our lives.
“You know, Bob Martinez is a very good friend of mine,” he continues, as those listening strain to understand where he’s going.“He came from Cuba in the sixties, and I did, too. I was born in the United States, but my grandfather is Cuban, and my mother is Cuban.” (After Zack was born in the United States, his family moved to Cuba, and then he returned to the States in 1961.) “My grandfather was a refugee for the second time in his life. He had come from Russia to Cuba in the early 1900s to avoid oppression. He was obviously very, very upset having to leave Cuba, as was my mother, and I remember his words, and I asked him how he was feeling.
“He said, ‘You know, it’s a horrible thing to be a refugee twice in your life. I take solace in one thing, that I’m going to America. I know I will never be a refugee again, because I know that if America falls, there will be no place to go.’
“And I know that he never heard of Thomas Paine at that time before he died or at any other time. But had he, he would have stated the same thing Thomas Paine said when they founded this nation. That is, the right of voting for the representatives is the primary right by which all other rights are protected. All we are asking you today is to protect that right.”
All three members of the canvassing board vote to do the 1 percent hand recount.
About eight years ago, circuit court judge Terry Lewis, appointed to the bench in ’97 by Chiles, finished off a junky mystery novel and thought, “They actually paid this person? They actually spent money to publish it? I really think I could write something as good as that.” Five years later, a small publishing house published his magnum opus, Conflict of Interest, a decent thriller about Teddy Stevens, an alcoholic Tallahassee attorney assigned to defend a young black kid for murdering a woman with whom Stevens secretly had an affair.
Katherine Harris’s conflict of interest in the decision before Lewis is a little less steamy, but a lot more consequential.
Some in the Bush camp are worried about Lewis. He’s a registered Democrat, and the last time he was asked to issue an injunction this weighty was in July 1999, minutes after a Jeb-backed law took effect that would require abortion providers to notify a minor’s parents forty-eight hours before the procedure was performed. Lewis granted the temporary injunction almost immediately, based on state constitutional privacy issues, and in May 2000 he ruled that the law was “exactly the kind of government interference into personal, intimate decisions that the privacy clause protects against.”
Bush attorney Barry Richard gives the team his take on Lewis, as he’ll do for every Florida judge. He thinks Lewis is intellectually one of the most competent judges on bench anywhere, an independent judge who presides over a good courtroom. He and Lewis like each other’s styles: just as Lewis appreciates the fact that Richard will acknowledge weaknesses in his case, thus earning credibility, Richard likes the fact that Lewis gets to the meat of the matter right away in his questions, zeroing in on the core issues right off the bat. He tells his colleagues not to worry.
True to his Solomonic reputation, shortly after noon Lewis issues an “order granting in part and denying in part” Volusia’s motion for the temporary restraining order.“I give great deference to the interpretation by the secretary of the election laws, and I agree that the canvassing boards must file their returns by five o’clock P.M. today,” he says. “I disagree, however, that the secretary is required to ignore any late filed returns absent an Act of God.”
Lewis points out that the hand-recount provision in state law exists for a reason. If Harris weren’t meant to accept any hand recounts, that would mean that the law were valid “only in sparsely populated counties,” where such recounts can be completed by the deadline mandated for seven days after the election. “Just common sense tells you that if you have discretion, you can’t decide ahead of time what the possibilities might be that a canvassing board can’t get the results in,” he thinks. You have to at least hear the reasons why.
“That the secretary may ignore late filed returns necessarily means that the secretary does not have to ignore such returns,” Lewis rules.“It is, as the secretary acknowledges, within her discretion. To determine ahead of time that such returns will be ignored, however, unless caused by some Act of God, is not the exercise of discretion. It is the abdication of discretion.
“If the returns are received from a county at 5:05 P.M. on November 14, 2000, should the results be ignored? What about fifteen minutes? An hour? What if there was an electrical power outage? Some other malfunction of the transmitting equipment?… Obviously the list of scenarios is almost endless…. The secretary may, and should, consider all of the facts and circumstances.”
That said, Lewis doesn’t really get why anybody’s putting up a fuss about the certification deadline. The law provides for anyone to contest the election. And since one reason for such a challenge is the “rejection of a number of legal votes sufficient to change or place in doubt the result of the election,” it would seem that the canvassing boards can go ahead and count and, once complete
d, contest the certified results. Or Gore can. Or the guy in the street can.
So yes, the deadline stands, Lewis says. But it is “ordered and adjudged that the secretary of state is directed to withhold determination as to whether or not to ignore late filed returns… until due consideration of all relevant facts and circumstances consistent with the sound exercise of discretion.”
Harris is no longer only using Kearney. The secretary of state’s office has officially retained Joe Klock of Steel Hector & Davis, a firm with a Democratic history, where Janet Reno once practiced law. When Harris hears of Lewis’s ruling, she decides to go ahead and certify tonight. But Kearney and Klock caution her otherwise. This is a legal order, they tell her. The judge is ordering you to consider reasons for returns filed late. They recommend that she at least take a breath.
In Tallahassee, in Courtroom 3-D at the Leon County Courthouse, GOP attorney George Meros is vigorously objecting. And in his objection, and perhaps as well in his subsequent bout with laryngitis, there lies a symbol of the bipartisan nonsense playing out in Florida.
Elections supervisor Ion Sancho, a forty-nine-year-old Democrat, has called a special meeting of the county canvassing board. Since Election Day, twelve absentee ballots had turned up, and Sancho wants them included in the county tally before the 5 P.M. deadline.
Since Leon County had gone for Vice President Al Gore over Gov. George W. Bush 60 percent to 40 percent, Meros, a Tallahassee attorney representing Bush, clearly thinks the twelve absentee ballots would favor Gore by a similar ratio. So he tries to have them scrapped.