by Jake Tapper
Just as Gore seems to ooze insincerity, Bush seems nervous, twitchy, in hopelessly over his head. Neither of these guys’ public appearances seems to do much to reassure anyone; in fact, they explain why this was a tie.
“As we work to conclude this election, we should be guided by three principles: this process must be fair, this process must be accurate, and this process must be final,” Bush says. Fairness means no more counting. Accuracy means that hand counts can’t be used. Final means Friday at midnight, when the overseas absentee ballots are due. He also offers the obligatory whack at hand recounts. “As Americans have watched on television, they have seen for themselves that manual counting, with individuals making subjective decisions about voter intent, introduces human error and politics into the vote-counting process.”
Throughout the election, Gore got called on his various fibs and demagogueries, as he should have. Some of the things he said were outrageous—hinting that there was something benignly racist about Bill Bradley’s health-care proposal immediately comes to mind. But Bush seems to get away with his rank hypocrisies. I have no idea why. How can he keep slamming the very notion of hand recounts when Texas has one of the most liberal hand-recount laws in the nation, thanks in no small part to him?
Then there’s the complete disingenuousness of the Democrats’ “count every vote” call. Which to some doesn’t even make sense. Michael Carvin, down in Florida at Ginsberg’s request, is confused about the Democrats’ strategy.
He sees Gore speak, hears him talk about a statewide recount. As a strategy, that makes sense to Carvin. There’s no way the Democrats can be under the impression that they’ll be able to pursue undervotes in four Democratic-leaning counties, have those votes propel Gore to a victory, without the Bushies arguing that the entire state’s undervotes need to be looked at. Is there?
Then he watches Christopher and Boies on TV, talking about how they are going to ask the Florida supreme court to set a standard for the whole state. This, too, makes some sense. There needs to be a statewide standard or—as the Bushies argued in the Middlebrooks brief on Monday—there might be some equal-protection arguments they could utilize against them in the U.S. Supreme Court. This is a rather sophisticated approach, Carvin thinks, but it’s reasonable. They realize that if they want four counties’ undervotes looked at, they’ll have to accept a statewide count, which will take some time. So they’re going to take the PR hit, allow Bush to be certified the winner after the absentee ballots are counted, and they’re setting the stage for the contest provision, which will obviously take some time.
But then the Democrats don’t file anything.
What are they doing? Carvin thinks.
The Dems’ calculation isn’t all that complicated, actually. They’re aware of a few harsh realities: for Bush to be certified the winner will be a PR disaster; privately Democrats on the Hill are already starting to peel off. When will this end? they ask. Gore’s poll numbers are starting to erode. Additionally, the legal burden in a contest is much greater. One has to argue against a certified result, the burden of proof is much tougher, and the fight takes place in courtrooms instead of before canvassing boards. So the Gorebies decide to ride the protest phase as far as it can get them, so they can enter the contest phase in the strongest possible position. Let’s keep the hand recounts going, they’ve decided, and then we’ll see what happens. The hope, of course, is that there will be enough Gore votes in Broward, Miami, and Palm Beach to dispense with Bush’s 300-vote margin of victory. Then the onus becomes Bush’s. Then Bush has to contest the election. Then Bush has to explain to the world why he’s being such a crybaby.
Yep, the Gorebies figure, the better thing to do is put off the certification, get the votes counted, and take it from there.
LePore calls the Palm Beach field office of the Florida Department of Law Enforcement to let the fuzz know about an item for sale on eBay that she will not stand for. The wife of her computer guy buys antiques on eBay, and she noticed that someone calling himself Mark Bruce is selling a Votomatic, complete with butterfly ballot, for two grand.
She prints it out, and her husband gives it to LePore, who calls the cops.
Special Agent John Marinello e-mails “Bruce,” who now says he wants $20,000. Marinello agrees, and at about 5 P.M., some undercover Florida Department of Law Enforcement officers go to the corner of Lantana Road and Military Trail to meet the millennial Butch and Sundance and talk turkey. They finally agree to $4,000; the cuffs come out.
“Mark Bruce” turns out to be Mark Bruce Richter, forty, a Lake Worth, Florida, schemer. It’s a brilliant alias, as befitting the man who came up with the perfect crime. His partner is Steven Solomon. Under interrogation, the two reveal that the Votomatic was left behind at the Winston Trails Club House. They’re booked for dealing in stolen property and unlawful possession of a voting machine—the latter of which is a felony. Solomon also gets the nice added charge of possession of a firearm in the commission of a felony, since he had a .40-caliber Smith and Wesson semiautomatic pistol in his fannypack.
It’s a tough competition, but even after another month of this chaos, no one will beat Richter and Solomon for the title of Sorriest Losers in this whole grim affair.
In Palm Beach, Mark Steitz and Jeff Yarborough have been crunching numbers for Gore.
Undervotes in Palm Beach: 10,582. In Miami-Dade: 10,815. In Broward: 6,686.
If one assumes a 12 percent “revival” rate on these undervotes, that means that there are 1,269 uncounted votes in Palm Beach, 1,297 in Miami-Dade, and 802 in Broward.
Applying the proportion of the vote that Gore and Bush got in each county—64 percent to 36 percent in Palm Beach, 53 percent to 47 percent in Miami-Dade, 69 percent to 31 percent in Broward, that means the following number of net Gore votes as yet uncounted: 730.
Other charts are assembled, with other revival rates—10 percent, 14 percent—and other proportions of Gore votes, if one assumes that those who undervote are slightly more Democratic, as they tend to be minority or elderly or inexperienced voters. Crunching these numbers, the net Gore votes range anywhere from 615 to 1,175. The Gorebies think that the Bushies are crunching these numbers as well—which is why they’re doing everything they can to stop the process.
Patrick McManus, the mayor of what was once punch-card ballotville, Lynn, Massachusetts—with eighteen recounts in twenty years, ’til the secretary of state phased cards out in ’98—has been down in Palm Beach since Monday, with a group of about a dozen others. He, of course, knows Whouley and Newman and Corrigan and the rest. McManus, a CPA and a lawyer, knows these machines, knows that as they get older, they’re tougher to vote with. The rubber on the base of the machine breaks down, ending up with incompletely punched-out ballots. So McManus believes that Palm Beach County’s revival rate should be much higher. They should pick up anywhere from 200 to 500 votes in Palm Beach, he thinks. If not more. If they used the Delahunt standard, it would be anywhere from 1,000 to 1,200.
“What would happen if we had a statewide recount?” Whouley asks.
It would depend on the standard, McManus says. And also it would depend on what ballots we’re looking at. You guys are just focused on the undervotes, but there are 22,000 overvotes in Duval County, mainly from black precincts. Sometimes there are votes that can be discerned in overvotes; for example, a voter might acknowledge that he mistakenly punched the ballot for more than one candidate and attempted to rectify the problem by marking in pen whom he wanted to vote for.
If we counted all the ballots though, Gore would win, McManus concludes. Using the “intent of the voter” standard, he’d win by maybe 20,000 or 30,000. Using the stricter standard they’re applying in Palm Beach, he would still win, but by maybe 2,000 or 3,000. But, he understands, the statutory deadline for calling for any more recounts has passed.
Whouley tells him to talk to Steitz.
Steitz at first worries that this is just some crackpot Whouley pawned off on
him. Soon he realizes that he’s not, that he knows what he’s talking about. Why don’t you let me put this in a spreadsheet for you? he asks McManus.
“Ah, you yuppies and your spreadsheets,” he says. He tells Steitz that if it were up to him, he’d push for a statewide recount. It would be a risk, but one worth taking.
More important, McManus doesn’t quite understand what’s going on with the stopping of the hand recounts, with the Republican challenges to the very notion of hand recounts. Hand recounts are totally normal. He thinks it inconceivable that there’s a presidential election being decided by a handful of votes, and the votes aren’t being recounted. The Republicans are mocking the notion of hand counting? This makes no sense to the mayor of Recount-land.
And as if things weren’t bad enough for LePore attorney Bruce Rogow, who thinks the hand recount should continue, he’s got Alan Dershowitz on the phone yapping at him.
You should tell your client to start counting, Dershowitz says, you’re going to cost Gore the election, you need to get her to start counting now, she shouldn’t pay attention to the secretary of state.
While Dershowitz is yelling at him, Rogow’s partner, Beverly Pough, starts waving to him.
“Warren Christopher!” she whispers, pointing to the phone. “Warren Christopher!”
Rogow hangs up on Dershowitz.
“Bruce, this is Warren Christopher,” Rogow hears from the other line. He thinks that’s odd. “Bruce”? He doesn’t know him well enough to call him “Bruce.” Doesn’t know him at all!
“Hello, Mr. Christopher,” Rogow says.
“I want to thank you for everything you’re doing for us,” Christopher says, apparently referring to a brief Rogow filed for the Palm Beach canvassing board, asking the Florida Supremes to resolve the conflicting advice offered by Harris and Butterworth.
This offends Rogow.
You’ve got it all wrong, I’m not doing anything for you, Rogow says. I’m representing some other client.
Christopher seems to sense that he ruffled Rogow’s feathers, and he gets apologetic and diplomatic. But still, the message is: It would really help us if the count would begin.
It can’t begin until we hear from the Supreme Court of Florida, Rogow says. Which I think will be this afternoon. The Florida justices will want to step in here.
Christopher apologizes again, asks what Rogow’s views are on all of this. On the federal track, the Bushies have appealed Middlebrooks’s Monday ruling to the far more conservative Eleventh Circuit Court of Appeals in Atlanta. Christopher says that his people say that they don’t think the Eleventh Circuit will take it up.
Rogow doesn’t know about that. There are a few justices on that twelve-judge bench whom the Gorebies better be wary of, he says. My views are that you’ve got to watch out for the Eleventh Circuit and the U.S. Supreme Court, because that’s where the Republicans want to be, Rogow says. You need to be in the Supreme Court of Florida, and that’s where I’ve put this now.
The call ends. Rogow considers the whole thing to have been entirely inappropriate.
Hearing that Harris has asked the Florida Supremes to consolidate all the cases, Bush legal chieftain Ginsberg calls Joe Klock to tell him that the Bushies are not happy. If the Florida Supreme Court takes the case, then Gore will be playing on a Democratic field, Ginsberg says. The Bush team wants to play this game in Atlanta, at the Eleventh Circuit, or in D.C., with the SCOTUS (Supreme Court of the United States). But not here, in Tallahassee, with an all Democrat-appointee court.
This is where you want to feel sorry for Klock and his client. It isn’t like Klock hasn’t been trying to steer the secretary of state down what he thinks is a safe path. He had told Harris that there was no basis in Florida election law to allow hand recounts because of voter error. But by consolidating the cases, at least, if there is a hand recount, it can be statewide, with one uniform standard for the ballot.
Of course, that’s not what Klock wants to have happen. His concern is more with all the people who voted correctly, not the ones who didn’t. The way Klock sees it, the Democrats are maneuvering any way possible to get Gore more votes than Bush. The instructions were quite clear, he says:
AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.
If the Bush folks are turning on Harris over this, then she’s really going to be without friends. What Strep Throat and left-leaning pundits and Leno and Letterman are doing to her is fairly cruel, slamming her appearance and constantly ridiculing her heavy layers of makeup. Even the Washington Post—the paper of Woodward, Bradlee, and Bernstein—writes about her in ways that seem not only mean but even obsessive: “Her lips were overdrawn with berry-red lipstick—the creamy sort that smears all over a coffee cup and leaves smudges on a shirt collar. Her skin had been plastered and powdered to the texture of pre-war walls in need of a skim coat. And her eyes, rimmed in liner and frosted with blue shadow, bore the telltale homogeneous spikes of false eyelashes. Caterpillars seemed to rise and fall with every bat of her eyelid, with every downward glance to double check—before reading—her latest ‘determination.’
“One wonders how this Republican woman, who can’t even use restraint when she’s wielding a mascara wand, will manage to… make sound decisions.”
Meow.
But it’s tough to muster an iota of pity for Harris. It’s hard to feel bad for a woman who feels the necessity to block votes from being counted every step of the way, who’s being sued by Judge McDermott, a Republican, for what he views as disenfranchisement. There are 175,000 ballots—undervotes and overvotes—that Florida vote-tabulation machines did not read. Certainly some of these folks found the Gore-Bush choice untenable and opted for no one, and surely a lot of these people fucked up their ballots with incompetent voting, and that’s too bad. But it’s also pretty clear that there are at least some votes in there, some Floridians who had a choice that wasn’t recorded. Considering that Bush’s presidency comes down to a 300-vote margin of victory, how can the country ever feel confident about who actually got more votes if we don’t look at them? Harris wants the world to feel bad for her, wants the world to understand that she’s just doing her job. But then she turns around and does exactly what Bush would want her to, gumming up the works as much as possible. Maybe Stipanovich isn’t telling her what to do, as coordinated with the Bush team. But it almost doesn’t matter—she’s on their program with or without instructions. From almost any angle, her behavior is outrageous. Yes, the Gorebies’ ploy to look for votes only in three Democratic counties is disingenuous. Gore’s “offer” the night before for a statewide recount had a real used car–salesman feel to it. Both sides are plotting, and neither is behaving as if they truly want a fair fight. It may well be that the biggest difference between Bush and Gore at this point is that Bush has a Katherine Harris, and Gore doesn’t.
In any case, this one move to take the matter to the Florida Supreme Court will be the first, last, and only time that Harris does anything that isn’t completely in George W. Bush’s best interests. It also happens to be the last decision Harris makes without the guidance of Stipanovich.
On Friday, November 17, everybody’s wondering what the Florida Supreme Court will do. The Gorebies have appealed Lewis’s ruling that Harris acted within her discretion, and Palm Beach has appealed LaBarga’s ruling on hand recounts, which involves both whether to count and the chad standard.
I’m an impatient man, so I call former Florida Supreme Court justice Gerald Kogan to see what he thinks.
A registered Democrat first appointed to the bench in 1987 by then-governor Bob Martinez, a Republican, Kogan says that in his personal opinion, “any recounts [that] registrars feel are necessary to get an accurate tabulation certainly should prevail.” This isn’t politics, he explains, it’s Florida law. Of course it’s Florida law as interpreted by the state Supreme Court, which is
thought to lean left. The late Gov. Lawton Chiles, a Democrat, appointed six of the court’s seven justices, and the seventh was appointed by then-governor (now senator) Bob Graham, also a Democrat.
Not everyone would agree with Kogan. Barry Richard has already said that the Florida Supreme Court “has no jurisdiction. If the supreme court should determine that it has jurisdiction, I think it will have to do so by recognizing a source of jurisdiction that it has never heretofore recognized….The parties cannot confer jurisdiction on the supreme court by compromise or by agreement. The supreme court’s jurisdiction is clearly set forth in the Florida Constitution and it is very narrow.”
“I have to disagree with him on that point,” Kogan says. “I would think the supreme court can have jurisdiction whenever and wherever it says it has jurisdiction.”
While I’m talking to Kogan on the phone, I get an e-mail alerting me that the Florida Supreme Court has rejected Harris’s requests that the hand recounts be stopped, and that the Gorebies’ and Palm Beach County cases be consolidated. The court will hear arguments on Monday about hand recounts. And: without anyone even asking them to, the seven justices prevent Katherine Harris from certifying the election tonight or tomorrow or until they say when.
Kogan couldn’t be less surprised.
To give you an idea of how competent Floridians are in general, you should know that after a heavy rain, there’s a flood in the parking lot of Palm Beach County’s Emergency Operations Center, which was opened in 1998 and activated for Hurricane Floyd.
LePore has arranged the counting for the command center, which looks like a cross between an amphitheater and a classroom, five tiers down to the front of the class, seats about 150. The count is finally—finally!—about to start Thursday night at 7:14 P.M., but the process is hobbled a tad since there’s a dearth of Republican counters, only enough to form thirteen counting teams instead of the planned thirty.