Down & Dirty

by Jake Tapper

  Wallace wanders through the room, studying everything, focused. The aisles are packed, so Wallace clears the way for a man carrying ballot boxes.

  “Don’t want to be dropping ballots!” Wallace chortles.

  LePore is diligent with the ballots as she hands them out to teams. One counter’s pen is accidentally brandished within striking distance of a ballot. “Don’t touch it with the pen!” she says excitedly.

  “Remember to look on both sides,” Burton says. He reminds them to follow the standard Broward County has adopted—count it as a ballot if it’s punched through, hanging chad and dimples are to be examined by the canvassing board. “There’s no need for a debate,” Burton says. “If they say questionable, just put it in there, and we’ll take care of it later.”

  Wallace objects. “We are precipitously adopting a standard on the very night we start counting,” he complains.

  Burton says to chill. The standard on “questionables” will come later, “when we’re sitting together and your chin is once again placed on my shoulder.”

  In Broward County, GOP delay tactics are pissing off the entire canvassing board, even Republican Jane Carroll. A lawsuit from four Republican voters forces subpoenas upon all three of them.

  They can’t analyze disputed ballots themselves while they’re in court, but Lee deputizes another judge to at least supervise the larger hand count while the three go trudging off from the Emergency Operations Center in Plantation to Judge Leonard Stafford’s courtroom in downtown Fort Lauderdale, half an hour away. When they arrive, Stafford tells them they can go back.

  On their drives back to Plantation, Gunzburger and Carroll receive word via cell phones that Stafford had ordered them to return to the courtroom.

  Lee doesn’t have a cell phone, so he gets no such notice. Which is just as well, because when Carroll and Gunzburger return to Stafford’s courtroom, it turns out that he hadn’t ordered them back at all. Carroll’s attorney, Sam Gorman, finds out that the attorney who spread the word that Judge Stafford wanted them back is a member of the law firm run by local GOP bigwig attorney William Scherer. Scherer has certainly been on the Bush program of stalling the count before, in arguments before the board. But this is something else entirely—Gorman, livid, wants to initiate disciplinary proceedings against the Scherer attorney before the Florida Bar for misrepresenting a judicial order.

  But Lee knows her and is sure that it was an honest mistake, and he talks Gorman down.

  On Friday, the count continues much as it did on Day One. Only this time, there are twenty-six teams of four, Republican counters having shown up in greater numbers.

  Outside, Republicans like Eskew are claiming that it’s chaos in the EOC, that chad are flying in a ballot bacchanal. “Mind reading is no way to decide the presidency—and neither is a stacked political deck,” he says.

  But neither of the sort is going on. No one’s reading minds—they’re assessing ballots, just as is done in Texas. And Burton and LePore are doing everything they can to be impartial—even Roberts seems a tad cowed. Burton thinks the GOP attempt to have her recused has shaken her into more of a semi-neutral stance.

  But Eskew wants the process discredited, so, as he did in South Carolina, unable to compete using the truth, he will look elsewhere for ammo.

  The most unfortunate incident of all comes at around 1 A.M. Thursday morning, when a senior citizen counter drops some ballots on the floor. Sheriff’s deputies and police officers move in to make sure no one touches them. Swarm! Swarm! An observer seated behind the counters lifts her feet so they don’t touch the ballots—though one deputy will later tell Burton that at least one ballot touched her foot. An observer will later estimate that it was only about five or six ballots that fell; Tucker Eskew will tell the press that it was twenty.

  The canvassing board discusses which pile the ballots belong in.“For the integrity of the process, you must recount this entire precinct,” Wallace says. Burton agrees. Lock ’em up and start the precinct again in the morning, he says.

  On Friday, November 17, as Broward County goes through a similar experience—the tedium of counting, the objections of Democrats to ballots not being counted as votes and of Republicans to other ballots being counted—the canvassing board in Miami-Dade County meets to decide if they want a similar fate.

  Coffey points to legal rulings and decisions by other counties’ canvassing boards that have gone their way. Martinez says that Al Gore, having lost the election in the polling place, is now trying to win it through aggressive litigation. “You have shown great courage in applying the rule of law, Mr. Leahy, Judge Lehr, Judge King—I know you and I disagree. Nevertheless, I respect you. I’m not going to push you. But you’re being pushed now. What I ask you at this point in time is that you stick to your conviction, Mr. Leahy, Judge Lehr.”

  Not the right thing to say to Lehr.

  “Nobody has pushed me,” she says. “Mr. Coffey has made a point, and I will agree with him, that events are exploding upon us… I do not operate in a vacuum.”

  The board votes unanimously to listen to the Democratic arguments. Zack argues that the canvassing board is “not a court of law. If you are anything, you are a court of equity. You’re supposed to do what’s right and fair.

  “You know, one of the least important things that we do is watch Monday Night Football,” Zack goes on. “One of the most important things that we do is elect a president of the United States….On Monday Night Football, we allow an instant replay when we’re tired, when we’re exhausted. We just want to turn off the TV and let the Dolphins or the Jets win, and go to sleep.

  “But we say, no, we as Americans have a fundamental sense of fairness. And we say, if there is a better method, we have to use it. And you know the video camera isn’t what decides what happened—it requires the decision, thank God, of a human being looking at what happened in the best possible way—slow motion, if you will. I will say slow motion is a hand count.”

  Coffey talks about Broward, how that county is doing right by its voters. “Can we say no because we’re too busy? It’s too much hassle? Of course not.”

  When De Grandy speaks, he mocks Zack and Coffey’s appeals to the emotions of the board. “Let me tell you first what I did not hear, and then let’s talk about what we know. What I did not hear was any recitation of facts or law that would justify reconsideration….What I did not hear is any compelling new evidence…. I am going to make you one promise. I promise you that Mr. Martinez and I are not going to ask you how you feel, are not going to probe your emotions.”

  “We’ll try not to do the same, Mr. De Grandy,” King quips.

  During De Grandy and Martinez’s presentation, Zack interrupts. “I never believed in Della Street coming in and talking to Perry Mason, but actually we just got confirmation that the supreme court has just blocked Katherine Harris from certifying results.”

  “Might I ask a point of order and a point of privilege?” Martinez asks. “And that is that if Mr. Perry Mason and Della Street would just keep it quiet a little bit.”

  The arguments go on. But soon enough, King calls for a vote. And unlike last time, this time he votes first. “I’ll vote yes in concurrence with the recount of all ballots in Dade County by hand,” he says. “And this time, I’ll ask Judge Lehr, if you would be so kind to make your vote.”

  Martinez is suspicious. Lehr seems to him to be the most vacillating member of the board, the most impressionable. Last time Leahy voted first, and she just followed him. Will she do the same here and follow King?

  “I, too, am going to concur with you, Judge King,” Lehr says. “I believe that the people of Dade County are entitled to have their votes counted…. You read the papers, and you listen to the television, and the news—a lot has been happening. And I have taken a lot of what has been happening into consideration,” most recently the supreme court stay of the certification, she says.

  Leahy says that the way he interprets the law, manual reco
unts are only for when there are errors in vote tabulation. He’s a no.

  The recount is on.

  Martinez is stunned. They’re disregarding the rule of law, he thinks. Furious, he returns to the Greenberg Traurig offices, where his team is working, and it’s decided that Miguel De Grandy will deal with the canvassing board from now on, while Martinez will set his sights on what happens in the courts. “I don’t want to go back there,” Martinez says about the canvassing board. “There’s no need for me to go back there. I want to focus my efforts on the courts. And I don’t want to go back there.”

  It’s as if he’s talking about Cuba itself.

  In Palm Beach, the counters grow weary. This is mind-numbingly boring work.

  “I had a lot of practice for this,” a sheriff’s deputy says. “I was an altar boy.”

  “We’ve been going about two hours, haven’t we?” one asks. “What time did we start?”

  “Can we take a break in the middle of it?” one asks Denise Dytrych.

  “Are you pretty close?” the county attorney asks.

  “We’ve got another hour and a half.”

  “We need to protect the ballots,” Dytrych says, and while the group takes a coffee break, a sheriff’s deputy stands at the table and guards the ballots.

  Tucker Eskew walks in and talks to a Bush observer. The observer tells him that in the past hour, he has seen five Bush ballots put into the wrong piles, sometimes the Gore pile. The observer also tells Eskew that the mistake was corrected after it was pointed out.

  A little later, deputy county attorney Gordon Selfridge tells some counters to treat the ballots gingerly. “You’re not supposed to be tapping it down,” Selfridge says to one of the men. The man keeps tapping it down. Selfridge complains to Burton. The judge gets up and goes to the microphone. “People want to handle them like playing cards, and people are banging them and straightening them,” he says. “You need to handle these very gently. Be sure the part you touch is down at the bottom, not in the middle.”

  At around 4:20, the canvassing board starts looking at the county’s fiftytwo absentee ballots received since Election Day. Before they open them up to count the vote, the board members need to determine whether the envelope carrying the ballot is legal. Does it have a postmark? Is the postmark from November 7 or sooner?

  One from Japan—accept. One from Israel—reject. And on and on. Seventeen will be rejected.

  Eskew points out to a reporter that the ballot boxes are lying around, and some people are propping their elbows on top.

  The postmark on a military ballot is unreadable. The Democratic attorney says that it should be rejected.

  “I cannot believe that our service boys fighting hard overseas, that their ballots would be disqualified, and I ask the board to reconsider their opinion,” says GOP attorney Brigham McCown.

  “All right, we will file a protest and arrange for a violin,” says Burton.

  Onward and downward.

  9

  “We need to write something down.”

  During that first weekend, in Tallahassee’s Camps Bush and Gore, strategists realized that they needed to supplement their focus on hand recounts with a side-dish campaign relating to overseas absentee ballots, due Friday, November 17. Of course, there are the military ballots, which are expected to come in heavily for Bush, but there are also rumors swirling that American Jews in Israel—energized by Lieberman’s presence on the ticket—have turned out in droves as well.

  Fabiani points out that “no one knows” if huge packages of ballots are coming from Tel Aviv and Jerusalem, but he and others sure talk about the possibility a lot, as if those ballots will come in packed in pita or with a shmear of cream cheese. Gore garnered 80 percent of the Jewish vote a few days ago, and estimates have about four thousand Florida Jews in the land of milk and honey. Lieberman, for one, is convinced that tons of ballots are coming from the Jewish homeland. And who knows what the military voters will do; while Dole beat Clinton in 1996’s Florida overseas ballots—54 percent to 46 percent—Dole was a war hero, Clinton a draft dodger, which is not quite the dynamic here.

  The Bushies had been a little spooked by an obscure news item about a Democratic lawyer trying to drum up post-election absentee ballots. It wasn’t exactly a story full of facts; no one seemed to pick up on it. But it was enough for the Bushies to worry, so former secretary of state Jim Smith was instructed to go out there and lay down the strict law of the land as it pertained to overseas absentee ballots.

  “The Florida law is simple, straightforward, and reason-based,” Smith said. “Let me go over some of the controlling rules. First, overseas ballots must be either postmarked by November seventh, signed and dated no later than November seventh. Overseas ballots may not be completed after November seventh. With respect to this election, the time to complete an absentee ballot ended on the day of the election. Any overseas ballot completed after November seventh is invalid, invalid, and cannot be counted.

  “Next, for voters mailing overseas absentee ballots, only those ballots mailed with an APO (army post office), FPO (fleet post office), or foreign postmark shall be considered valid. Ballots that are not mailed with these postmarks are invalid and cannot be counted.”

  Smith went on to outline seven additional laws for absentee ballots. There are a lot of requirements absentee ballots must meet, he insisted. They must be completed by the voter, have the signature and address of a witness, a witness can’t verify “more than five ballots in an election unless he or she is legally authorized to administer oaths or is an absentee-ballot coordinator designated before the election,” and on and on.

  He then attempted to put the fear of God in anyone who might be thinking about trying to skirt these rules. “It is a felony to perpetrate, attempt, or aid in any fraud of any vote cast or attempted, such as backdating an absentee ballot,” he said. He used the word “fraud” once, the word “felony” four times.

  A reporter asked Smith: Why are you here?

  “At the request of the Republican Party of Florida,” he replied, because of “news reports that there has been some encouragement of some individuals overseas who may not have cast their ballot” but were erroneously told that “even though the November seventh date has passed, they could still do that.” When pressed, however, Smith allowed that he didn’t know the specifics of the story he was referring to.

  Over at Democratic HQ, at the coordinated campaign center, attorney Mark Herron was working on the same project. Herron had no knowledge of Smith’s press conference, though his understanding of the law was the same. But ironically, Smith had a lot to do with why Herron was sitting there in Democratic HQ.

  See, Herron and his law firm—Akerman, Senterfitt & Eidson—had just parted ways. The other partners didn’t want him to work for Gore and told him that if he continued to do so, they would have to split. Given that choice, Herron remembered a similar predicament back in ’86, when he was with a different firm, and he was asked to run the gubernatorial campaign of former state representative Steve Pajcic. Herron listened to his law partners then and watched from the sidelines as Pajcic beat Smith—then a Democrat—in the primary. But because of the ill will between Pajcic and Smith, Smith ended up endorsing GOP nominee Bob Martinez in the general election and soon became a Republican himself. Herron was friends with both men, and he was sure that if he had been running Pajcic’s campaign, none of the ugly fallout would have happened.

  He swore to himself he’d never again opt out of such an opportunity. Which is what this was, he thought. So he was booted.

  Over the weekend, the Gorebies had asked Herron to work on the overseas-absentee-ballot issue. What’s the process? he was asked, over and over, by Nick Baldick, Ron Klain, Charlie Baker, Jack Corrigan. Herron walked them through it. Back in 1980, it was clear that Florida had an inherent defect in its election system, arising from the fact that its primary elections were so late—a September primary, then a runoff in October. How cou
ld they get the overseas ballots out when they didn’t even know who was going to be on the ballot until October? The choice was either move the primaries back or give overseas folks more time. So in 1984, the state of Florida and the federal government entered into a consent decree, Herron explained, which allowed these ballots to come in up to ten days late—as long as they were postmarked by Election Day or, if they didn’t have a postmark (some letters from overseas military bases aren’t postmarked), signed and dated by Election Day.

  In 1989, despite the consent decree, the Florida legislature ruled that only ballots with postmarks would be considered valid, and Republican Smith and Democrat Herron clearly read the conflict the same way—the 1989 law ruled supreme. Both were operating out of political interest, of course—Smith trying to guard against invalid Gore votes, presumably from Jews in Israel, Herron against invalid Bush votes, presumably from soldiers.

  For once, there was something everyone agreed on. But not for long. Not after Herron, at Charlie Baker’s urging, writes a memo detailing the many ways overseas ballots can be disqualified, “count every vote” be damned.

  Toward the middle of the week, the Bush team’s Warren Tompkins puts together a spreadsheet on the overseas absentee ballots, what had come in already, what had been counted, how many had been requested, how many were still expected in, and so on. The overseas-absentee-ballot thing was likely going to go their way, Tompkins tells people. He anticipates that the Democrats know this and are going to challenge as many of them as possible.

  “You’re kidding me,” spokeswoman Mindy Tucker says to him. “They can’t protest.”

  “We think they’re going to,” Tompkins responds.

  Tucker wants to let the press know about this at once; but she’s overruled. Let’s wait, she’s told.