Down & Dirty

by Jake Tapper

  I have now officially been in line for four hours and forty-five minutes.

  Finally we get in.

  The supreme courtroom has a high ceiling. A large bench stands up front, the seven justices’ names all writ out, but other than that, we could be in a small chapel. Frank, Trevor, Alyson, and I debate whether a certain TV correspondent is wearing a rug. You’d never know it unless you saw him from the back, where what looks like a toupé plops over the thin scraps of real hair poking out from underneath, like fringes on an Oriental carpet.

  We’re still debating its legitimacy when the correspondent scratches his head, and the whole deal moves like a tablecloth.

  Hair still on my mind, I make a joke that Barry Richard’s immense gray pompadour makes him look like he plays the sax for Billy Joel. When Richard comes over to my row, I realize that I am sitting next to his wife, Allison. “Look how handsome you look!” she says to him. We look to the left and stare at Christopher, who appears embalmed.

  Agriculture commissioner Crawford and elections head Roberts walk in and take front-row seats. Then the court marshal and another courtroom employee walk in and out of the justices’ chambers, putting folders and stacks of papers before the appropriate justices’ chairs. The marshal then steps down from the dais, looks down, takes a breath, and then proceeds to bellow: “PLEASE RISE! Hear ye, hear ye, hear ye, the supreme court of the great state of Florida is now in session!”

  The seven robe-clad justices spill out onto the bench one by one. The chief justice settles first into his chair in the center, followed by the justice who sits to his immediate right, then the justice who sits to his immediate left, and so on, right, left, right, left—a well-choreographed presentation.

  Seated, left to right, they are two old white men (Fred Lewis and Harry Lee Anstead), one old black man (Leander Shaw), the old white chief justice (Charles Wells), another old white man (Major Harding), with two stately middle-aged women—one white (Barbara Pariente) and one black (Peggy Quince)—rounding it out on the right.

  Before they moved to Tallahassee upon their appointments, Anstead and Pariente were from Palm Beach (!!!)—a fact that right-wing-conspiracy theorists outside the courtroom are already citing, anticipating that not only will the largely Democrat-appointed court fulfill their liberal-activist stereotype, but somehow they’ll show geographic bias.

  Being a supreme court justice is a good gig. You can interrupt lawyers in mid-bullshit and tell them to fast-forward to the relevant part. You can challenge their misrepresentations and glib evasions with disdain and impatience. And instead of your impudent actions resulting in an immediate end to a press conference and a lifelong kibosh on obtaining interviews, the shysters treat you with deference, bowing and genuflecting and calling you “Your Honor.”

  Which is what happens here. In fact, Chief Justice Charles Wells begins the proceedings by preemptively telling the attorneys to cut to the chase. “Since we have a limited amount of time here, we would ask that we get right to the heart of the matter as you see it, because we are fully cognizant of the facts and the procedures of below that have brought you here.” Wells isn’t screwing around. He even tells the rest of us when our bathroom break will be.

  Despite that warning, Paul Hancock, representing Butterworth, commences with a bucket of rhetoric.

  “The court has previously referred to the attorney general as ‘the people’s attorney,’” Hancock says. “I stand here on behalf of the attorney general in that capacity….The right to vote is perhaps the most cherished right in our democracy. The real parties and interests in this lawsuit are not the presidential candidates, nor the parties that support them—”

  “Mr. Hancock, excuse me for interrupting,” Wells says. “I would really like counsel on both sides to pay attention to a concern of mine.” That concern is to figure out how to resolve this mess.“It seems from my reading that we have a continuum from November seventh to some point in December,” Wells explains. “And that’s when my concern is, and so I’d like to sort of get this hammered down to that framework.”

  Great, thinks Bush attorney Michael Carvin. They’ve already decided that we lost the argument about whether November 14 was the certification deadline. Usually they let you debate the matter a bit first.

  “What’s the date, the outside date that we’re looking at and which puts Florida’s votes in jeopardy?” Wells asks Hancock.

  “December twelfth, Your Honor, is my understanding,” Hancock says. “The electoral college meets on December eighteenth.” December 12 is the “safe harbor” day on which the Florida legislature can meet and elect its electors if it so chooses, if it fears that the state’s electors will be in jeopardy if they don’t.

  Carvin had come prepared to argue in favor of December 12 as the deadline, anticipating that Hancock and Boies would give the outside date, December 18. He’s pleased that Hancock has made this point for him.

  And Carvin’s good luck continues, as Wells asks Boies the same question. Hancock said the deadline for all of this is December 12. “Do you agree with that?”

  “I do, Your Honor,” Boies says. After all, December 12 is years away. Years. This thing isn’t going to last that long. Boies is confident that he’ll successfully argue for an extension of the deadline, the hand recounts will go on, and he’ll go home, just like that. Why argue with a supreme court justice over six days in December?

  Carvin implores the high court not to accept a hand recount. But the court is well aware that Florida law—not to mention Texas law—finds such recounts not only legal but, at least in Texas, preferable to a machine recount. As Boies argues, “I cannot imagine how the [Florida] legislature could provide for these manual recounts and yet have those recounts be an illusory right.”

  “Does the secretary… play any role in determining whether or not there shall be a manual recount in any county?” a bulldog-faced Justice Harry Lee Anstead asks Joe Klock. Klock is reputed to be a brilliant legal strategist, a font of ideas, but in a courtroom he can be bumbling and clumsy and even a bit obnoxious. Or maybe it’s just that the actions of his client are tough to defend.

  “Absolutely not, sir,” admits Klock.

  “And so, who has the authority and responsibility for that?”Anstead asks.

  “The canvassing board of the county,” Klock says.

  “Well, under the circumstances that we have here, then, isn’t in essence the secretary of state, who has no authority to determine that, overruling a decision by the proper body that has the authority to do that?”

  “To the contrary—”

  “Isn’t that what the net effect of this is?”

  “To the contrary, Justice Anstead—”

  “Well, if the secretary is saying, ‘I’m not going to count the recount that started very late in the process,’ and at a time in a large county where effectively the recount could not be completed before the seven days were up, isn’t that the net effect?”

  “Justice,” Klock says, “I don’t know that the recount couldn’t be done in that period of time. And of course we have no trial record to know whether the recount could be done in that time.”

  “Don’t we also end up sort of discriminating between small counties and large counties?” Anstead asks. “If we take Dade County, for instance, and Okaloosa County, clearly there is going to be a vast difference in the time that it takes in Dade County to do that manual recount compared to a small county. Would you agree?”

  “Justice Anstead, yes,” Klock says.

  Amazing—Harris has done everything she can outside this courtroom to stop the hand recounts, but here today Klock is admitting that it was up to the canvassing boards the whole time.

  Anstead presents a hypothetical anecdote that further undermines Harris’s justification for discarding three counties’ manual recounts. Harris, he poses, based her trashing of the recounted numbers on the statutory deadline for certifying the votes seven days after the election—a position she has clung
to like Linus to his security blanket. But what if the members of the Miami canvassing board were to “go off to the islands” for a week instead of completing their vote-counting duties by the seven-day deadline? Anstead asks. Would Harris simply not accept their votes? Is the seven-day deadline absolute?

  “Of course it’s not absolute,” Klock finally allows.

  Democrats are also peppered with questions about their more dubious claims and actions. Attorney Andrew Meyers, representing Broward County—which decided on Sunday to start considering the unpenetrated “pregnant”- and “dimpled”-chad ballots along with the others—is asked by Leander Shaw whether this wasn’t “unusual, changing rules in the middle of the game.” Meyers says that “the important thing is that we do what’s right at the end.” How to read the ballots has been an “evolving area.”

  But the larger problem for Gore and his lawyer friends isn’t dimples but resolving how the justices could allow the hand recounts without blatantly violating the Florida law that mandates last Tuesday’s certification deadline. What can be done? The Democrats’ attorneys are asked repeatedly for suggestions as to how they think the court could rule to keep everything within the parameters of the existing law. But they don’t provide many answers. “There is some information in the record,” says Boies, “but to be completely candid with the court, I believe there is going to have to be a lot of judgment applied by the court as well.”

  The debate returns to accuracy issues: “Is it the manual-recount process that’s inherently flawed?” Pariente asks. “Isn’t that the exact process that is set forth by—as has been represented to us, as the statutes reveal—in Texas law, for this exact process to take place where there’s manual recounts? And that those are preferred over the machine recounts?”

  “I really don’t know what Texas law is,” Carvin says. Of course he knows full well what Texas law is, but he doesn’t think there’s any sense in talking about a law from another state. From Carvin’s point of view, the Florida Supreme Court is just not going to rule in their favor. As Baker puts it to him during the brief bathroom break: “Just answer the questions, and we’ll get out of here.”

  Still, Carvin isn’t ready to completely give up, and he tries a little subliminal strategy. He keeps arguing home the point that the Florida Supreme Court has to abide by a provision of the federal election code—United States Code, Title 3, Section 5—that generally prohibits states from appointing electors according to any rules made after the election. The law dates back to 1887, in the wake of the disputed Hayes-Tilden election of 1876; * the U.S. Supreme Court has never ruled on it one way or another. Carvin knows that if the court abides by 3 U.S.C. 5, it will set the stage for the Bushies to complain to the Supreme Court of the United States about equal protection violations down the road if the Florida court goes ahead and orders the recount. He has a 108-year-old U.S. Supreme Court precedent at hand— McPherson v. Blacker, in which the SCOTUS ruled that the U.S. Constitution “leaves it to the legislature exclusively to define the method” by which each state’s electors are chosen. But Carvin has no intention of telling them about this case, no intention of warning them of the argument that he, Olson, and the rest will make before the SCOTUS if the Florida Supreme Court extends the certification deadline. It’s something of a trap, and Carvin is only too happy to set it. †

  The justices ask Boies what he thinks of a statewide recount.

  “We are not urging that upon the court,” he says. “But certainly that is something that we have indicated that we would accept. And we believe the court has the power to order that or to order, as the court suggests, a window” for the hand-recount tally totals to come in.

  Carvin is surprised that Boies doesn’t press the case for a statewide count. Boies should say, “We think these three need to be counted, and if you want to do all of them after these three are finished, that’s fine, too,” Carvin thinks. After all, certainly if some counties are recounted, no definitive win can come without all of them recounted. Boies must figure the Florida Supreme Court’s already in his pocket, Carvin reasons. But are they not looking ahead? This is the exact way to get the Supreme Court of the United States involved—which is, of course, the Bush strategy: the SCOTUS will save us! Please, throw me in this briar patch! Carvin thinks.

  Boies and the Gorebies, however, are confident that SCOTUS won’t rear its head. This is a state issue, they think. The current group of justices in Washington has voted again and again in favor of states over the federal government. Sure, justices like Scalia, Rehnquist, Kennedy, and O’Connor probably prefer Bush be president. And Clarence Thomas was nominated to the court by W.’s daddy, so he might feel a little personal loyalty. And while the Supreme Court’s conservative pro-states’ rights philosophy has frustrated the Democrats again and again, this time it works to their advantage.

  “Mr. Boies, I think your time is up,” Wells says.

  I ask Allison, Barry Richard’s wife, when she thinks the court will decide what to do.

  “I keep asking my husband, ‘When will the justices rule?’” she says, laughing. “He keeps saying, ‘They’ll rule when they rule.’”

  After the arguments, Daley and Christopher say good-bye to Tallahassee. “Those guys are leaving, and they’re not coming back,” Klain predicts to Hattaway.

  Christopher has a sick daughter, and his wife’s best friend has passed away. He’s needed in Los Angeles for family reasons, and though he will continue to stay in close contact with the team—especially with his colleague Mark Steinberg, who stays behind—when “Chris” leaves Tallahassee, he leaves.

  Daley will return once more, but he, too, decides that his presence is better served elsewhere. He flies to D.C., shoring up support on Capitol Hill, hanging with Gore, keeping the operation running from Gore’s home at NavObs, which some are now calling “the Bunker.” He needs to keep the Hill in line, he needs to be where the political action is, near Gore. And frankly, with all the bashing of his dad, he’s not sure that he’s helping by being the public face of Gore’s deal down here. Boies and Klain seem to have everything under control.

  Baker, however, will remain in Tallahassee, the nucleus of the Bush atom. He has a job to finish. When Bush is crowned, then he’ll leave. But not before then.

  In Plantation and West Palm Beach, the tedium continues.

  In downtown Miami, the tedium begins.

  Elections Supervisor Leahy announces the plan, which is similar to that of the other two counties: more than fifty counters at twenty-five tables on the eighteenth floor of the County Building. They can be done by December 1, with Thanksgiving off, Leahy says.

  The Miami-Dade canvassing board, however, has seen the havoc wreaked on the other two counts by observers objecting to unobjectionable ballots. For that reason, Leahy assumes that the 10,750 undervotes will be questionable by definition, and he begins to separate them on Sunday so the canvassing board can check them out. Additionally, Leahy, with the board’s approval, gives the Miami-Dade counters very different instructions when it comes to the observers. The counters are instructed to not show each ballot to the observers. They’ll put any questionable ballots in separate piles, and stack the other ballots in Gore or Bush piles. Once those Gore or Bush piles are an inch thick, the counters can hold them up as a pile for the observers to inspect. If the holes are clearly punched—and the observers can peer all the way through the aligned Gore or Bush holes—then the assumption will be that there are no problems with those ballots.

  “We’re going to run an orderly ship,” Judge King says. “I do not expect observers to be arguing or putting into this process their personal opinion.”

  The Bushies have a real presence outside the county building. I’m somewhat familiar with New York congressman John Sweeney. A statesman he ain’t. As soon as he was elected in 1998, he made a beeline for the National Republican Congressional Committee, where he quickly made a name for himself by being one of his class’s most aggressive fund-raisers
. Totally part of the problem. And, of course, here he is today, claiming that “Miami-Dade has become ground zero for producing a manufactured vote.”

  I also know Sweeney’s colleague, Rep. Rob Portman, R-Ohio. He’s a gentleman and a good guy. He, of course, has a slightly different tone, if the same fundamental message.“We’re here this morning because we’re deeply troubled by what we see unfolding in Miami-Dade County,” Portman says. “At the very least, if there’s going to be another recount, there needs to be clear guidelines. The eyes of the world are on Florida and Miami-Dade County, and they don’t like what they see.”

  The Bush campaign has sent out e-mails and made phone calls and relocated its advance staffers to Florida to create the illusion of outraged voters. These professional Bush staffers have been shipped in to whip up locals into a frenzy. And Republican activists keep coming, their room, board, and travel paid for by the Bush recount fund. They’re directed to Miami-Dade specifically, since Mehlman and others are concerned about the mystery of what might lie on those 10,750 undervotes. And once they’ve gotten to Miami-Dade, they’re supposed to cause a ruckus. Which they’re more than happy to do.

  Thus, outside, it’s getting tense.

  Inside, too.

  One of the lions of integrity guarding the process for Bush is GOP observer Grant Lally. Lally’s a two-time losing congressional candidate who in 1998 received one of the largest penalties ever meted out by the Federal Elections Commission—$280,000—for receiving more than $300,000 in illegal campaign contributions from his parents for his 1994 primary and general election campaigns, and then lying about it.

  Lally decides to pick a fight with Ivy Korman, administrator of the elections department. He calls her “hostile” and tries to get her kicked out of the room. Both Lally and Korman are allowed to remain, but King’s patience is starting to wear thin. De Grandy is objecting like crazy, which is fine; it’s the observers who are talking and keeping the process from proceeding in an orderly manner.