by Jake Tapper
Working with fellow Democratic observer Steve Kaufman—an L.A. attorney who does a lot of election law—Young notices something interesting about the Miami-Dade ballots. There are a whole bunch where the chad has clearly been punched out—nothing hanging, nothing dimpled—but the chad has been punched out for a nonexistent candidate. Kaufman and Young have an explanation, and using a sample ballot they demonstrate the theory to Leahy.
There is, they point out, no candidate’s name next to chad no. 5. But if you put the paper ballot on top of the plastic booklet of candidates that rests on the breadbox-size Votomatic instead of in the slot under the plastic booklet, then the no. 5 is the chad next to Bush’s name, which is actually in the no. 4 slot. Same for all those no. 7 votes—Young and Kaufman tell Leahy that those must be actually for Gore, whose chad is actually designated no. 6.
Once the canvassing board has been through the rest of the 10,750 undervotes, they’ll come back and look at the 5’s and 7’s, Leahy says.
Judge Jorge LaBarga seems genuinely anguished as he walks into his Palm Beach County courtroom to rule on the butterfly ballot plaintiffs’ call for a revote.
“Clearly, a great number of patriotic and deeply concerned citizens of Palm Beach County fear that they may have unwittingly cast their vote for someone other than their candidate,” LaBarga rules. “While some may dismiss such concerns without a second thought”— Hmmm. Whom do you think he’s talking about?—“this court is well aware that the right to vote is as precious as life itself to those who have been victimized by the horror of war, to those whose not-too-distant relatives were prohibited from exercising the right to vote simply because of their race or gender, and to those who have risked it all by venturing across an unforgiving sea in makeshift rafts or boats.
“However”—and you knew there was a “however” coming—“for over two centuries we have agreed to a Constitution and to live by the law.”
Yes, there have been overturned elections and revotes in Florida before, LaBarga notes. The Carollo-Suarez mayor’s race in ’97. A Polk County commissioner’s race in ’96. A 1978 Liberty County school board race. A 1979 Wakulla County race for county judge. The 1972 Democratic primary race for sheriff of Columbia County. And yes, there have been races in other states—Delahunt, a ’93 Pennsylvania race for state senate, a ’97 state assembly race in Jersey. But “the plaintiffs in this action cite not case law authority in the history of our nation, nor can the court find any, where a revote or new election was permitted in a presidential race.” The law is clear that “presidential elections must be held on the same day throughout the Unites States.”
So: tough luck.
Harris’s office is a virtual greenhouse, packed as it is with flowers from well-wishers all over the country. But things are not so great for her. She’s received death threats, so she now has sheriff’s deputies following her around. She eats most meals in her office. She doesn’t sleep. She’s heard the rumors about her and Jeb, and though her husband laughs them off, they still bother her.
She starts to think of herself as Queen Esther, a biblical figure known for being both brave and beautiful.
Esther was also plucked randomly into a position of power in which she made history, but it’s assuredly not the most humble thought Harris has ever had. The saga of Esther took place during the 400’s b.c. After being adopted by her cousin Mordechai, the beautiful Esther was chosen for the harem of King Xerxes, known as Ahashverosh in the Bible. Esther kept her Jewish ethnicity secret until Prime Minister Haman—outraged after Mordechai refused to bow down to him—tried to have all the Jews in the empire killed. It was against the law to appear before the king without being summoned; nonetheless, Esther went before King Xerxes—“If I perish, I perish,” she said. She did this not once but twice, “begging him with tears,” according to the Book of Esther, “to stop Haman’s evil plot against the Jews.” Xerxes heeds her request, the Jews survive, and the whole deal is celebrated in the Jewish holiday of Purim, the only Jewish celebration that requires intoxication. Esther is also the Persian name for Hadassah, Lieberman’s wife’s name.
“I reread a book about Esther last night,” Harris e-mails a fan. “She has always been the specific character in the Bible that I have admired.” “Esther has long served as one of my favorite role models,” Harris writes to another. “Queen Esther,” she e-mails a fellow Republican, “has been a wonderful role model.” She makes the comparison out loud, in the office. “If I perish, I perish,” she says—so much so that she starts to annoy her staff.
Of course, Esther saved Jews from being slaughtered by a Babylonian despot. As opposed to working steadfastly to apply law rigidly so as to benefit her preferred presidential candidate. But whatever.
On Monday in Plantation, Broward County, with 544 of 609 precincts done, Gore has a net gain of 117 votes.
The bigger task ahead lies in the thousands of questionable ballots that the canvassing board has to review personally. But suddenly Elections Supervisor Jane Carroll makes a surprise announcement. She’s leaving. She’s going on a cruise.
Lee isn’t surprised. Carroll’s seventy years old and not exactly the picture of health. Carroll had told him that her blood pressure was way up, that her doctor told her that if she kept going, she might have a heart attack from the stress. But this poses a real problem. Florida law states that a county commissioner should now fill Carroll’s space. However, this is Broward County, the Massachusetts of Florida, and all of the county commissioners are Democrats. So the canvassing board, under these rules, will now be entirely Democratic.
This concerns Lee. We’re fighting a battle here, trying to have some legitimacy, he says. Lee calls chief circuit court judge Dale Ross, explains to him the problem. We need a Republican, he says. Ross says that he’ll talk to county GOP chair Pozzuoli. Eventually they settle upon circuit court judge Robert Rosenberg.
When Rosenberg reports for duty on Tuesday, Lee is immediately put off. The first two things Lee hears out of Rosenberg’s mouth are that they’re never gonna finish this in time and that he’s not working long days.
This isn’t what Lee wants to hear. They have more than 10,000 questionables to look at—6,000-some undervotes, plus the other questionables that the Republican observers have stacked the deck with to prolong the process. This is going to be work.
Though Lee is technically the junior judge to Rosenberg, he steps up and lays down the law. Just like you replaced Mrs. Carroll, he says, you can be replaced, too. So you’re either going to do it or tell me now that you’re not, and we’ll get someone to take your place.
Rosenberg says he’ll get on the program, but he generally keeps his distance from Lee and Gunzburger. He doesn’t eat with them. Instead, he dines with Georgette Sosa Douglas, the Fort Lauderdale attorney suing them in federal court. Sosa Douglas doesn’t even talk to Lee, even though they once were friends, to the point that she spoke at the ceremony that commemorated his formally becoming a judge.
Yeah, Rosenberg’s an odd duck, Lee and Gunzburger think. They notice the long, drawn-out way he examines the punch cards. Taking off his Coke-bottle glasses and bringing the ballot so close to his face that his eyes cross. Or holding up a magnifying glass to the ballot. Rubbing his eyes exhaustedly. It’s quite theatrical. Lee’s willing to give him the benefit of the doubt, assuming that Rosenberg’s just trying to be as deliberative as possible. Gunzburger thinks he’s trying to prolong the process, just like Scherer and the rest.
Gunzburger and Lee do find one silver lining in Rosenberg’s appointment to the board. With Carroll, they’d been joking for some time about an “ugly picture contest.” Lee’s mother in Duval County would call him to tell him of unflattering photos of him in the local paper; there was one nottoo-nice one of Carroll in USA Today. But once Rosenberg came on board, with his bulging, cross-eyed stare, which made the front page of the New York Times, there was no doubt who was the winner. No need for a recount on that one.
P
erhaps it’s only appropriate that Jeb Bush’s first public appearance since this all started is in the prison town of Marianna, where he holds an “Open Office Day” on Tuesday. “It’s like being an Iranian hostage,” Bush tells one Floridian, Bill Slay, of the last week. “I can’t even walk around outside now. It’s like the seventh day of being held hostage.”
When he finds out that Slay’s a beekeeper, Jeb points to the reporters following him around. “These are my bees, and I’m the hive,” he says.
Poor Jeb. Throughout the presidential race, W. would joke that “little brother recognizes that Thanksgiving might be a little chilly,” when asked how important it was that Florida go for him. Jeb surely feels the pressure. Hence, he’s been hiding from the press, pretending to have recused himself from the contest, while his chief staffers and advisers help run things behind the scenes and he lights up the phones and makes sure everything’s going on track. Jeb, in fact, was the one who got Barry Richard to speak today, despite Ginsberg’s and Baker’s insistence on Carvin.
“I’ve been doing my day job here, trying to keep politics out of it,” Bush tells reporters. For instance, he signs two death warrants.
What an odd position to be in! And yet, it was Jeb who was daddy’s favorite, Jeb who was supposed to be the politico of the family. Big brother George was still losing daddy’s money on his ill-fated oil company, still boozing to excess, still turning mom’s hair white while Jeb was married, a successful Miami real-estate developer, then Florida secretary of commerce and well on his way to power in Florida. When big brother George decided—almost on a whim!—to run for Texas governor in ’94, the same year Jeb ran, it pissed Jeb off at the time; he thought both of their candidacies would relegate his campaign to half of “a cute People magazine story.” To make matters worse, big brother George won, and he lost! This despite the fact that Jeb was always the harder worker, the better student, the one who wasn’t drinking and driving and smashing into trash cans. And now here he was, scrambling behind the scenes, doing what he could for his brother once again. Seemed like he was always picking up for his family’s mess. There was that time in June 1999, when his wife, Columba, hid $19,000 worth of clothing and jewelry she bought on a Paris shopping spree from U.S. Customs officials. And, of course, there’s today’s goddamn story in the New York Post, which reports on his sixteen-year-old son, Jebby, being caught naked with a chick in a Jeep Cherokee parked at the Tallahassee Mall in October.
“My dad will fix it,” Jebby was quoted as saying. And indeed, the Miami Herald and the St. Petersburg Times got copies of the police report, but they never wrote a word about it. The governor is given great deference in Florida. And not just by the media.
Burton’s starting to think that maybe Clay Roberts was right, maybe these hand recounts should apply only to machine error.
He sees these little dimples that the Democrats want counted as votes. How can you legitimately call them votes? he wonders. It reminds him of when he sits in criminal court and a guy comes before him charged with his fourth DUI and says,“You know, I know I have a drinking problem, but my wife just left me and I lost my job,” blah, blah, blah. It’s everybody’s fault but his. Burton’s attitude is gimme a break. This “just a victim of circumstance” thing doesn’t play well with him. Sooner or later you gotta say that you’re responsible, that you’re accountable. If it says, “punch out the chad,” you gotta punch out the chad. Is that so complicated?
“Sooner or later isn’t somebody going to assume responsibility and read the goddamn instructions?” an exasperated Burton wonders. “Or if they don’t know what they’re doing, can’t they ask for help?”
The Supreme Court of Florida rules Tuesday night, offering a victory—at least for now—for Gore. Remarkably, the court essentially rewrites the election code, extending the deadline for counties to recount votes, or tally unread unrecorded votes that appear to be Gore’s last hope. Instead of the November 12 deadline for the recounts, fanatically adhered to by Harris, counties now have until Sunday, November 26, at 5 P.M.—or Monday at 9 A.M. if Harris’s office isn’t open Sunday.
“Twenty-five years ago, this Court commented that the will of the people, not a hypertechnical reliance upon statutory provisions, should be our guiding principle in election cases,” Chief Justice Charles Wells writes in the unanimous opinion. “We consistently have adhered to the principle that the will of the people is the paramount consideration.”
The ruling isn’t a total win for the Gore team, however, begging off as it does on opportunities to set a statewide standard.“We declined to rule more expansively, for to do so would result in this Court substantially rewriting” election code, the court writes. But the court does offer a strong push in the direction of permissiveness, citing the Illinois Supreme Court’s Pullen decision, * which ruled:
The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter’s disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect.
And as if that weren’t enough, the court goes so far as to offer specific deft slams to claims made by many in la famille Bush, ruling against Harris’s interpretation that hand recounts can be acceptable only when there is “error in the vote tabulation,” which she deemed meant error in the vote tabulation system. She said that such a standard “only means a counting error resulting from incorrect election parameters or an error in the vote tabulating software,” the court wrote. “We disagree.”
Flushed down the Florida toilet, at least for now, goes Baker’s—and indeed, the entire Bush camp’s—assertion that machine recounts are preferable to hand recounts, since the latter is subject to “mischief” and “subjectivity”: “Although error cannot be completely eliminated in any tabulation of the ballots,” the court wrote, “our society has not yet gone so far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors of machines. For this very reason Florida law provides a human check.”
Most important, however, is the court’s adherence to the first line in the state constitution: “All political power is inherent in the people.” Harris could ignore this only under two circumstances, the court rules: if rejecting the recount would have prevented a candidate, party, or voter from contesting an election certification, or if somehow it prevented “Florida voters from participating fully in the federal electoral process.” “But to allow the Secretary to summarily disenfranchise innocent electors in an effort to punish dilatory” counties who didn’t get their returns in on time “misses the constitutional mark,” the court concludes.
Gore, of course, still will have to fend off other litigation from Bush and his lawyers challenging this ruling, as well as challenges to the liberal chad rules he wants and God knows what else. Plus, of course, he still has the little matter of earning more votes than Bush has. But in a state with a governor named Bush, a secretary of state who might as well be named Bush, a Republican house and senate, as well as a daunting number of Democratic voters who can’t figure out how to competently vote, Gore finally catches a break in Tallahassee.
Judge Terry Lewis knows the Florida Supreme Court pretty well, and he thinks well of them, too. Justice Harding’s in his Rotary Club, and Justice Wells used to play b-ball with the other judges and lawyers on occasion; Anstead still plays every now and then. Like any good appellate judge, Lewis jokes, if you give Anstead the ball, he gives it right back to you.
That said, Lewis sure is confused about this ruling, which overturned the decision he made last Thursday.
Harding said it himself during the oral arguments—where are we supposed to come up with a new date, with a new scheme? “Are we just going to reach up for some inspiration and put it down on paper?” the justice had asked. Exactly the point, Lewis thinks. Where did this November 26 date come from?
Maybe he should have made his second ruling a little bit more detailed, he wonders. There is a contest provision. If a candidate thinks he’s got evidence of legal votes that haven’t been counted, that’s grounds for a contest.
Why are the Gore lawyers resisting that so much? Lewis asks himself. He doesn’t have an answer.
Nor does Dexter Douglass, for that matter, who behind the scenes is also urging Klain and the others to accept the certification deadline and move ahead to the contest period. But the PR hit would be too much, he’s told. Douglass says that he doesn’t think in terms of a PR hit, and what would it matter if Gore wins? The nation will embrace him no matter if he wins a “protest” or a “contest,” no one much cares. But he’s overruled. Douglass begins to think that no one on the Gore team is really all that interested in his unsolicited opinions on anything.
The counting goes on in the counties, as if nothing happens.
In Palm Beach at 9:42 P.M., county administrator Robert Weisman takes the microphone to tell the room that the Florida Supreme Court announcement is coming, and they will put it up on the big TV screen at the front of the room.
As a perfect symbol of Palm Beach efficiency, the technicians tune to CNN but can’t punch up any sound. Nobody knows what the ruling is until after the announcement has been read by court spokesman Craig Waters and the headline comes on the screen: “Supreme Court rules the recounts must be counted.”