Down & Dirty

by Jake Tapper

  In the counting room, at least, there is no reaction.

  By the time the clock strikes midnight, the world hears responses from Gore, Douglass and Boies, and Baker.

  Gore’s statement, made from Washington, is all about looking presidential and above the fray. “I don’t know what these ballots will show,” he says. “I don’t know whether Governor Bush or I will prevail. But we do know that our democracy is the winner tonight.”

  Why does he say things like this? Has no one told him that he sounds as sincere as Eddie Haskell when he waxes lofty?

  Gore also tosses out, once again, his offer to meet with Bush—knowing that Bush will never agree to do it and that every time he makes the offer and Bush rejects it, the Texas governor looks like a spoiled brat.

  Back in Tallahassee, Douglass and Boies appear in the state senate hearing room that the press corps has commandeered.

  “The supreme court has done what we asked it to do,” Boies says.

  Beyond just gloating, however, Boies tries to signal across the state that Broward and Miami-Dade counties were conducting their hand recounts appropriately—using the broadest definition of what stage of chad is acceptable—while Palm Beach County isn’t. Rattling off the page numbers and citing specific footnotes from memory, Boies notes that the court used the Illinois Supreme Court’s liberal interpretation of which chad are kosher—a citation that he had provided to them in his brief.

  “Many of you may have seen the Chicago Tribune article earlier today in which it referred to the fact that under Illinois law, the indented chads, so-called dimpled chads, are counted under Illinois law. And the Chicago Tribune article referred even to the exact Illinois Supreme Court case that the Supreme Court of Florida referred to and relied on in its decision. *

  “Any indication of the intent of the voter—that is what counts,” Boies explains. “We would hope that is the standard that Palm Beach County would promptly employ. In each of those counties it’s terribly important that those votes are counted.”

  Asked if the Gore team would support an effort for a statewide hand recount if Bush wanted one, Boies notes that the Bushies have repeatedly said that they don’t want one, and that the court’s plan doesn’t seem to allow enough time for a statewide recount. Eventually he sidesteps the question altogether as a hypothetical before any of us realize what he has done.

  Lastly comes Baker, at 11:56 P.M.

  Despite the fact that the Republicans, and certainly Baker, had assumed the Florida court would rule against them, Baker and his crew are livid. They are, after all, the types who are used to getting their way. They’ve been getting their way their entire lives.

  His blood boiling, venom seeping from the corners of his mouth, Baker begins by noting that Monday, Justice Major Harding asked, “Is it right to change the rules in the middle of the game?” “The Florida Supreme Court and some Democratic county electoral boards have now decided to do just that,” Baker says. “Florida’s supreme court rewrote the legislature’s statutory system, assumed the responsibilities of the executive branch, and sidestepped the opinion of the trial court as the finder of fact. Two weeks after the election, that court has changed the rules and invented a new system for counting the election results.”

  Then, the cue, the foreshadowing of where we go next.

  “One should not now be surprised if the Florida legislature seeks to affirm the original rules,” Baker says.

  [Clap of thunder, flash of lightning.]

  Baker clarifies, when asked, that the Bush campaign isn’t going to “seek relief from the Florida legislature,” just that he “would not be surprised”—[Stage direction: Lift arms in air innocently, giving a “Who, me?” look]—“to see the legislature take some action to get back to the original statutory provisions.” He says that neither he nor Bush has been in touch with anyone from the Republican-controlled Florida legislature, though he couldn’t vouch for anyone else.

  What exactly could the legislature do?

  Article II, Section 1 of the U.S. Constitution states that each state may select its presidential electors “in such manner as the Legislature thereof may direct.” So it is not unforeseeable that the state legislature would take matters into its own hands and choose the state’s 25 electors, especially if the election results remain subject to legal attack up until the deadline for selecting electors in December. What Baker doesn’t have to add is that the legislature is controlled by the Republican Party. We’re going to get Florida’s electoral college votes, Baker’s threatening, whether by stopping the recount or calling in favors.

  And while he has the world’s attention, having floated this unbelievable proposition, Baker slams the very concept of “the infamous dimpled chad.” He notes the 1990 Palm Beach County standard. Baker says that Boies was incorrect a few minutes earlier when he said that the Illinois Supreme Court okayed pregnant or dimpled chads, which are still attached to the ballot though an indentation is visible. “The case wasn’t talking about dimpled chads at all, it talked about hanging chads,” Baker clarifies.

  Actually, Pullen—which Baker calls by the wrong name from the wrong court—doesn’t take a position on any specific chad one way or the other, but it does say that undervotes have to be examined to see if voter intent can be ascertained. But at this point, demanding accuracy from either side is about as silly as demanding, well, demanding someone punch their chad all the way through.

  “All of this is unfair and unacceptable,” Baker says. “It is not fair to change the election laws of Florida by judicial fiat after the election has been held. It is not fair to change the rules and standards governing the counting or recounting of votes after it appears that one side has concluded that is the only way to get the votes it needs. It is simply not fair, ladies and gentlemen, to change the rules either in the middle of the game, or after the game has been played.”

  It’s a litany of whining that only a Texan could make sound intimidating. When the Connecticut-born Bush tries it tomorrow—“Make no mistake, the court rewrote the laws. It changed the rules, and it did so after the election was over”—he doesn’t quite pull it off with same machismo. And how could he? After all, it’s daddy’s friend who’s running the show down there, bailing him out, just as it’s been for W. all his life.

  12

  “ARREST HIM! ARREST HIM!”

  Tomorrow’s Thanksgiving, and though some, like DNC spokeswoman Jenny Backus, will feast on wings from the Tallahassee Hooters, others—like David Boies—are on their way home for a real holiday dinner.

  But before he leaves, Boies is asked if his charter plane can make one stop on its way back to Westchester County, New York: Fort Lauderdale. The Gorebies want him to convince the Broward County canvassing board to ignore Republican entreaties that their chad standards are too loose. Since Boies’s daughter Caryl lives in Hollywood, Florida, and he wants her to come to his Thanksgiving feast in Armonk—joining his wife, their two kids, and two other kids from a previous marriage—he’s happy to make the fly-by.

  In his many daily phone conversations with Gore, Klain is always a bit amused, a bit touched, by his boss’s closing line. “We’re gonna win!” Gore always signs off.“That’s right, sir,” Klain dutifully responds.“No, I mean it,” Gore says. “We’re gonna win!”

  But it isn’t until this morning, Wednesday morning, that Klain thinks that his boss might actually be right. The counting is going on in all three counties, the Florida Supreme Court has told Harris that she has to accept the tallies, Boies is off to fend off the GOP attackers in Broward….Maybe they actually can win, he thinks.

  Not that all the Gorebies are content. In Palm Beach, for instance, the Boston Boys think Burton is disqualifying clear and legitimate votes. The Palm Beach canvassing board is still using the “two corner” rule, despite the fact that LaBarga told them not to use any specific rules. There are other controversial calls. Burton vetoes any pinhole-marked chad, though the Florida Supreme Court Tuesday r
eferred to the Pullen case in its ruling, and in Pullen, pinholes were considered votes. A ballot is ruled an overvote despite the fact that the voter has apparently written “mistake” over one hole having also punched the Gore hole. Burton’s argument was that, according to LePore, this was a precinct where the voter could have obtained a new ballot. “Also,” Burton explained, “there is no evidence who put the writing on the ballot.” Burton also leads the charge against absentee ballots where voters attempted to correct any mistakenly punched holes with tape, then punched for the right candidate.

  While LePore agrees with this, the Gorebies strenuously object. After all, as a Dem points out, “when the ballot is placed in the envelope, the voter has to sign. The presumption that he knows that—”

  “It could have also been the guy sleeping, and his wife said, ‘I don’t want to vote for that guy,’ and who knows?” Burton interrupts. “We don’t know. That’s why I’m finding an overvote, and I have been consistent.”

  It isn’t the strongest argument, but to Burton it makes sense at a moment when so much else doesn’t. Like his colleagues, Burton is exhausted and starting to numb. At the beginning, this was hectic but a tad exciting; after all, this was democracy at stake. They were in the service of their nation’s highest ideals! But it is starting to feel less like a heroic public service and more like taking both a bullet for Uncle Sam and unfair and undeserved heat for trying to make sense of a bunch of ill-conceived, poorly written, and completely confounded election laws courtesy of those Einsteins in Tallahassee. The Boston Boys think that Burton’s purposely working against them. They look at Burton and see a judge trying to curry favor with Jeb. They view his outbursts against Wallace and Harris as Oscar-worthy performances. Thus, the Florida Democratic Party files an emergency motion in LaBarga’s Palm Beach courtroom, seeking a clarification of his November 15 order. They drag Burton’s ass before LaBarga to make him testify as to what he’s doing.

  “The ballots we have looked at are of such wide variety of dents and dings and marks,” Burton testifies. “I mean, to be honest with you, some of us leave scratching our heads: ‘How did this even happen?’ We have attempted to define what the clear intent of the voter is.”

  If the dimple is only for president, they don’t count it.“If on cards where a couple or two or three and four, and we don’t have any set numbers, are showing indentations or not quite full punches, then we’ve taken the position that that does show the intent of the voter, in that this person, obviously, had difficulty punching out.” Burton admits that when it came to automatic inclusion, they did change from one-corner to two-corner, which can be seen as more restrictive. But they only did that because Broward County had that standard at the time, and they were following Broward’s lead. “And I guess just recently they’ve gone back, so now they’re going to look at dimples. So to be consistent in this election has been a very difficult task, to say the least.”

  Burton doesn’t say what’s really on his mind about Broward’s change in standards: he thinks it looks bad, it looks like the Democratic fix is in.

  “Some [ballots] are questionable,” Burton concludes. “Some are close. Some we need to look at. Some we need to see what’s going on. I mean, in all candor, determining intent from a ballot card is impossible. Would I like for Judge LaBarga to tell us, ‘Canvassing board, if there is an indentation, you count it. Or if there’s only one, you don’t count it’? Absolutely. And we would follow whatever Your Honor says.”

  In his subsequent ruling, LaBarga tells Burton and his colleagues that their continued per se exclusion of votes is wrong. But he doesn’t give them any specific, clearly delineated standards. He references the Pullen decision, quoting the Illinois Supreme Court ruling that voters who had problems with their ballots and styluses “should not be disenfranchised where their intent may be ascertained with reasonable certainty,” since “such 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.” LaBarga even takes the extra step of referencing the Massachusetts Supreme Court ruling Delahunt v. Johnston, noting that the “court found unpersuasive that voters may have started to express a preference in a candidate, made an impression on a punch card, but pulled the stylus back because” they had second thoughts. Of course, Delahunt and Johnston were the only ones on that ballot, so undervotes for that race were far less likely.

  But even with all of this, LaBarga doesn’t give the board any specific, clearly delineated standards.

  Not helpful.

  In Broward, GOP attorney William Scherer has presented to the Broward County canvassing board a sworn statement from a local voter, William Rohloff, who claims that he almost voted for Gore and withdrew the stylus at the last minute. “If you want to count that as a vote for Gore, you disenfranchise him,” Scherer says. “As you go down this journey as to how you divine voters’ intent, remember William Rohloff.”

  But Boies calls such claims nonsense. “If you hear hooves in the background, your first assumption is not that you’re being pursued by zebras,” he says. Boies advises Lee, Gunzburger, and Rosenberg to ignore Rohloff. The real issue is the type of ballot.

  “Throughout Florida the counties that use punch-card ballots have two or three or four or five times as many undervotes as the counties that use optical-scanning ballots,” Boies says. This isn’t because punch-card-county voters are less interested in the presidential race, Boies says. It’s because punch-card machines are “inadequate.”

  “I understand why Governor Bush’s advocates want to distract from the natural and logical and obvious implication of that indentation,” he says, but in Texas, Illinois, California, and Massachusetts, a dimple can be considered a vote.

  The Miami-Dade canvassing board meets at 8 A.M. Its members are concerned.

  Since they were the last ones to begin the hand recount, news of last night’s Florida Supreme Court ruling wasn’t so great, giving them a deadline of Sunday at 5 P.M.—or Monday at 9 A.M.—that they never planned on meeting. And even if they had planned on it, Leahy thinks doing so would be flat-out impossible. They would have to work ninety-six hours straight, on a holiday weekend, and they’ve already had a rough go of it in terms of finding county volunteers. They still don’t have full staffing scheduled for Sunday.

  Then there’s option B: counting just the 10,750 undervotes.

  “If we, the canvassing board, did approximately three hundred ballots an hour—which is pushing it, but possibly doable—it would take us about thirty-six hours to do that,” says Leahy. He asks the county attorney whether that’s “a viable alternative.”

  Option C is to just stop the count right now. “But given what the board has already decided, I’m not sure that that’s a practical alternative at all. We have already determined there are some votes in the undercounted ballots.”

  Leahy suggests that they all move up one floor, to the tabulation room on the nineteenth floor, where thirteen IBM punch-card counting machines stand like soldiers. Not all of the undervotes were separated out on Sunday—there are still about 119 precincts remaining that need to be sorted. If they go up to the nineteenth floor, they can separate the undervotes from the rest of the ballots and actually assess some of the undervotes while doing so. The room is small, so the canvassing board, Leahy’s staff, and two observers from each party will be the only ones allowed in. There is a window, so the media can watch from there. A court reporter can be in there, too. A couple pool reporters, perhaps.“I think it’s doable,” Leahy says.

  GOP attorney Bobby Birchfield—fresh from Mississippi, where he has just lost a case defending a campaign-finance loophole on behalf of big business * —says that the Bushies are willing to work with the canvassing board on crashing on the full hand recount, and they are certainly not opposed to stopping the whole thing. But option B is simply not in the statute, he says, and you guys ruled against doing it way back wh
en the Democrats first asked you to. Additionally, Birchfield says, “the first two hundred precincts or so, our statistics indicate, voted very heavily for Mr. Gore. There are going to be other precincts in the county that voted very heavily for Governor Bush.” So you can’t include votes from those first precincts that were hand-counted, since that’s simply unfair.

  De Grandy seconds that. Black precincts have been counted one way, he says, and now you’re discussing doing Hispanic precincts a different way. This will be a blatant violation of the Voting Rights Act.

  And on this issue, De Grandy has more than a little credibility. During the reapportionment battles of the early 1990s—which Carvin, Ginsberg, and Olson worked on a great deal for the RNC—plans to carve up Florida’s 23 U.S. House districts, and the state legislature’s 40 senate and 120 house seats, were hotly contested.

  After the legislature’s 1992 redistricting plan was laid out, many Cuban-Americans resented what they perceived as an inequality. Then–state representative De Grandy sued the legislature on two fronts.

  On the congressional front, De Grandy wanted an additional Cuban-American congressional seat and three African-American congressional seats. A panel made up of three appellate court judges found in De Grandy’s favor, and as a result, the first African-Americans since Reconstruction were elected to the house—Brown, Meek, and Hastings—and Lincoln Diaz-Balart joined Ileana Ros-Lehtinen in the Cuban-American congressional caucus.

  More fractious, however, was De Grandy’s suit against the legislature for another Hispanic state senate seat—because this threatened to come at the expense of an African-American state senate seat. Hispanic-Americans’ apportioned state house and senate seats in Miami-Dade County were of roughly equal proportion to their county voting-age population (about 45 percent of the seats for 46.6 percent of the population). African-American advocates pointed out that Hispanic seats were out of whack with the proportion of their population that had achieved citizenship (33 percent).