by Jake Tapper
• An election contest would be extremely strong and stand a great chance of success. We will need surrogates to make this point again and again over the weekend.
• Gore is weighing his options, with one overriding goal in mind: Doing what is best for the country.
• Gore’s approach throughout this entire situation has been contrasted sharply with the opposition’s win-at-any-cost, the-voters-be-damned strategy.
To the Gorebies, clearly, the Miami-Dade incident is the turning point in the post-election wrangling. Their thinking: Gore would have gained around 150 votes, propelling him to victory, a stronger position in the contest provision (Bush would have been the one contesting), and the SCOTUS would have been harder-pressed to issue the divisive, controversial ruling that it eventually handed down.
The one problem with this theory: it’s questionable that the Gore votes were there. At least in the 10,750 undervotes.
In early December, I sit down with Cuban-American political consultant Armando Gutierrez, who was doing the math, showing me that there were plenty of undervotes in the Cubano precincts as well. Eighty undervotes in Opalocka precinct 246, he calculates, where Bush beat Gore 543 to 530; 58 in Hialeah’s precinct 310, where Bush won 825 to 329; 78 in precinct 311 on West 4th Avenue, where Bush won 1,067 to 431. In the precinct that he worked on Election Day—precinct 543 at Gate 14 at Orange Bowl Stadium—there were 898 Bush votes, 351 Gore votes, and 106 undervotes, which would have presumably cut the same way, roughly 3 to 1 Bush. A subsequent analysis by the Palm Beach Post bears this out. 1 Inspecting the 10,750 undervotes under the loose standard the Miami-Dade canvassing board had been using before it all shut down, the Post ruled that Bush would have actually gained 6 votes had the count been completed, 251 new Bush votes to 245 new Gore votes.
However, when the Post counted the 5’s and 7’s—the more than 2,250 Miami-Dade ballots seemingly mis-inserted in the Votomatic machines, there were 1,023 punches for the nonexistent candidate at no. 7, and only 721 punches for Mr. Nobody at no. 5.
But those ballots were being set aside, and Young was planning on trying to convince the canvassing board to count these 2,250-some votes for both candidates.
Had these been counted—and who knows, perhaps Young could have been able to convince the board to do so—Gore would have picked up 302 additional votes. Though Leahy later tells me, “I don’t think the canvassing board would have changed its mind” on the 5’s and 7’s. “It was something for the [Democratic] party to use in a court case, in the contest.” But we’ll never know what would have happened, of course. At least in part because of the GOP protesters and the obstacle they put in the path of the hand count continuing, as well as who knows what else that influenced the Miami-Dade canvassing board.
13
“We’re fucked!”
Internally within the Bush legal team, the initial decision to push forward with the federal case—the one that landed before Middlebrooks—was hotly debated. Did they really want to be the first to file a lawsuit? Did they really want to be asserting that the federal government should involve itself in a state’s election process? Baker calmly ruled that the insurance policy was necessary, but there were those on the other side of the debate.
On the other hand, the decision to appeal the Florida Supreme Court’s ruling to the U.S. Supreme Court isn’t even a close call.
The brief, chiefly prepared by Olson, Carvin, and Olson’s colleagues at Gibson Dunn & Crutcher, is filed Wednesday, November 22. It requests a writ of certiorari, * throwing every argument under the sun at the Florida Supreme Court ruling.
The Bush lawyers raise the 3 U.S.C. 5 issue. They also argue that since the extension was essentially a new law, it’s “inconsistent with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State ‘in such Manner as the Legislature thereof may direct.’” This decision, they claim, was also inconsistent with the 14th Amendment. Lastly, the Bushies say, “the use of arbitrary, standardless, and selective manual recounts that threaten to overturn the results of the election for President of the United States violates the Equal Protection or Due Process Clauses, or the First Amendment.” *
Something’s gotta stick. Especially with a U.S. Supreme Court that consists of seven Republican appointees.
Tribe, brought back to work on the vice president’s response, writes that this is a task that has been expressly delegated to the state of Florida by the U.S. Constitution’s command in Article II that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” (Emphasis added.) The brief “thus is a patent attempt to federalize a state law dispute over whether a manual recount is authorized and appropriate.”
Equal-protection claims are nonsense, Tribe writes; “manual recount procedures, like those that are included in Florida law, are a completely ordinary mechanism for ensuring the accuracy of vote-counts in close elections.” Meanwhile, Tribe writes, “different counties within states routinely use different equipment and different ballots for the conduct of their elections”—why wouldn’t that fact be considered an equal protection violation?
If the SCOTUS cuts in, Tribe maintains, “it would only diminish the legitimacy of the outcome of the election.”
“I have a brief statement to make,” house speaker Tom Feeney tells reporters on November 22. “I would encourage you to pay close attention to it.”
Feeney’s itchy. He’s been looking for a way to help Bush and put an end to it all since the day after the election, when Don Rubottom told him the legislature might have the power to step in. And the Florida Supreme Court just opened the door and invited him into the chaos.
“In my view, the court’s ruling indicated the tremendous lack of respect that the Florida Supreme Court has for the laws of the state of Florida and the legislature,” Feeney says. The court “could have given us a resolution. Instead, I fear, it has given us a potential constitutional crisis.”
Deadlines exist to be followed, the state house speaker says. But the court doesn’t seem to have any respect for the election scheme as designed by the legislature. This is just the latest in a long list of feuds between the two bodies—a crossfire that Al Gore has run straight into.
Feeney’s charged by Rubottom’s research and the work his aide’s done with legal scholars. Rubottom has been in touch with UC-Davis professor Michael Glennon, who wrote a November 19 op-ed in the Washington Post that Rubottom liked about “a curious provision in the 1887” Electoral Count Act, which “makes it possible for the legislature of a state to resolve disputes concerning the validity of its electors. If a state fails to make a choice on Election Day—because, for example, of recounts, court challenges, or the need to count absentee ballots—the law provides that ‘the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct.’” After reading that, Rubottom called Glennon, who advised them to immediately step in.
Rubottom then called around, looking for lawyers to hire. Over at the Bush Building, Jimenez and John Manning recommended a University of Utah professor named Mike McConnell. And though McConnell couldn’t do it, he recommended Harvard Law professor Charles Fried, a former solicitor general in the Reagan administration and Bush–Cheney campaign adviser. Fried gladly agreed to come on board ($350 an hour, capped at $60,000), but he was savvy enough to realize that—as a former Massachusetts supreme court justice who ruled in favor of counting dimples in Delahunt—the state house might want a legal spokesman who didn’t have to defend such a ruling. So they also brought in his Harvard Law School colleague Einer Elhauge.
Elhauge is an antitrust Harvard Law professor who wrote a November 20 op-ed in the New York Times supporting Bush’s SCOTUS case against the Florida canvassing boards. “The Bush lawsuit is not against manual recounts,” he argued, “
but against an election system run by partisan county officials who lack any objective standard for whether or how to conduct manual recounts, and who have allegedly exercised their power in a discriminatory fashion.”
“I have spoken to a prominent law professor today,” Feeney says, referring to Fried. “I have invited him and have issued an opportunity for him to decide to give the Florida house of representatives advice about our constitutional responsibilities, our options, and prerogatives. And until I have that advice, I don’t intend to take any further formal steps.”
Not publicly at any rate. But Frank Jimenez spends some time Wednesday with house republican leader Mike Fasano. When asked about this, Jeb’s spokeswoman, Katie Baur, tells reporters, “If the legislature were to call a special session, Frank would be the person solely responsible for advising the governor on the appropriate action.”
Waitasec. I thought Jimenez had recused himself to work for the other Bush. Unless of course they’ve dropped the pretense?
In the actual Pullen case cited by the Florida Supremes, Judge Francis Barth was ordered to reexamine twenty-seven ballots with all sorts of marks on them. Barth took the Illinois Supreme Court’s order to mean that dimples could count, but he didn’t say they necessarily would count. A hanging chad would be a vote, sunlight through the chad would be a vote, and a dimpled chad could be a vote, based on “other considerations of the ballot itself.”“I do not infer from that [the Illinois Supreme Court order] that there had to be a partial dislodgement in order for the ballot to be considered,” he said.
Barth tossed out nineteen ballots for having no clear intent, he accepted four ballots with pinholes in the chad, three with hanging chad, and one other, Remand Exhibit 19. He ruled that Exhibit 19 was a vote because of a pattern of seven other dimples on the same ballot—and not one clearly punched-out chad. He referred to the Delahunt case twice—in which the Massachusetts Supreme Court ruled that it wasn’t convincing that a voter would have come down to vote and not cast a vote for anyone.
On the other hand, Remand Exhibit 27 featured maybe twenty dimples, along with some clear punches, and Barth ruled that in that case the pinhole in the Pullen chad was not sufficient.
In entering the murky world of the chad rulings of Barth’s courtroom a decade ago, a couple things are clear:
the references by both Baker and the Bush talking points to the Illinois case being only applicable to “hanging chads” are dead wrong, either a mistake or a lie; and
the Chicago Tribune account of it all, which Boies is relying upon—“An indentation in the chad can clearly indicate the voter’s intent”—is too simplistic, whether the fault of the reporter or the source, Pullen attorney Michael Lavelle, or both.
On Tuesday night, Gore attorney Mitchell Berger seeks out Lavelle, after having read that day’s Chicago Tribune story. The team is disappointed that the Florida Supreme Court didn’t give them a specific statewide standard other than “intent of the voter.” But since the court did cite Pullen, the team thinks it would be a great idea to get Lavelle to sign an affidavit testifying to the fact that dimples counted in Pullen, as the Tribune story stated.
Shortly before midnight, Berger calls former Democratic committeeman Larry Suffredin, who suggests that Berger conference-call in Illinois state senator John Cullerton, who’s Lavelle’s buddy, and get him to phone Lavelle.
“Sorry for waking you up,” Cullerton says to Lavelle a few minutes later. He asks him if the Tribune story was correct today, and if so, if he minds if he gets a Gore attorney on the phone.
Sure, Lavelle says. No problem.
Berger gets on. “Is the story true?”
Yes, Lavelle says. Barth counted dimpled ballots.
“Do you have any records from the case?” Berger asks.
“No,” says Lavelle, “all I have is an abbreviated file.”
“Could you get the full file from the courthouse?” Berger asks.
“Well, since it’s ten years old, it won’t be in the courthouse, it would probably be in storage out at the warehouse,” Lavelle says. “That’ll take a couple of weeks.”
Lavelle is asked if he would be willing to sign an affidavit attesting to the fact that dimpled ballots were counted.
“Yeah, no problem,” Lavelle says. “That’s what happened.”
“That could be very helpful to us,” Berger says, because the Florida Supreme Court’s opinion today was very unclear.
Berger asks Lavelle how early he could start on it.
Well, I’ve gotta talk to my secretary, he says. “Certainly not before seven-thirty or eight, local time.”
“Well, the earlier you can get in the better,” Berger says. “I would sure appreciate it.”
Wednesday morning, Lavelle gets into work early, and there’s a draft affidavit waiting for him from the hyperactive Berger. “The trial court determined that seven (7) indented or dimpled ballots reflected the voter’s intent to vote for Pullen and one (1) indented or dimpled ballot reflected the voter’s intent to vote for Mulligan,” it says. After a few changes here and there, Lavelle signs it.
That afternoon, Tribune reporter Dan Mihalopoulos phones up Lavelle. He’s being told by Republicans that only ballots with light shining through the chad counted. Do you have any of those records left?
Lavelle doesn’t; he reduced his loads of paper long ago. He tells Mihalopoulos to check out the ballots. The warehouse where the records are kept is only a couple miles from the courthouse. If you get a hold of the PR person down there, maybe you can get a hold of the ballots, Lavelle says.
Two hours later, Mihalopoulos pages Lavelle; the courthouse employees have no idea what the hell case he’s talking about, they can’t find it on the computer. Lavelle gives him some more information and steers him toward the county division of the circuit court, which is a smaller division with better records.
Shortly after 5, Mihalopoulos calls Lavelle again. He found the file. While there, he also stumbled into Burt Odelson, who was Mulligan’s attorney in the Pullen case, who was just returned by the Bushies. “Mike, I’m sorry to tell you that it looks like the only ones that counted were the ones that had light through,” Mihalopoulos says.
“How many were counted with dents?” Lavelle asks.
“I can’t find any that were counted with dents,” the reporter says.
“Read me what Barth said,” Lavelle asks.
Mihalopoulos reads him a few snippets from the 155-page transcript, statements by the judge from the early part of the transcript before Barth starts actually assessing the ballots.
Mihalopoulos does not read Lavelle the excerpt that has Barth saying,“The light standard is not the litmus test, in my view. If there is a dent, a voter’s intent may be established from other considerations of the ballot itself.”
Mihalopoulos does not read Lavelle the excerpt that has Barth looking at Remand Exhibit 19, when the judge says that “the light standard shouldn’t be the only standard” while accepting the ballot because there are eight other dimples upon it and none that are cleanly punched out.
But what Mihalopoulos does read him, however, makes Lavelle panic. He thinks he’s issued an affidavit that could be construed as misleading. He never mentioned light passing through.
Mihalopoulos goes to write his story. He’s on deadline.
Cullerton calls Lavelle that night.
“I’m glad you called,” Lavelle tells him. He tells him the problem, that his affidavit could be construed to be misleading. After they talk a bit about it, they get Mitchell Berger on the phone.
I think I was wrong, Lavelle says to Berger. Dimpled ballots counted, yes, Lavelle says, but according to the Chicago Tribune reporter, it was only dimpled ballots with pinpricks of light through the chad. So my statement was incomplete.
“We’re fucked!” Berger says.
“I’m sorry about that,” Lavelle says.
“We have got to get an affidavit on file!” Berger says, explaining that th
e Gorebies have already used the affidavit before the Broward County canvassing board and submitted it to LaBarga. “We have got to correct the record!” Berger continues. “We can’t let this sit!”
Lavelle arrives early at work on Thursday, November 23. He writes a corrected affidavit, saying that he had a “mistaken recollection” that all dimpled ballots counted. He says that he was told by a Chicago Tribune reporter that the only ballots that counted were ballots with light shining through. At this point, Lavelle still hasn’t read the transcript.
That morning’s Tribune has a story by Mihalopoulos and D.C.-based reporter Jan Crawford Greenburg, with the sub-headline “Illinois Case Offers Shaky Precedent.” Pullen “may not be the legal home run they [on the Gore legal team] believe will aid his quest to win Florida’s 25 electoral votes and the White House, an analysis of the ruling shows,” the Tribune story says. Barth “exclude(d) dented ballots, since he had decided he could not reasonably determine the voters’ will by examining the ballots. In fact, in the Illinois case, the dented ballots were not counted at all.”
In fact, this is not the case. At the very least, the reason that Barth accepted Exhibit 19 was subject to debate, and should have prevented the Tribune from making any definitive ruling along the lines of “in the Illinois case, the dented ballots were not counted at all.” And of course, Mihalopoulos played a rather sizable role in establishing the “shaky foundation” * referred to in the story’s sub-headline.
On Thursday, November 23, in Fort Lauderdale, Broward County Courtroom 6780, a GOP attorney named Michael Madigan shows up at the canvassing board with the new affidavit and the September 1990 testimony from Barth’s courtroom. “You’ve been provided a false affidavit and we have the court transcript, which demonstrates that dimpled ballots or indented ballots, contrary to what Mr. Boies told you, in Illinois were not accepted!” Madigan says excitedly. “It’s reported in this morning’s Tribune!”