by Jake Tapper
Not that they don’t have an argument.
Since the point is to get Bush votes, right off the bat Bartlit dismisses the Bushies’ suit against Clay County, which then takes the 17 absentee ballots it rejected last week and accepts 14 of them. Twelve of them are for Bush.
The lawyer for Bay County asks Bartlit if the Bushies are going to dismiss their suit against his canvassing board, too, since the board members just reconsidered 12 absentee ballots, resulting in a net gain of 2 votes for Bush. But that’s not good enough. “We still have differences with Bay County,” Bartlit says. And Escambia, Dade, Okaloosa, Collier, Leon, Pasco Counties, etc., etc.
The list goes on. Fred Bartlit wasn’t brought here to make it easy.
A comprehensive analysis of the GOP’s fight for the inclusion of overseas absentee ballots shows that it’s based more on the desire for Bush votes than any concern for the rights of Americans serving their country abroad. One case in point: Broward County discarded only 6 overseas absentee ballots because they lacked postmarks. Still, GOP lawyer Craig Burkhardt of Spring-field, Illinois, argues vociferously that Lee and the board include them.
Lee is already suspicious of Burkhardt, * who is clumsily obvious about his partisan intentions. For example, Burkhardt wants to see where the postmark on the envelope is from before he decides whether or not to argue in favor or against an absentee ballot’s inclusion.
“You can’t do that,” Lee would say to him.
During this week, when absentee ballots are being reconsidered, the Broward County canvassing board learns that 4 of the 6 absentee ballots rejected because they lacked a postmark were without such because they’d been delivered to D.C. in a diplomatic pouch. Two were from the U.S. Embassy in Bulgaria, two from the embassy in Fiji.
You have to count them! Burkhardt ordered Lee.
OK, so they did.
Four Gore votes.
Two days later, Lee opens a letter from Sullivan & Boyd, a Republican-affiliated law firm in Jacksonville. Somehow this firm found out about the 4 votes. And G. J. Rod Sullivan, Jr., representing GOP voters in Nassau and Duval Counties, asks “that the Board revisit its decision to accept these ballots,” or else his clients might take the canvassing board to court, for a contest proceeding to disenfranchise these overseas voters.
Lee just shakes his head. Unbelievable, he thinks.
At NavObs, the vice president is fixated on the Miami-Dade mob.
He wants every link torn apart, he orders still photos to be reproduced from the news footage, and a montage video about the protest to be cut by media man Bill Knapp. Knapp’s video intersperses still photos of the protesters with text stating their GOP jobs. Copies are distributed to the Wall Street Journal and others.
Gore spends his days buried in the minutiae of every aspect of the case. Camped out in his library—which has a TV, several comfortable couches and chairs—or, more likely, his dining room, Gore e-mails his staffers, trades briefs, talks to everyone he can. During the campaign, his sphere of advisers outside his family was pretty limited: Daley, Carter Eskew, Shrum, Devine, Lieberman. Now it’s grown to dozens. He and Klain talk twice a day. He and Whouley once a day. He’s taken matters into his own hands, for better or for worse.
The presence of an old reporter pal, trench coat–wearing Wendell “Sunny” Rawls—a Pulitzer Prize winner—is noted by some of the staffers. The DNC kids have taken to referring to Rawls as “The Equalizer,” based on the one-hour CBS 1980s crime drama about, according to the show’s promotional materials, “an ex–Company agent who applies his dangerous and often deadly skills to helping people who have nowhere else to turn.”
At the DNC, The Equalizer researches the Miami-Dade thugs while also working on the link between the voting-machine manufacturer and companies in Texas. Over Thanksgiving weekend, one senior Gore adviser, after talking to the vice president, sends out this typo-ridden note to DNC researchers:
Subject: note from conversation
Message:
check out company that designed and produced the ballot in Palm beach. Based in Little rock. Two factories that subcontract. One in ARK, one in Texas.
Need to confirm that, read it the week after the election.
Research the Little rock gazette, from Nov. 8 therougth the 12th, present time. Controvsery hit the butterfly ballot. Local paper did something on it.
Find out where the subcontractors are. If one is Texas, zero in on that. Find out who runs it, contributions. Etc. same thing with Little Rock contractor.
While Gore is almost too involved, Bush is about as hands-off as a guy can get while still having a pulse. He splits his time between his ranch in Crawford and the governor’s mansion, exercising, quietly preparing his transition team, letting the man he now refers to as “General Baker” run the show completely.
“What we’re asking this court to do,” Bartlit says, “is to hear some of the things that have taken place. And send an order down to these counties, simply saying, ‘Will you please take’—not ‘please’—‘Will you take another look at the ballots under these circumstances, given the changed events that we’ve seen in the last week?’”
Judge Bubba Smith seems underwhelmed with Bartlit’s presentation. Bartlit doesn’t know if he’s just having a bit of fun with him or what; Beck thinks that Smith is also a bit clueless, he keeps talking about how he doesn’t understand how and why the federal government can review Florida election laws before the laws become official. It’s a technical point, and a weird thing for Smith to keep harping on, since no one else has a problem with it, but it makes Illinoisian Bartlit seem even more like a fish out of water.
“There’s no state or federal law that provides for a ten-day extension for receiving overseas ballots, is there?” Smith asks.
“Yes, sir,” Bartlit says. “There’s a rule.”
“That’s not a law, that’s a rule,” Smith says.
But it is a law, Bartlit thinks to himself. It’s a rule that’s part of a consent decree, which is binding. True, it’s not a law passed by the legislature, it’s a judge-made law. But it’s still a law. But Bartlit knows better than to argue any more on this point.
There are other issues where Bartlit’s not exactly scoring points.
“So we say if it has a postmark or if it has no postmark because of the military exigencies, Your Honor, if it doesn’t have a postmark, but it’s signed and dated no later than the date of election, it should be counted,” Bartlit says. “That’s all we’re saying.”
“Well, you’re saying quite a bit,” Smith says.
Another Bartlit anecdote is a disaster. “This is hearsay, but we’re receiving e-mails and phone calls from people on carriers in the Gulf saying, ‘I sent my ballot in, and I heard that it’s not being counted,’” Bartlit says. “So, it’s not time of war, but it’s not—for those fellows, and those young women—it’s not time of peace either.”
“Well, we certainly want every proper ballot to be counted,” Smith replies. “But we can’t resolve this presidential election out of your hearsay suggestions.”
Summers and another Bush attorney, George Meros, decide to step in. Bartlit’s getting the shit kicked out of him.
In a way, it’s hardly his fault. This case was a dog to begin with. The more damning presentations, however, come from the county canvassing boards that Bartlit is taking to task; they argue that they were just following the law, and frankly they seem to know a bit more about it than Bartlit does. Says Ron Labasky, representing Leon and Pasco Counties, “We believe we all have applied the law fairly and directly, and that any ballot that was not counted didn’t meet the criteria of either state law or federal law.” Says Michael Chesser, representing Okaloosa County, “We think we have done exactly what the law requires us to do. I think my canvassing board went far beyond what they thought perhaps they would be required to do. I can tell the court that my canvassing board has seen no memoranda from anyone.”
Chesser makes sure tha
t everyone knows that their disagreement with Bartlit and the Bushies has nothing to do with party label. “By registration and by voting practice, Okaloosa County is highly partisan” for the GOP, he says. “It is a home to Eglin Air Force Base, which is the largest air force base in the world….While it may be possible for some folks in this room to be highly partisan, it is entirely inappropriate, I would submit, either for the court—and I would never suggest that it would be—or for a canvassing board to let partisanism [sic] enter into what they do.”
Some of the counties’ attorneys even seem offended. “I can tell you unequivocally, with regard to what my client believed the law to be, there was no confusion whatsoever,” says Collier County’s Wayne Malaney. Adds David Tucker from Escambia County, “We counted those ballots; our canvassing board did count those ballots.”
“The court will review what’s been presented and enter a written ruling based upon that, but without any proof that any of these canvassing boards have not complied with the law, the court is very hard-pressed to grant any relief,” Smith says.
Before the day is over, the Bushies will quickly withdraw the suit altogether. After all, nine of the fourteen counties contact the Bush legal team and tell them that they’re going to go along with what they want them to do. The Bushies take their suit directly to the five remaining counties, away from Bubba Smith. To Hillsborough, Okaloosa, Pasco, Orange, and Polk Counties they go, in search of votes. And the trolling goes well. The suit may not have been the strongest case on the law, but it serves its political purpose.
An anti-Gore rally is held in military-heavy Pensacola. Elections supervisors are bombarded with angry, clearly coordinated phone calls and e-mails. In Duval County (Bush 152,098 votes, Gore 107,864), the canvassing board reviews the absentees and gives Bush 20 net votes. In Brevard County (Bush 115,185, Gore 97,318)—home to Cape Kennedy and Patrick Air Force Base—Bush gains 8 net votes. Late ballots are accepted in Santa Rosa (Bush 36,274, Gore 12,802) and Escambia (Bush 73,017, Gore 40,943) Counties—the latter of which gives Bush 36 net votes. The Santa Rosa County canvassing board accepts 2 ballots with postmarks of November 8, the day after the election, and 5 ballots that arrived after November 17. Clay County (Bush 41,736, Gore 14,632) accepts 2 votes that arrived by fax.
Eventually, Bush will pick up a net of 176 votes by Thanksgiving weekend—Unger refers to the operation as “Thanksgiving stuffing.” And Bartlit will estimate that at the end of it all, the suit shakes out maybe 300 to 400 net votes for Bush. * It goes without saying that no one on the Bush team will admit to knowing anything about the conference call, where the drumming up of illegal post-election ballots was discussed.
More immediate good news for the Bushies on Friday, November 24: the SCOTUS will hear arguments on December 1. Both liberal and conservative legal scholars are shocked; this seemed like the kind of case that the SCOTUS always stayed away from. Three who are truly stunned are junior partners of Bartlit Beck, in Tallahassee to work on the case; Shawn Fagan, who clerked for Rehnquist, Sean Gallagher, who clerked for O’Connor, and Glen Summers, who clerked for Scalia, all can’t believe it. They didn’t think their bosses would consider this case to be in the SCOTUS’s jurisdiction.
SCOTUS doesn’t buy all of the Bushies’ arguments—the justices are not interested in the equal protection argument, for example. But they are interested in the 3 U.S.C. 5 deal, and they want to hear more about the Florida court’s new deadline being “inconsistent with the Article II, Section 1, clause 2 of the Constitution.
Plus: Tribe and Olson get a writing assignment.
The parties are directed to brief and argue the following question:
What would be the consequences of this Court’s finding that the decision of the Supreme Court of Florida does not comply with 3 U.S.C. Sec. 5?
The briefs of the parties, not to exceed fifty pages, are to be filed with the Clerk and served upon opposing counsel on or before 4 P.M., Tuesday, November 28, 2000.
Class dismissed until Friday, December 1.
To get to Broward County Courtroom 6780—Judge Lee’s turf—you have to go through security, take an elevator to the third floor, walk down a long hallway, make your way past another sheriff’s deputy, and then take yet another elevator to the sixth floor.
Republican governors like Frank Keating of Oklahoma, Bill Janklow of South Dakota, Mark Racicot of Montana, and Christine Todd Whitman of New Jersey have all done this and now saunter in and out of the room. Republican representatives Steve Buyer of Indiana and Duncan Hunter of California also show up to watch the hand recount.
Lee calls them “the pontificators.” Gunzburger calls them “the spinmeisters.” To them, the GOP officials aren’t there to observe the process, they’re there to bad-mouth it. The Republican observers who have been there the whole time know that the process has been fair and open, Lee thinks. These bigwigs are simply hypocrites. One time, Michigan governor John Engler walks in, sees a dimple for Bush, and agrees that it’s a clear vote for his fellow Republican. Then he goes outside to the press and derides the notion of dimples.
And the Republicans keep coming. Bush staffers like Mehlman, media coordinator Megan Moran, and spokesman Ray Sullivan walk the halls and express concern to the media. “It’s clear to anyone who closely observes Broward County that the majority of the canvassing board, particularly Commissioner Gunzburger, is throwing all standards aside to arbitrarily increase the number of votes for Vice President Al Gore,” Sullivan says.
Democrats are there, but they are smaller in both stature and number. Representative Nadler of New York, Rep. Alcee Hastings of Florida, and Sen. Barbara Mikulski of Maryland enter the courtroom, then exit. A Gore Recount Committee aide explains that Hastings is here to appeal to black voters, Mikulski to women, and Nadler to Jews. Typical clueless Democrat balkanization.
Inside the courtroom, the board—surrounded by party observers—tries not to pay much attention to the in-and-out of reporters, the media, and the half-dozen or so members of the public.
“That’s a Gore vote,” says Gunzburger.
“I agree,” says Lee. “OK, that’s [ballot number] A024, plus one Gore.”
I ask Keating why he’s here.
“As all of us, we’re here to encourage that the process be fair and final,” he says. “It will be final, but it can never be fair when you are re-recounting exclusively Democratic counties with almost exclusively Democratic supervisors.”
Keating also has harsh words for the process of assessing voter intent by studying the chad.
“They are attempting not just to divine the intent of the voter, but to invent,” he says. “Listen to the language in there. They say ‘intend to vote Bush,’ or ‘intend to vote Gore.’ How do they know?
“It’s one thing to intend to vote, and quite something else to vote,” he says, adding that he “saw chad on the table.”
Janklow, sipping a Coke and wearing a clearly underused Champion work-out suit, expresses astonishment at Florida’s county-by-county standards.
“How can you have one standard in Fort Lauderdale and another standard in Miami?” he asks. “And the three different [Broward] officers have three different standards,” Keating points out.
This is true. Gunzburger counts every dimple. Lee counts them only if three or four other major races on the ballot also have dimples. Rosenberg counts them only if about half the ballot is dimpled. This does, of course, end up meaning that only ballots with a pattern of dimples are counted as votes. But the problems that could come with Florida’s lack of a specific standard have never been so well illustrated.
Outside, the crowd is chanting.
“Na na NA NA, Na na NA NA, Hey, hey, hey, Gore lies!”
A Republican state senator from western Maryland, Alex Mooney, twenty-nine, bellows on his megaphone. “We carried almost the whole darn country except for a few cities!” Mooney yells, apparently unim-pressed that Gore actually won the popular vote by more than 500,000 votes. M
ooney proceeds through a list of states Bush won—“Who won Alabama?!” “BUSH!” “Who won Mississippi?!” “BUSH!”—before arriving at “And who won Florida?!”
Another “volunteer” (read: Bush campaign staffer too chickenshit, or embarrassed, to admit who he is) distributes dozens of free T-shirts that read “GOREY Mess.”“I’m just a volunteer,” he says when I ask him who he is and who paid for the shirts. “I just bring ’em.”
The black hecklers from “Freedom Fighters International,” who shouted down Rev. Jesse Jackson a week and a half ago, suddenly show. Their leader, Michael Symonett, denies that they have been paid to shout down Democrats. Symonett says that he’s rich, owns his own Jaguar, and no one could pay him to be there if he tried.
Inside, a controversy erupts when the Broward County public-information officer mistakenly refers to a batch of absentee ballots that haven’t been counted yet. These are actually ballots that have already been counted, lumped together since absentee ballots aren’t segregated by precinct. The plan was to recount all of them at the end. But the public information officer makes it sound far more mysterious, and rumors swirl throughout the courthouse and on conservative media outlets that Broward just “found” 500 new votes from Israel.
Rosenberg makes a motion to allow GOP representatives to argue that the absentee ballots should not be reexamined. The motion dies for lack of a second. Scherer and Governor Racicot object. Lee is already annoyed with Racicot, having seen him on TV bad-mouthing Lee by name as inventing votes for Gore. “I’ve been on the canvassing board several years,” Lee tells Racicot. “I’ve had so many speeches from so many of you folks that I don’t care to hear any more, with all due respect.”