by Jake Tapper
But Gore, Klain, and Boies swat the butterfly ballot case. Bob Bauer’s firmly convinced that the case has no merit; Coffey’s wishy-washy on it. And ultimately, they decide, there’s no time to try it.
Klain is more intrigued by the possibility of including the Seminole County case, and a similar lawsuit in Martin County, in the contest. Not because he thinks they’re winners—actually, of all the lawyers, Klain is one of the most skeptical of the legal merits of both cases. No, Klain wants to include Seminole and Martin for strategic reasons. He explains: Republicans have the luxury of being able to make one set of arguments in the Seminole and Martin cases—the intent of the voter is ultimate, you can’t throw out ballots because of hypertechnical adherence to the law—while they’re simultaneously making the opposite argument on the Miami-Dade and Palm Beach ballots. Klain wants to set up a situation where the Gore team would say—publicly and to a court—“Look, there are two ways to resolve this dispute. We can either say ‘count all the votes,’ in which case we’ll lose Seminole and Martin but we should get our votes counted in these two southeastern counties. Or we should have really technical and rigid Florida compliance rules, in which case maybe we don’t get our votes counted in the southeastern counties but the ballots should be tossed from Seminole and Martin.” The Republicans have been going on and on about different standards. Well, two can play that game, Klain argues.
Boies isn’t sure what he thinks about this. Since Klain first mentioned it, he’s been exploring whether or not he could make an understandable argument on the matter. But in the past few days, he’s been trying this spiel out on people, and he’s become convinced that nobody understands it as anything other than a bartering chip, which doesn’t play very well.
And Christopher doesn’t think including Seminole and Martin is a good call. “For the sake of your own political viability, we have to set a very high standard here,” he says to Gore. “We can’t have any tactical moves, there can’t be any long shots. We have to have the highest standards when it comes to the merits of the cases.”
Gore finally rules.
“Chris, I agree with your comments—with one exception,” he says. “I don’t care about my political viability. Joe’s political viability will take care of itself. But my political viability should be the least consideration here. I have much greater competing obligations. I have an obligation to the Democratic Party. And I have an obligation to the fifty million Americans who voted for me and Joe. And I have the highest obligation to the country and to the Constitution.
“I cannot imagine that there will ever be a revote in Palm Beach,” Gore says. “And I can’t imagine disenfranchising the people in Seminole and Martin Counties.”
A number of the lawyers are quite taken aback. This isn’t the Al Gore they’ve known—the cold, calculating, Faustian, self-centered s.o.b. who’s been running for president since 1993. They know it sounds hokey, they know that when they tell friends—especially journalist friends—about it, it sounds like horseshit. But, they think, Al Gore’s become a different guy as this whole thing has progressed. There’s something markedly different in the way Gore has been treating people, they think, in the way he thanks them, in the way he seems, well, nice.
And yes, it’s true, he didn’t particularly seem all that nice before.
Klain has sure noticed it, talking to him two or three times a day, the most he’s talked to Gore since he was his chief of staff. And Klain is frankly a little stunned to find Gore incredibly gracious, even sweet. He was grateful for everyone’s hard work, and he expressed it constantly. He would ask Klain all the time—is there anyone on the team whom he should call and thank? He would call their spouses. He called one lawyer’s mom who was on her deathbed. It was not a side of Gore people had seen in a long time. If ever.
It kind of mystifies Klain, who’d been shut out of GoreLand so coldly just over a year ago. But he’s happy to see it, and even more delighted to play a leading role in the crusade.
Whouley has noticed it, too. Gore has gotten into what Whouley calls a “please-and-thank-you” routine. He would call the field people, thank them, tell them he appreciated the sacrifice they were making. As Corrigan remarks to Whouley, “adversity does that to people.”
Speaking of adversity, on Monday, November 27, the Gorebies’ fears about the effect of Bush being certified come true. On that day, post-certification polls show that 60 percent of the American people are saying that this mess should end now and Gore should just concede. This includes a quarter of Gore’s own supporters.
Behind closed doors, Gore might be rediscovering himself, might be—might be—learning that there are principles more important than just winning. But out in the real world, his act is wearing way thin.
So the Gorebies decide that they need a full-frontal PR assault.
At around noon on Monday, leading congressional Democrats Sen. Tom Daschle of South Dakota, the Senate minority leader, and Rep. Dick Gephardt of Missouri, the House minority leader, make a great public show of their support for Gore. You gotta wonder just how sincere any of it is. Gore and Gephardt were once the bitterest of enemies; it isn’t overstating things to say that they hated each other. At one debate during the contentious 1988 presidential primaries, Gephardt compared then-senator Al Gore to Al Haig. Gore responded that in making that remark, Dick Gephardt sounded like Dick Nixon. And it’s safe to say they haven’t gone on any fishing trips together ever since.
But Monday afternoon in the Florida state senate hearing room, Gephardt casts that baggage aside. With Daschle, he holds a press conference—and then a totally staged conference call, with Gore and Lieberman in Washington, D.C.—just hours after Gore’s legal team formally files its contest papers. In the face of this controversial and unprecedented legal action—and amid rumors that certain Democratic members of the House and Senate are growing weary of Gore’s relentlessness—everyone holds hands and puts on a happy face.
Behind closed doors, however, Gore lieutenants are under the impression that Gephardt and Daschle are not totally with the program. They’re here today, they’ll defend Gore on the Sunday shows, but the message the Gorebies have discerned is that the VP shouldn’t push it when it comes to their involvement.
This is a problem. Gore doesn’t have the level and quality and number of surrogates that Bush does. Kerrey was great, but Butterworth and Sen. Bob Graham have basically been AWOL. When it comes to statesmen, the Democrats have a fairly weak bench. And it’s not as if the rising stars of the party—Sen. John Edwards of North Carolina or Sen. Evan Bayh of Indiana, for instance—are hopping up and down to make the case for Gore.
Whouley, too, is disappointed with his party. The girls and guys on the ground in Florida have been fuckin’ fantastic, he thinks. But they still don’t have a guy like Baker to run the show, they don’t have a warrior. He’s trying to serve as a sort of spiritual political leader of the operation—Baldick’s always referring to the ground troops drinking Whouley’s Kool-Aid—but he’s a bit demoralized. Though he loves Gore these days, maybe like never before. He’s just become an even guy, and nice. Really nice. One day he had Gore call a couple of his Boston Boys—Sullivan and Corrigan. No small thing to call Corrigan, since he’d been Dukakis’s field director when Gore ran against him in ’88. But Gore was fuckin’ great. He thanked the guys. Then he said to them, “Hey, when this is over, you can have whatever country you want.” The guys loved it. But it’s not enough. They need to be tough. They shouldn’ta backed off the absentee-ballot stuff, Whouley thinks. They need to be tough. They need to be brutal—just like the Bush guys are being.
Oh, well.
He’s happy to see Gephardt and Daschle down here, though.
“We support the contest filed by the Gore campaign this morning, asking that these votes be duly counted and certified,” Gephardt proclaims from behind the lectern in the Florida senate hearing room. “This is the right thing to do for the people of Florida, for the people of Am
erica and our democracy,” Gephardt says. “Al Gore and Joe Lieberman won the popular vote by over three hundred thousand votes * in the country. And they have a lead—they are three votes shy of a majority—in the electoral college. We believe that a full, fair, and accurate count will show that they won in Florida as well.”
Then the press is shepherded—like pigs into a slaughterhouse, one reporter gripes—to a small room, where Gore and Lieberman just happen to be having the casual conference call with Gephardt and Daschle.
Just a few guys rappin’, you know, no big deal.
“We were just given a new tally this morning that says that if we counted all the votes that have already been counted in some of the recount, we’d actually be ahead by nine votes, so we’re encouraged by that,” Daschle tells Gore. “I think there’s overwhelming support for your effort and a realization that if we completed the count, there is little doubt that you’d be ahead. So we wanted to come down and be as emphatic as we can that we support you and your effort, and we support this full and fair recount.”
The 9-vote figure that Daschle cites is actually outdated. It comes from subtracting a few clumps of votes (51 from Nassau; a new number they’re asserting came from the late Palm Beach County tally, 215 net Gore votes; 157 from the uncompleted Miami-Dade undervote exploration; plus 123 “Thanksgiving stuffing” votes) from the certified 537-vote difference.
But by now the “Thanksgiving stuffing” has been excluded. “We made the decision this morning not to do the overseas ballots,” Bash tells me, saying the team wanted “a clean, crisp contest action that just dealt with counting errors.” They are, however, hoping for a reexamination of 3,000-some Palm Beach ballots that the Boston Boys think Burton ruled against unfairly, and for a look at all of the 10,750 Miami-Dade undervotes.
So that 9-vote nonsense is, like, so two hours ago. But someone forgot to tell Daschle.
“Al and Joe,” Gephardt says casually on the conference call, “let me just add, that [as] Joe knows, we’ve been having many conference calls with the House Democrats. And they have been entirely supportive and continue to be entirely supportive of going ahead with this contest for the purpose of finding out how everybody voted in this election. Our members feel very strongly that this needs to be done.”
Daschle chimes back in with one of the lamest endorsements I’ve ever heard.
“Our colleagues were impressed with your offer to count all of the counties and to live with the results of that effort,” the soft-spoken minority leader says to Gore. “And to have that concept endorsed by the [Florida] Supreme Court also, I think, impressed a lot of our colleagues. As I’ve talked to a number of people, I think the fact that you’ve repeated it now a couple of times is also, I think, an encouraging sign that you’re willing to live with the results, and so are we….We just want to applaud your efforts and thank you for carrying on as you have so far.”
From Washington, the vice president’s voice buzzes in. “Thank you both for your friendship and for your participation in this,” Gore intones in his typical attempt at sincerity. (If you think Gore’s bad on TV, you should hear him on speakerphone.) “You and I believe very strongly that every vote has to be counted,” Gore says. “We hear statements on the other side quite frequently to the effect that we had a count and a recount and another recount—but that’s really beside the point.
“What we’re talking about is many thousands of votes that have never been counted at all,” Gore says, apparently referring to both the late Palm Beach County numbers, and the 9,000 or so ballots in Miami-Dade County that were rejected by the machines and haven’t been hand-counted.“The integrity of our democracy depends upon the consent of the governed, freely expressed, in an election where every vote is counted.
“I appreciate all the hard work that you guys are doing,” Gore adds.“And Joe is right here with me.”
Then Lieberman briefly peeps up. “Very briefly, thank you, both of you are leaders,” he says. “You have been steadfast and direct in the most encouraging way. Thank you for taking the time to go to Florida.”
As if the world needs another display of Democratic Kumbaya, minutes later, at 2:20 P.M., the Gore team arranges a conference call for reporters to talk to the two congressional leaders. At this point, Daschle has clearly been told that the 9-vote margin was no longer operable, because he’s dropped it. “We think that there may be a hundred votes that separate the two candidates,” Daschle now says. He notes that all the uncounted ballots and such will be available for review under the Freedom of Information Act, and surely someone will review them. “There will be an accurate count,” he noted, calling it “tragic” that the world might learn of this accurate number three or four months hence.“That’s in large part our message today,” he says.
Now this is an interesting argument, maybe the first one I’ve heard from the Gorebies for quite some time. Oddly, this tack—perhaps Gore’s most compelling argument for continuing the recount—originally comes from conservative activist Larry Klayman. On November 22, Klayman, head of the conservative organization Judicial Watch, secured the right under Florida’s sunshine law to inspect the Palm Beach County ballots. Klayman has been using his ballot access to allege malfeasance by what he deems are Gore-supporting ballot counters. “If Klayman can do that,” Klain realizes, “then of course the media will.” And sooner or later, the reasoning goes, it will be known who actually garnered more votes in Florida on November 7, officially or unofficially. The New York Times will have its tally, Klain reasons, as will the Wall Street Journal, Fox News Channel, NBC, CBS, CNN, ad infinitum. So with this as a given, Klain’s question is: Should the ballots be counted by judges now, before America officially has a forty-third president? Or should it be the New York Times and ABC News a few weeks after Gov. George W. Bush is sworn in?
And, assuming that Gore is shown to be the actual winner—which the Bush team clearly worries about, otherwise it wouldn’t be doing everything it can to stop the recounting—one has to wonder what kind of mandate will that leave Bush? Under this scenario, he could be revealed to be not only the popular vote loser by more than 500,000 votes, but not even the legitimate winner of Florida, except by a host of superior legal and political maneuvering.
Of course, Gore might not actually have all that many votes among the 10,750 undervotes of Miami-Dade. And there are 175,000 undervotes and overvotes statewide, which might end up indicating an even larger Bush margin of victory than his current 537-vote landslide. No one knows. But amid all of these unknowns, one thing is pretty clear: Americans will eventually know who actually won Florida. It’s just a matter of timing.
Klain will tell Tribe about this argument, and it will make its way into Thursday’s SCOTUS brief. But still, the Gorbies never make a move to have all 175,000 unread ballots examined.
Gephardt is asked: What about poll numbers that show that Americans want this thing to be over?
Gephardt says that their feelings are “based on the supposition that what the secretary of state said was accurate. When people find out… that this thing is really a fifty- or hundred-vote difference,” they’ll change their minds.
But Gephardt and Daschle soon take leave of Tallahassee. And then two Bush allies make appearances—two men who at no other time in this nation’s history would seem more powerful than either the United States Congress’ House or Senate minority leader. But they sure are BMOCs about Tallahassee today.
The first is state senate president John McKay—a Republican from Bradenton, just north of Sarasota—presenting a “friend of the court” brief to help Bush’s case before the SCOTUS. “Today the Florida legislature has filed an amicus brief asking the U.S. Supreme Court to stay part of the [Florida] Supreme Court ruling,” McKay says.“We firmly and unequivocably believe that the Florida Supreme Court overstepped its proper boundaries in an arbitrary manner, because this matter is purely a legislative responsibility.”
McKay’s known about town as pragmatic,
sensitive to the winds of public opinion, savvy enough to bounce from scandal back to power in the blink of an eye. During a messy divorce in 1997, McKay’s ex accused him not only of battering her but of having an affair with a phone company lobbyist who was behind a bill McKay, then chairman of the senate Budget Committee, was shepherding through the senate. He resigned from the Ways and Means Committee, but bounced back soon enough, rising quickly once again to helm the whole joint as president of the senate.
At 3 P.M. or so, across the capitol rotunda, Florida house speaker Tom Feeney announces plans for a special committee that will meet Tuesday morning to examine the legislature’s role in selecting the state’s electors.“The Joint Legislative Oversight Committee on Electoral Certification, Accuracy and Fairness” was formed by Feeney and McKay to“address voting irregularities,” which one might assume would include voter irregularities that Democratic voters experienced as well as complaints voiced by Republicans.
But one would be wrong.
Feeney’s a firebrand, mild in demeanor but extreme in thought. As Jeb’s running mate in ’94, the Christian Coalition Legislator of the Year was made a campaign liability by Florida Democrats. Every hard-right move he ever made was trotted out: a call for the state to secede if the national debt were to exceed $6 trillion; support for a move to teach students that American culture is superior; the drafting of a bill requiring hospitals to send the state age and race records of any woman who obtains an abortion. Chiles called Feeney “spooky,”“sort of the David Duke of Florida politics.”
Tom Feeney remembers how he was treated.
Appearing jointly with Feeney, state house Democratic leader Lois Frankel expresses concern about the committee, the brief McKay filed earlier, and the cost of the three attorneys Feeney has retained. These attorneys are: Elhauge and Fried for the state house, and Roger Magnuson, who will advise the senate. Magnuson has written extensively against gay rights, and is dean of Oak Brook College of Law in Fresno, California, an unaccredited school that declares in its mission statement that its purpose is to “establish the Biblical foundations of truth, righteousness, justice, mercy, equity, integrity, and the fear of God in legal education and in the professional arenas of law and government policy.”