Down & Dirty

by Jake Tapper

  Personally, Frankel likes Feeney, gets along with him just fine, but she is amazed by the brazenness of what she sees as an obvious Bush power play. Feeney and McKay, she thinks, are clearly coordinating with the Bushies so as to set up a safety net just in case Gore wins the contest provision and ultimately any recount. And she’s right; McKay has talked with Jeb about calling a special joint committee of the legislature to do so. This week, Jeb will call the formation of the committee an “act of courage.”

  While Ginsberg was originally cagey when Rubottom called him to coordinate, there has since been tremendous communication between the two camps. Rubottom has been talking to Terwilliger; Jimenez has been coordinating with Ginsberg, Jeb, and a whole bunch of folks in the state house; state GOP chair Cardenas and Jeb have been calling the legislature’s GOP leaders, checking in, seeing what’s going on and how they can help.

  Before the legislature even drafts a bill, Rubottom walks over to the Bush Building with Jeb’s counsel, Charles Canady, to talk it over with Terwilliger and others on the Bush team. No one wants this to be the way that Bush gets the White House—through a partisan maneuver and a bill signed by Jeb—but they’re sure not going to rule it out.

  But all the while, the Bushies are doing everything they can to make it seem like they’re not having anything to do with the legislature’s decision. On December 7, Bush spokesman Dan Bartlett will lie, “The Florida legislature made this decision on its own. It’s a separately elected body. We have not participated in their making their decision.”

  The state house minority leader sees this all going on, hears Bartlett’s lie, and can’t believe it. It’s no secret that the Republicans in Tallahassee are cutthroat—leaning on businesses and corporations to stop donating money to Democrats, even leaning on one to cancel a reception for new Democratic legislators. But Frankel sees two reasons for Feeney and McKay’s moves. Yes, they’re setting up another safety net for Bush, but she also thinks that the moves of Feeney and McKay are intended to add to the “circus atmosphere” of it all, creating a chaotic situation, so that the country will eventually say “enough is enough.”

  Still, Frankel thinks, whaddaya gonna do? The Democrats are powerless. When she suggests names of specific Democrats to sit on the special joint committee, Feeney ignores her. Instead, he picks soft-spoken state senator Ken Gottlieb and two Democrats with constituencies that make assertiveness on this issue tough: the mild state representative Annie Betancourt, who represents a Cuban-American area of Miami, and conservative Dwight Stansel, who represents northern Florida areas that were totally Bush country.

  Frankel realizes something sophisticated is happening. These guys aren’t just deciding on their own, “OK, now we’re going to take care of the Bush campaign.” And despite Jeb’s low profile, he isn’t just sitting at home in front of his fireplace twiddling his thumbs. This thing’s just a game, she thinks, and everyone knows it.

  The contest papers are filed at 12:14 P.M., Monday, and a computer selects a judge to preside over the contest: circuit court judge N. Sanders Sauls.

  “This is the worst judge we could have drawn,” Dexter Douglass tells his fellow members of the Gore legal team. “This is a looong draw.” He’s a slow judge, Douglass says, and he’ll be an obstacle in their goal to have an expedited trial so they can be done with before December 12, the “safe harbor” day six days before the electors are to meet. Feeney and McKay have made it clear that the Florida legislature will step in and appoint Bush the electors he needs if this thing hasn’t resolved itself by then.

  More important, Douglass tells the team, “Sauls is a dyed-in-the-wool Southern Democrat who’s for Bush.” Douglass, seventy-one, doesn’t know this for a fact, of course. But he’s known Sauls, fifty-nine, since Sauls was a boy. And he knew Sauls’s mom, chair of the Jefferson County Democratic Party and a tax collector; he even knew Sauls’s father, a clerk of the circuit court.

  Douglass sees Sauls as one of a breed of North Florida Democrats that clings to the ways of the past. “I could have been very much like Sauls,” Douglass will later say, emphasizing that his direct contact with African-Americans throughout his life is what made him ultimately stick with the Democratic Party—despite what he deemed in the ’60s and ’70s to be some radical moves. To be sure, his concern for African-Americans started out paternalistically, but Douglass—a Korean War veteran, losing congressional candidate in ’62, close friend and former general counsel to Chiles, and cattle farmer—has evolved. He doesn’t think Sauls has.

  We’re not going to win with Sauls, Douglass says.

  And just to complicate things further, Douglass says, Sauls really got into a public pissing match with the Florida Supreme Court. In November 1998, he explains, Sauls fired the longtime liaison between the Second Circuit and the Leon County government. The administrator had publicly questioned a hiring decision Sauls had made that ignored a search committee’s recommendation for a family law administrator; Sauls had instead hired a friend’s daughter. But the larger issue was whether Sauls—as chief circuit court judge—was running the Second Circuit in an autocratic and divisive manner, as both court employees and other judges complained. Sauls was hauled before the justices, who chewed him out. The next morning he resigned as chief judge.

  The tensions involve more than that one incident, however. Sauls isn’t respected by the Florida Supreme Court, Douglass says. His rulings have been overturned more than pancakes on the griddle. Appellate courts are constantly reversing his decisions, often finding that he too strictly enforces technical administrative matters.

  Berger and one of his Tallahassee partners, John Newton, have another concern about Sauls. Newton has a history of publicly and financially supporting candidates who have run against Sauls. As a result, at one Florida Bar event, Sauls refused to shake Newton’s hand. Newton has heard from any number of people that Sauls doesn’t like him, that somehow he even holds him responsible for his problems when he was essentially fired by the Florida Supremes as chief judge. Newton, truth be told, thought it all a bit odd, and immature. But since Newton was Gore’s attorney of record in Tallahassee, his signature the one at the bottom of the briefs, this was something that Klain and Gore needed to at least know about.

  The Gorebies now debate whether or not they should move to have Sauls recused. The friction with Newton alone could be grounds for Sauls to recuse himself under Florida’s rather expansive recusal laws. Zack, back in Tallahassee to work on the evidence for the trial, is in favor of the recusal motion. But Boies doesn’t think it’s such a hot idea. If we’re going to win this case, in order to maintain the legitimacy of that win, we don’t want to have anybody with a view or argument that we’re engaged in judge-shopping, he says. Appellate courts and courts generally do not favor recusal motions, he reminds the team. And, Boies thinks, in a way we might be better off appealing an adverse judgment from Sauls because of the bad blood between him and the Florida Supreme Court.

  Ultimately, Gore and Klain decide not to ask for Sauls to recuse himself. They do make a more subtle attempt to remove the case from his courtroom, however, making a motion to consolidate the case with the Volusia v. Katherine Harris matter. Were Sauls to grant that motion, the case would return to Judge Lewis’s courtroom. But Sauls rejects the motion.

  As another step in the Gorebies’ media plan, Gore himself goes before the cameras to personally explain to the world why he’s taking the unprecedented step of contesting the election.

  Public appearances by Gore are always fiercely debated within the Gore camp. Donna Brazile thinks that Gore isn’t doing enough, she thinks he should be out almost campaigning again. Pollster Stan Greenberg, on the other hand, thinks that Gore’s completely ineffective as a spokesperson—the less seen of him, the better. Fabiani’s attitude is: Look, this is our candidate. And he needs to explain what he’s doing.

  Gore steps up to the podium, and immediately the flashbulbs start going off. The Bushies don’t allow photograp
hers to take pictures during their man’s speeches—it ends up creating a distracting strobe effect. Usually the Gorebies don’t either, but there’s a screw-up, and the photographers start shooting CLICKCLICKCLICK, totally ruining the mood.

  “A vote is not just a piece of paper,” Gore says. “A vote is a human voice, a statement of human principle. And we must not let those voices be silenced….Ignoring votes means ignoring democracy itself. And if we ignore the votes of thousands in Florida in this election, how can you or any American have confidence that your vote will not be ignored in a future election?”

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  “That is all we have asked since Election Day, a complete count of all the votes cast in Florida, not recount after recount, as some have charged, but a single, full, and accurate count. We haven’t had that yet.”

  That is, of course, not true, and it is nothing short of amazing that Gore would make this claim. Gore has now twice suggested a statewide recount—but half-heartedly, and a statewide recount is not the goal of either his legal or his political teams down there.

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  “Great efforts have been made to prevent the counting of these votes,” Gore says, accurately. “Lawsuit after lawsuit has been filed to delay the count and to stop the counting for many precious days between Election Day and the deadline for having the count finished.” In Miami-Dade, Gore charges,“election officials brought the count to a premature end in the face of organized intimidation.”

  This is artfully phrased, since it doesn’t actually state that the intimidation caused the count to end, but Gore’s insinuation borders on demagoguery.

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  “There are some who would have us bring this election to the fastest conclusion possible,” Gore says. “I have a different view. I believe our Constitution matters more than convenience. So, as provided under Florida law, I have decided to contest this inaccurate and incomplete count in order to ensure the greatest possible credibility for the outcome.”

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  Gore’s poll numbers continue their free fall.

  On Tuesday, November 28, Baker parades what one CNN correspondent refers to as “the Boies Killers” before the TV cameras, and Phil Beck’s about to faint.

  It’s not because he’s nervous. It’s because he quit drinking coffee about a year ago, so he could sleep better. This morning, however, after pulling a near all-nighter studying the case, his ass is dragging. As he was about to be introduced to the press corps with great aplomb, he thought he should violate his system’s caffeine embargo. GLUG GLUG, two giant cups of coffee.

  He almost instantly regrets it. He’s completely lightheaded. He thinks he’s going to pass out. Baker’s talking to the packed room of reporters, who have no idea who Beck is. Beck’s standing there before them alongside Terrell and Bristow and Barry Richard, who also have no idea who he is. And all Beck can think about is how he’s about to faint in front of the world and be sent home in a box.

  “This is an extraordinary procedure, and we are entering new, uncertain, and controversial territory,” Baker says. “Therefore, I would like to introduce the senior members of the litigation team, who will be defending the vote of Floridians in favor of Governor Bush and Secretary Cheney.”

  The white-maned Richard steps up.“We believe that the election contest is without legal substance,” he says. “We have divided up the issues among the lawyers, and each one here with us today is prepared to comment on a specific issue.”

  Terrell’s first up. “I’d like to talk to you about one of Mr. Gore’s pet theories in the case, and that is the myth that there are ten thousand votes that are not counted in Miami-Dade County,” he says. “In fact, those are non-votes. And indeed, it is not unusual for people not to vote fully in every election on a ballot. In fact, those ten thousand non-votes are about 1.6 percent of the votes cast in that county.”

  Then comes Bartlit. “I’m going to talk about myth number two,” he says. “That’s the myth that Miami-Dade would have conducted the manual recount unless a—if it wasn’t for a Republican mob that intimidated the canvassing board. A Gore lawyer, Ron Klain, said that a mob stormed the counting facility to stop the count. That’s the myth.

  “Here are the facts,” Bartlit says. One, the protest was over the fact that the move to the nineteenth floor “was a violation of the Florida sunshine law.”

  Second, Bartlit says, laying it on a bit thick, the protest was benign, “peaceful” even. “There were babies in the crowd. There were little kids there. There was, in some ways, a holiday atmosphere.”

  Beck steps up, mentions the butterfly ballot case, which is heading toward the Florida Supreme Court. It “is not fair to wait until the votes have been counted and then, if you don’t like the outcome, to say that… there was something wrong with the form of the ballot,” Beck says. He does not faint.

  Lastly, Bristow pops up to talk about Nassau County, throwing the “count every vote” rhetoric back in the Gorebies’ faces. “These two hundred eighteen votes were real votes by real people who did what they needed to do to express their will,” Bristow says. “No one, at no time, declared these votes illegal….The board unanimously voted—including two Democrats, and that included the supervisor—that this should be done to express the will of two hundred eighteen people who had really cast their votes.”

  Later that day Bartlit and Beck watch a TV news broadcast about their press conference that will marry Bartlit’s “holiday atmosphere” audio with videotape from the ugly, aggressive Miami-Dade protest.

  “‘Holiday atmosphere,’” Beck will quip. “Yeah, it was Bastille Day.”

  Desperation has an aroma.

  It repels singles in bars, clients from Willy Loman–esque salesmen, employers from the laid-off. And this week, in the Florida state capital, that smell is starting to fill the air, and it’s coming straight from the campaign of those who oppose Bush’s claim to the presidency. It’s coming from Al Gore.

  The stench can be detected on Capitol Hill in Washington. There, some Democratic congressional leaders who are vociferous in their public support for Gore reveal—off the record and behind closed doors—that they think the man should pack it in.

  Even among those who support Gore and are calling for patience, “there’s a sense of despair,” confides one senior Democratic Senate staffer. “Every day the scenario becomes less and less probable.”

  Even some of the earnest Democrats slaving away for Gore on the ground in Florida don’t hold out much hope that this is going to end well for the vice president. The legal hurdles are too daunting. In order for Gore to end this in the White House, each one of the following dominoes must fall precisely right in the next twelve days:

  Circuit judge Sanders Sauls—or, alternatively, the Florida Supreme Court—must allow the following net votes for Gore: the 215 late Palm Beach County votes; the 157 votes that came from Miami-Dade County’s partial manual recount; and Nassau County’s 51.

  Sauls or the Florida Supreme Court must rule against the Palm Beach County canvassing board’s decision to exclude the 3,000-odd “dimpled chad” ballots, and against the Miami-Dade canvassing board’s decision not to evaluate the 10,750 undervotes. Almost no one believes that the Florida Supreme Court, which has already ruled that acceptance of “dimpled chad” ballots is at the discretion of local canvassing boards, will direct Palm Beach to change their standards.

  These ballots must contain enough votes for Gore—combined with the 215, 157, and 51 votes gleaned in the sequence outlined above—for him to overcome Bush’s certified 537-vote margin of victory.

  SCOTUS must not rule that the Florida Supreme Court overstepped its bounds in extending the deadline for ballots to be received by the secretary of state’s office.

  The GOP-controlled Florida legislature must decide not to assign its own electors if
the above hasn’t been decided by December 12, as seems likely.

  Other long-long-long shot alternatives: The Florida Supreme Court could rule that Palm Beach County’s butterfly ballot was an illegal ballot and demand a revote. Ain’t gonna happen. Or a judge could toss out Seminole County’s 15,000 absentee ballots or Martin County’s 10,000. Also, ain’t gonna happen.

  On Tuesday, the desperation comes from Gore via the Rev. Jesse Jackson.

  Accompanied by members of the Congressional Black Caucus—Democratic representative Charles Rangel of New York, Rep. Eddie Bernice Johnson of Texas, and Rep. John Conyers of Michigan—Jackson calls for Attorney General Janet Reno to investigate his charge of a clear conspiracy to suppress black turnout. “It is far too widespread for it to be accidental,” pronounces Jackson, providing no affidavits, no names, not any backup information at all for his claims, even after being asked.“That Bush, Cheney, Trent Lott, Strom Thurmond, Jesse Helms, Orrin Hatch, Tom DeLay, Bob Barr, plus the Supreme Court of Clarence Thomas, Scalia, and Trent Lott [sic]”are on the opposing side, Jackson says, is no surprise. “We can afford to lose an election, but not our franchise,” he declares. Bush “can’t look at voters who were stopped by police and asked for their driver’s license and their ID badges in a hostile way [and say],‘Your pain, my gain, I’m your leader.’”