by Jake Tapper
In deference to her concern, Olson amends his earlier statement.“I don’t mean to suggest, and I hope my words didn’t, that there was a lack of integrity or any dishonesty by the Florida Supreme Court,” he says. “What we’re saying [is] that it was acting far outside the scope of its authority.”
But both sides get beat up in Supreme Court cases; it’s the nature of the beast, since to make it so far up the judicial ladder, both parties have to have compelling arguments. So, after a few brief remarks from Joe Klock and Paul Hancock (representing Bob Butterworth), Gore’s main man, Harvard law professor Lawrence Tribe, undergoes the same ordeal.
Tribe starts by slamming Olson’s argument as merely a sound bite.
“Although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses the point when the game is over, and when it’s over in a kind of photo finish that leaves people unsure who won,” he says. “And then the question is: How do you develop great, sort of, greater certainty? And a rather common technique is a recount, sometimes a manual recount, sometimes taking more time…. It’s nothing extraordinary.”
Kennedy raises an eyebrow. “You’re saying, no important policy in 3 U.S.C., Section 5?” he asks. “In fact, we change the rules after?”
Tribe backs down a bit: “Certainly, not, Justice Kennedy.” But, he adds,“if you look at the language, I think it’s really much too casual to say… that all of the laws must stay fixed.” Moreover, he says, “that’s really not a question for this Court, but rather for the Congress.”
Tribe reads the law in question, arguing that it provides for the courts to step in if need be, so no big deal, no harm, no foul. But O’Connor doesn’t take to this. Florida law states that certification should have taken place on November 14, she notes, and the state supreme court changed that.
“‘Here is the certification date,’” she says, as if quoting the legislature. “How could it have been clearer?… Perhaps the Florida court has to be aware of the consequences to the state of changing the rules.”
Tribe says that the “provisions are in conflict” in the Florida law, so the Florida court took the state’s emphasis on the right to vote and used it “as a tiebreaker.” But Justice Scalia doesn’t like that.“Mr. Tribe, I don’t agree with that,” he says. “I don’t think that the Florida Supreme Court used the Florida constitution as a tool of interpretation of this statute….I read the Florida court’s opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent. I don’t think there’s any other way to read it. And that is a real problem, it seems to me, under Article II”—the provision of the Constitution that gives state legislatures the authority to decide how they select their electors.
Scalia keeps needling Tribe, making it more than clear that he doesn’t approve of the Florida court’s ruling.“I just find it implausible that they [in the Florida legislature] really invited the Florida Supreme Court to interpose the Florida constitution between what they enacted by statute and the ultimate result of the election,” Scalia says.
O’Connor and Kennedy, too, seem rather skeptical and disapproving. Under questioning, Tribe at times steps back a little from his own arguments. He even appears to strain occasionally for new ones, at one point actually telling the justices that “disenfranchising people isn’t very nice.”
Finally, Rehnquist calls it a day.
“The case is submitted,” he proclaims as the gavel goes BANG! Justice Clarence Thomas is, as usual, the only one who didn’t speak.
Also on Friday, those crazy, wacky liberals on the Florida Supreme Court rule on the butterfly ballot appeal that Henry Handler, Andre Fladell, et al. have filed.
They rule against them with prejudice.
“They claim that the ballot is patently defective on its face in that the form and design of the ballot violated the statutory requirements of Florida election law,” the court writes. “The appellants contend that the ballot was confusing and, as a result, they fear that they may have cast their vote for a candidate other than the one they intended.” Even if one were to accept the “allegations,” the court writes, the butterfly ballot isn’t anywhere near “substantial noncompliance with the statutory requirements mandating the voiding of the election.”
“NO MOTION FOR REHEARING WILL BE ALLOWED,” the justices unanimously rule.
Bush wants attention to be paid to his Thursday meeting with Colin Powell, his likely secretary of state. It’s all part of the “Inevitability Image.” A seven-vehicle caravan arrives at Bush’s Crawford ranch shortly before noon; the Cheneys and Powells exit a blue Chevy Suburban and enter the side door of the Bush ranch’s temporary house; construction of the main house being, like so many things these days, behind schedule. Ten minutes later the alpha males, with wives following them dutifully, approach the media. Bush is at his DKE president best, winking and mugging to the scribes.
“We’re really thrilled that Colin and Alma took time out of their lives to come down,” Bush says. “We’re going to spend the afternoon talking about our transition, and in particular we’re going to talk about national-security matters and foreign-policy matters, and no better person to talk about that with than Colin Powell. He has a great deal of experience. Dick and I trust his judgment, so I look forward to a really good afternoon…. Colin, thanks for coming.”
“Thank you, governor,” Powell says.“I look forward to our conversations this afternoon on matters of international affairs and foreign policy and also transition issues. So thanks for having me, and congratulations on your success in the election.” When asked if he’s officially been anointed secretary of state, Powell says, “I have not yet been asked, and if that question should be posed to me, I think I should answer it directly to the governor at that time before answering anyone else.”
Asked if he’s concerned about the legislature’s stepping in, and whether that might be seen as a power play, Bush says, “As far as the legal hassling and wrangling and posturing in Florida, I would suggest you talk to our team in Florida, led by Jim Baker.”
Asks another reporter, “With Gore all over the airwaves, are you having this press availability to respond to criticism that you’ve appeared out of touch, out of mind, out of touch the last few days?”
Bush laughs. “That’s a pretty good one. Thank you all for coming.”
All day Thursday and Friday, airtime is taken from Powell and given to the ballot-filled trucks from Miami-Dade and Palm Beach as they make their way to Tallahassee.
From West Palm, the ballots come in a yellow Ryder truck driven by Tony Enos, the actual designer of that fucking butterfly ballot. He probably owes the citizens a little more hard labor than just an extended road trip, but this is the task he’s been given. From Miami, the ballots come in two white vans that leave Leahy’s watch at 6 A.M. Friday. Behind them, in a silver Pontiac, rides a Gore observer named Chad. Chad Clanton.
The five-hundred-odd-mile, eight-hour trip proceeds up the Florida Turnpike north, past Disney World to I-75 North, to I-10 West to Tallahassee. The truck and vans are followed by news choppers, so CNN and MSNBC and all the rest can periodically give images of the caravans. Clever and original newscasters and reporters all note the similarity with the coverage of O. J. Simpson’s Ford Bronco ride. An AP reporter even tracks him down to see what he thinks.“Boring,” says the Heisman trophy–winner and acquitted double murderer, now a Florida resident.“In my case, it may have been a little more intriguing, because people didn’t know what was going to happen. Here, they know the ballots are going to get to Tallahassee.”
The Gorebies’ point man on minority voters’ irregularity complaints, Henry Latimer, learns that in Duval County, 27,000 undervotes and overvotes were tossed—disproportionately from black precincts in downtown Jacksonville. In some black precincts, 1 in 3 ballots was discarded, about four times more than in white precincts.
> Latimer learns this after certification, and he’s pissed. Now it’s too late to do anything about it. He’ll work with the Congressional Black Caucus and the NAACP in urging the Justice Department to look into the problems, to hold hearings, to try to get to the bottom of what happened, so that it never happens again.
But what did happen? What was the reason for the 27,000 trashed ballots? Latimer wonders. Was it the confusing “caterpillar ballot”? Was it all the new black voters? Did someone intentionally double-punch the ballots?
In a way, it almost serves the Gorebies right. Duval Democrats had been trying to get members of the Gore team to listen to them for weeks. There were votes in the overvotes, they insisted. African-American voters who had been confused by the caterpillar ballot had written Gore’s name in. There was clear intent there. But few were then taking the notion of overvotes seriously. Well—some were. Young and Sautter. And African-American Democrats in Duval. But no one was listening.
“If anyone’s wondering,” one member of the Gore legal team jokes, “Steve Zack’s available for Nightline tonight.”
Quite a few on the Gore legal team don’t understand why Boies spends so much time with Steve Zack, who seems to some to be something of a self-aggrandizing bullshit artist. Maybe this was just jealousy. Everyone wanted to be close to Boies, but it was Zack who would have dinner every night at the Silver Slipper, billed as “a place for Florida’s movers and shakers,” with the Microsoft killer, and some didn’t quite get why Boies liked him.
There has been much debate within the Gore legal team as to how to proceed. Berger thinks that the only evidence needed is the un-recounted ballots from Miami-Dade, and the 3,300 disputed ones from Palm Beach. Coffey, meanwhile, wants a litany of experts to show that there was something wrong with the machines, as well as to establish that the Miami-Dade GOP protesters intimidated the canvassing board. Another consideration—not to mention evidence, in the Gorebies’ mind, of the Bush delay-and-draw-out strategy—is the fact the Bushies have compiled a list of almost one hundred witnesses. If this is a race against time, maybe less evidence would be better.
In the end, Boies and Klain decide to introduce a ton of evidence but not a lot of testimony. Zack will prepare two witnesses to establish two matters: that there were uncounted votes that need to be inspected, and that there was something wrong with those Votomatics that caused the problem to begin with. This will show that there were legal votes that hadn’t been counted, the counting of which could likely change the outcome of the election.
While Zack and his elections expert examine the machines in Miami-Dade, the assistant director for the supervisor of elections, John Clouser, tells them that some of the Votomatics haven’t been cleaned in eight years.
Other questions are raised, too. Why do some people have problems punching holes? And why does it just happen on column one, on the left? The left side is used most often, which, some theorize, increases the rigidity of the rubber. Could that be it?
Zack’s no expert on any of this. The first time he heard the word “chad” was when he was sitting in Middlebrooks’s courtroom, Monday, November 13. But he has a theory. Most people are right-handed. So when they put the machines down on the voting table, they must bring them in from the right side, and inside the Votomatic the chads migrate to the left side as that corner is put down first.
Yes, that must be it, Zack thinks.
Bartlit, meanwhile, is preparing what he feels is an excellent case on Broward, compiling odd quotes from Gunzburger and Lee, preparing to call in Judge Rosenberg himself to hammer the canvassing board on its liberal standards. Gunzburger and Lee argue that they agreed around 80 percent of the time, but Bartlit is under the impression that Rosenberg will slam them on the stand.
Another bomb Bartlit plans to drop involves Michael Lavelle, despite the fact that Lee has said that the Lavelle affidavit did not affect the board’s decision one way or the other.
Moreover, Lavelle has since reviewed the September 1990 transcript and has concluded that Judge Barth did, in fact, allow two dimples to count as votes. His original recollection was correct, he thinks. And Mihalopoulos’s phone call to him, in which he read partial excerpts from the transcript, was misleading, if unintentionally so.
The Tribune, of course, is reporting the opposite. “Mistake in Citing Illinois Case Gives Bush Ammo,” Jan Crawford Greenburg writes on Friday, December 1. Her story still doesn’t mention the role that Mihalopoulos played either in bringing Lavelle to Berger and Boies’s attention to begin with or in convincing him that his original memory was wrong. Plus she’s still making assertions like “the judge in fact ultimately excluded those [dimpled] ballots,” which Lavelle, at least, believes not to be true. Far be it from the Chicago Tribune to point out its own sloppy reporting has fed into the mess it now is writing about.
Deposed by the Bush lawyers in Illinois on December 1, Lavelle reads from the September 1990 hearing transcript, reciting Barth’s comments that “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.” He also testifies that neither Berger nor Boies ever pressured him “to include information in that affidavit that was not true and correct as [he] understood it to be,” thus countering an ethics complaint against Berger and Boies filed by the conservative National Legal and Policy Center in McLean, Virginia.
Boies is aware that Lavelle’s videotaped deposition is better for his team than the Bushies would have it. Both he and Berger are under the impression that there is little more going on here than an attempt to paint them as liars, when in actuality, the biggest liars about the Pullen case have been Baker and the Bushies for arguing that the case had to do with hanging chad only. The big mistake was assuming that the Tribune stories were accurate; but since then, it’s pretty clear that in the Pullen case dimples were in fact considered, and were even counted on at least one occasion. Late one night, Sean Gallagher faxes Berger notice that the Bushies intend to show Sauls the videotape of Lavelle’s deposition.
“Tell Bartlit that not only are we going to cross-designate” the videotape, Boies tells Berger, “but if he wants to drop any parts that he thinks are bad for us, we want them in.” They want Lavelle to become part of the record, they want the Bushies to run the video.
The Bushies decide not to.
Friday evening, Zack deposes a tall cowboy named John Ahmann. Ahmann, one of the refiners of the punch-card ballot back in the 1960s, is a Bush witness flown in from California to try to shoot holes in Zack’s chad buildup theory. Sometime during the deposition, Ahmann mentions that he holds a patent for a new kind of stylus.
“You know what? I bet he’s got other patents,” Zack thinks. He calls Jennifer Altman, a partner at the Miami office of his forty-lawyer firm, Zack Kosnitsky, and asks her to find out everything she can.
Altman spends the weekend, she later says, “looking for anything on this guy. I spent a lot of time on the phone, on the computer, finding whatever research I could.”
Before statistician Hengartner testified before the Palm Beach canvassing board last Friday, he was up all night preparing the affidavit he was going to present to the board. In it, he hoped to outline his predictions of how many votes should turn up while they waded through the undervotes. One of the comparison races Hengartner used involved the 1998 Palm Beach ballot, and the fact that there were more undervotes in the senate race than there were in that year’s governor’s race. His guide in Palm Beach was Neal Higgins, twenty-five, a second-year Harvard Law student, who, Hengartner believed, told him that the governor’s race was in the second column—thus lending credence to the theory that there were more problems in the first column.
But after he’s flown to Tallahassee, Hengartner still hasn’t seen the 1998 Palm Beach ballot, he still doesn’t have the hard data. So he asks one of the Gorebies, Mike Farber, to take the reference to those 1998 races out of his proffer * before Sauls. Th
is does not escape the notice of one of Beck’s favorite witnesses, Laurentius Marais, a statistician from South Africa whom corporate America—Big Tobacco, lead-based paint manufacturers, etc.—relies on quite a bit to shoot down the theories of plaintiffs. Theories like, say, Philip Morris misrepresented the health effects of smoking. Or that kids who chew on lead-based paint have slower intellectual development.
Marais calls Palm Beach, obtains a sample copy of the 1998 ballot that Hengartner referred to in his Palm Beach affidavit, about which he has removed all mention in his proffer. “I think we may have a piece of information that will be quite useful in your cross-examination of Professor Hengartner,” he says to Beck.
He explains.
“Holy shit,” says Beck.
That night, Bartlit Beck junior partners Shawn Fagan and Sean Gallagher are about to go depose Hengartner and Brace, respectively.
Beck tells them about all the good stuff he has on Hengartner and Brace, the ways he’s planning on taking them down. So he tells Fagan, a Harvard Law grad who clerked for Rehnquist, and Gallagher, a Michigan Law grad who clerked for O’Connor, to take a dive. Beck doesn’t want them to tip off the Gorebies’ witnesses as to what they have, so they can adjust their testimony.
“You are under strict instructions not to ask any smart questions,” Beck says with a smile.“I want you guys to take the worst depositions ever taken. If you ask anything about the 1998 Palm Beach ballot, you’re fired,” he says to Fagan. And to Gallagher, he says,“I don’t want you to ask anything about the rubber on the left-hand side of the Votomatic. We got great stuff, and I don’t want to scare them off.”
Fagan and Gallagher go off, spending most of their depositions asking the Gore witnesses what courses they taught in college, what books they used as course materials, where they went to school, inanities such as that.
Afterward, they huddle with Beck, talk about the few things they were able to learn, and brag about which deposition was dumber. Before they all retreat to their hotels for an hour or two of sleep before the trial, Terwilliger and Ginsberg grab Beck. Whaddaya think? they ask.