by Jake Tapper
“I suppose I should be lowering expectations,” Beck says. “But the truth is, we’re going to massacre them.”
17
“You were relying on the Gore legal team to give you the straight facts, weren’t you?”
In Courtroom 3-D, circuit court judge Sanders Sauls doesn’t look like he’s enjoying this any more than the rest of the nation is. He’s scowling, even frowning a bit. Sauls had said that he wanted this to be a twelve-hour hearing, winnowing down the number of Bush witnesses from ninety to twenty.
Doesn’t he know that nothing happens quickly in Florida? Heck, that’s why people live in Florida. This is the state where a quartet of senior citizens can paralyze a four-way intersection for an hour while they wait for the other Cadillac to move first.
“Let’s get all the fluff off,” Sauls said on Friday. Following his lead, Boies and Richard begin Saturday with a bipartisan motion-and-second to try to keep their opening remarks concise.
And we’re off. Though we’ve all learned by now that this thing could end up anywhere—being decided by the U.S. Supreme Court, the Florida legislature, the U.S. House and Senate, or the fat Baldwin brother—Gore’s legal team has pinned a lot on this case. If not on Sauls, then at least on the case they’re about to present here.
Boies steps up and declares that “the issue before this court is ‘Is there, or are there, legal votes that have been rejected?’” It doesn’t matter why Harris didn’t accept Palm Beach County’s post-deadline numbers, Boies argues. What matters is that the county tabulated votes that Sauls now should include for Gore, votes that could certainly affect Bush’s margin of victory, Boies notes, “which, as everybody in the country and probably the world knows, is five hundred thirty-seven.”
He ends after about fifteen minutes, telling Sauls that he’s “not going to spend time arguing ‘the right to vote,’ or any of that.”
Now it’s Richard’s turn, and he comes out swinging, saying that Boies’s arguments are “unreasonable and contrary to Florida law.” “If we accept Mr. Boies’s premise, there is no reason for a tabulation on Election Night,” Richard says. Just ship all the ballots to Tallahassee after the election and have all the judges count them. Rather, “the conduct of the canvassing boards comes to this court with a presumption of correctness.”
And besides, Richard continues, Boies has to prove “whether or not the Miami-Dade, Palm Beach, or Nassau canvassing board has abused its discretion, not only that it acted wrongly but also acted in a fashion that no reasonable person would have done.” Boies, Richard points out, has soft-pedaled this premise since first introducing it on Tuesday to a somewhat skeptical reaction from Sauls.
Other attorneys in the room get a moment to speak. Fresh off his U.S. Supreme Court appearance, Klock has a quick give-and-take with Palm Beach County canvassing-board lawyer Andrew McMahon. Michael Mullin, representing the Nassau County board, says that he will easily and handily dispense with the Gore complaint against his board.
Throughout the day, a cluster of protesters remains gathered outside the courtroom. Gore supporters are singing “This Land Is Your Land,” as one from their number strums an electric guitar. The Bush backers hold signs jeering Gore as a sore loser; one from their crowd is dressed as Darth Vader. A man in sackcloth with a fifteen-foot crucifix argues that only Jesus can bring this nation together.
Inside, Zack calls the team’s first witness, Kimball Brace, dressed like the prototypical D.C. bureaucrat, shaggy beard like Grizzly Adams.
The Gorebies haven’t devoted an inordinate amount of time to tracking down the very best witnesses. After Hengartner had testified before the Miami-Dade and Palm Beach canvassing boards, DNC staffer Jason Fuhrman had e-mailed Klain and a couple others, asking them if they wanted to keep using the Yale statistician. The DNC had since talked to other statisticians who were both more experienced and higher profile. But the Gore-bies were happy with Hengartner; Boies thought he had done a fine job in Palm Beach, and after all, Hengartner was a known quantity.
But what about his idea that there was something wrong with the voting machines? That somehow, for some reason, it became tougher to punch holes in ballots in the first row? Rouverol, at eighty-three, was a little long in the tooth. So Zack looked through newspaper articles and saw that the expert quoted most was Kimball Brace, president of Election Data Systems, a consulting firm in the D.C. area.
“Can you help us?” he asked Brace, after explaining what he was looking for.
“Yes,” Brace responded. And now here he is.
Brace says that for the last twenty years, his company has compiled information on “what kind of voting system is used in every single county in the country.” Zack brings Brace’s own Votomatic out, Exhibit 52, and Brace proceeds to show how it’s supposed to be used: ballot slid into Votomatic, stylus through the hole of the machine and the ballot underneath, chad punched out. “Unfortunately,” Brace says, “it doesn’t always work that way.”
Beck objects. Brace, Beck says, is “a professional demographer” without the expertise to talk about the Votomatic. Beck steps up for a voir dire * examination, says that “in fact what you’ve been doing for the last twenty-five years is things like advising the Democratic Party in redistricting fights.” Brace’s degree, Beck reveals, is in political science, not mechanical engineering.
The point won, the task of questioning returns to Zack. Brace says that after looking at the Palm Beach voting devices earlier in the week, he concluded “that there was more extensive wear of that template on the left-hand side than on the right-hand side, which would be understandable and normal in the course of business, in terms of the use of the voting equipment. The left-hand side of these machines gets more use, because when an election administrator sets up the ballot, he generally starts from the left-hand side and moves to the right-hand side as the ballot is filled out.”
Brace says that dimples can be formed when ballots are put on top of the Votomatic instead of slid inside them.
“I want to inquire, if I may,” Sauls asks. Do the voter instructions say to make a dimple?
“Well, they’re not instructed to create dimples,” Brace says, “they do create dimples.”
There are other ways, too, dimples can be formed, Brace says. If “the machines are not cleaned out on a regular basis and there’s chad buildup and, therefore, the voter may not be able to push down as firmly.” Or if the stylus goes in the hole at an angle, instead of straight in. Or if the rubber strips on the device aren’t “properly maintained,” and they “become old, brittle, hard, and keep a voter—”
“Your Honor,” Beck jumps in, a 180-pound sneer, “may I voir dire on this expertise?” Sauls holds him off; cross-examination is coming. Brace ends by saying that hand recounts are necessary.
Now Beck is ready to roll. He asks Brace to use the machine and vote without making a dimple.
He does.
“Did it work?” Beck says.
“Yeah,” Brace replies. “I voted for number five.” Gore.
“You don’t have to say who you voted for, “ Sauls says to laughter.
“And if somebody actually puts the card in the machine like they’re instructed to, and attempts to vote, rather than attempts to make a dimple, it’s not all that hard to knock out the little chad, is it, sir?” Beck asks.
“Well, it depends on the template in there,” Brace says. He shows how it can be difficult to punch it in sometimes. “Well, I mean, I’m hitting right here… I’m pushing down, and finally, it went in.”
“Long last, you’re able to vote,” Beck says. This is like slapping a punching bag.
“Do you know the difference between synthetic rubber and natural rubber?”
No.
“Do you know whether natural rubber over time tends to get harder or softer as it ages?”
No.
And on and on. He’s cooking now, sounding and carrying himself in a way that’s eerily reminiscent of Kevin Spacey
at his Oscar-winning, arrogant best.
Brace is not cooperative. “Would you answer my question?” Beck impatiently asks him.
“I thought I did,” Brace replies.
“No,” Beck says. “Answer yes or no. Then if you need to explain…”
“OK. That would certainly be the main thing that I…”
“You’re supposed to answer yes or no,” Beck says.
“Yes,” says Brace.
“Yes?”
“Yes,” Brace says again.
“Thank you,” Beck says, his voice dripping with a candy-covered combination of exasperation and disdain.
Beck soon turns to chad buildup.
“The theory is that there’s a bunch of people voting for president of the United States, and all these little chads fall down, and they kind of stack up on one another, and then they stop somebody from pushing the stylus through the hole, right?”
“Not necessarily,” Brace says. It stacks up on the left side, he says.
“Do you know how many people, on average, use one of these voting machines in the presidential election?”
“I don’t,” Brace says. “It would be a good number to know.”
How many chads would have to be in a Votomatic to cause chad buildup? Beck asks.
“I don’t know.”
Beck then wonders how chad can build up on the left side in a Votomatic when the devices are taken to and fro, hither and yon, in between elections. Brace has no answer to that.
Zack has two of the actual Votomatics from Palm Beach County. He’s hoping one of them will be full of chad. When no one’s looking, he opens the latch of one of them, looks underneath, and sees that it’s empty. He pushes the device back into place. He opens the second one—it’s full of chad. He smiles. It’s his birthday today, and this is his present, he thinks.
He takes this second Votomatic over to Brace.“Have you ever seen somebody, after they get through voting, go ahead and shake it up so that they get all the chads moved around?” he asks, shaking the Votomatic, hoping to discredit Beck’s theory about the chad getting shaken. “Have you ever seen anybody do that?”
“No, I have not,” Brace says.
Zack brings the device to Brace.
“There’s a lot of chad falling out,” Brace says.
Zack asks him “to remove this cover, and, Judge, I want to show that this cover, this machine is full to the brim with chads…. May I dump this, Your Honor, on a piece of paper?”
“You need my knife?” the hammy Sauls asks, quickly brandishing a blade. Brace accepts it.
I ask a courtroom cop if a lot of judges carry knives. “I dunno, I never searched one,” the cop says. “A couple carry sidearms.” But then again, the cop says as he takes out his own knife, “We all carry knives in the South.”
Brace opens the machine and chad confetti spills all over Sauls.
“I’m putting chad all over Your Honor’s counter,” he apologizes. Gore attorneys smile, seeming to think that the fact that masses of chad built up in this third-party-selected machine proves their point.
Beck asks Brace to read the Votomatic’s instructions, under “Important Notice to Voter.” Brace does: “Look at the back of the ballot card, then be sure all holes are cleanly punched, and then pull off any partially punched chips… that might be hanging.”
“They don’t even talk about the possibility that somebody could come in here and end up just dimpling the thing rather than punching through, do they?” Beck asks.
“Dimples are a newer phenomenon in American electoral history,” Brace says. Not a good answer.
Brace steps down, and it sure feels like Beck just ate Brace alive.
Beck returns to his table. He likes cross-examining [read: destroying] experts more than anything else, ever since he was a kid in the 1950s watching Perry Mason on TV. (I wonder if the producers of Perry Mason know how many baby-boomer lawyers they inflicted on the world. Terry Lewis, Steve Zack, Phil Beck all cite the show as one of the many reasons they entered the law.) He’s been waiting his whole career to get someone to confess on the stand to being the real murderer, he jokes. But this is pretty good, too.
Richard hands him a note: “One of the finest cross-examinations I’ve ever seen.” Terrell, too: “That was brilliant.”
In the court administrator’s office—where the Bush legal team has set up shop for breaks—the responses are the same. Beck is getting slapped on the back, high fives.
“You should dial it back a little,” Bartlit says. “You were having a great time up there, and you did a nice job, but you were close to going over the top. You should dial it back a little for the next guy, rather than be quite as theatrical and flamboyant.”
“I don’t think I can,” the cocky Beck replies.
But he promises to try. Bartlit loves Beck, thinks he’s fantastic, talented, has loved watching him blossom at the firm they created together. And he knows that lawyers love wiseass remarks and clever sarcasm, which Beck is great at. But in past cases, Bartlit Beck has conducted tests of Beck’s arguments on potential jurors, using focus groups of judges and lawyers and just plain folks. And every time Beck unleashes one of his cutting remarks, the approval meter ratings go up with the lawyers and down with the jurors. The judges tend to be mixed.
Just dial it back a little, Bartlit says again.
Hengartner is next up, Douglass announces.
Douglass has largely been relegated to the position of Team Gore MC. He doesn’t volunteer much in terms of suggestions or ideas; he doesn’t think Boies Klain and the others want him to.
Gore attorney Jeff Robinson—the only African-American attorney I’ve seen on either side—begins questioning Hengartner, a gangly Canadian who, Robinson quickly establishes, isn’t a Democrat, or someone being paid for his testimony, or even an American citizen. At Yale, he teaches applied statistics, probability, and the theory of statistics. He’s here today because “it’s an exciting problem, it’s important,” and “it provides visibility for both Yale University and also for myself.”
Hengartner discusses charts that show that there were far more undervotes in Palm Beach County than anywhere else in Florida—an aberration the Gore team wants Hengartner to say can only be because of the county’s faulty punch-card machines. Only 0.3 percent of the votes cast in optical-scanning machines have “no recorded votes for president,” Hengartner says. By contrast, 1.5 percent of punch-card ballots were undervotes. And that figure was 2.2 percent in Palm Beach County.
Robinson then tries to get Hengartner to provide evidence that somehow Palm Beach County’s hand recount wasn’t done correctly. During their hand recounts, the canvassing boards in Broward and Miami-Dade Counties recovered votes in 26 percent and 22 percent of their counties’ undervotes, respectively, Hengartner says. But in Palm Beach, the recovery rate was much lower, 8 percent.
Beck comes at Hengartner hard, too, seeking first to paint his knowledge of the undervote figure as incomplete, and then going after his credibility. Hengartner, Beck establishes, doesn’t know about undervotes for other offices. Why didn’t he ask Harris for the data?
He did, he says, but “she was less than helpful.” Surprise, surprise.
To test your hypothesis, though, you’d have to look at other offices, right? Beck asks.
“It would be interesting,” Hengartner says. “But I want to remind you, again, not all the races in each county will be competitive….There would be popular judges, and hated judges—”
“That’s why you would look at all the counties,” Beck says, “rather than picking one county where there is the dirty rotten judge, and one county where there is a real popular judge—”
“Can we move this to another subject?” Sauls asks, always a jokester. But Beck has made a point.
Beck produces the Hengartner affidavit from Palm Beach County—to Hengartner’s surprise and, it would seem, confusion.
Gore’s attorneys start objecting frantically. They seem
to know what’s coming. Beck points to Hengartner’s analysis of the undervotes in the 1998 Florida senate race versus those in the governor’s race. Using a projector, Beck shines the offending graph onto the wall, as Robinson and Boies whisper to one another frantically.
“A closer inspection of the Palm Beach County ballot reveals that the senatorial race was recorded in the first column, and the gubernatorial race in the second,” it says. The document goes on to say that “it seems unusual and indicates that the punch-card reader does not record all the votes cast in the first column.”
“You bought into their hypothesis about the left-hand column,” Beck presses.
“I am trying to put one and one together,” Hengartner says in his stilted English.
“You haven’t inspected the ballot,” Beck asks, even though Hengartner’s statement said that “a closer inspection” of the ballot helped prove the Gore team’s thesis.
“Have you?”
“I have not seen the ballot,” Hengartner admits.
Well, guess who has?
Beck says that he subpoenaed the elections board and has a copy of the ballot from November 3, 1996. With Sauls’s permission, he approaches Hengartner on the stand and shows it to him.
Both the Senate and the governor’s race are listed in column 1.
Bum-bum-BUMM!
Robinson stands; he wants to see the ballot.
“It’s the only one we have,” Beck says mockingly. “If you want to come up here and stand with us, I sure invite you to.”
“You said in your statement that what was in column one was in column two,” Beck charges.“That just wasn’t true, was it, sir? You never even looked at the ballot.”
“It contained a mistake,” Hengartner says.
“When you signed that sworn document, you were relying on the Gore legal team to give you the straight facts, weren’t you?”