Down & Dirty

by Jake Tapper

  Still, Richman is mad. They have no direct support from Gore financially, and Lieberman himself has even publicly distanced himself from the case. What if Judge Clark were to hear that even Gore didn’t support their actions?

  But Kirsch’s involvement does not end here. He hires a PR agent to the tune of $50,000 to pitch the Seminole and Martin stories to the media—many of whom seem to utilize the same tiresome clichés: “Gore’s ‘Hail Mary’ pass,” for instance. On Sunday, November 26, Kirsch also phones up and retains an attorney, William H. Davis of the Tallahassee law firm Wadsworth & Davis, whom he regales with theories of statistical extrapolation and proportional allotment of Palm Beach County overvotes. At first, the programmer’s riffs on votes as data and such strike Davis as a tad eccentric. But soon Kirsch’s theories seem quite brilliant—if something of a legal stretch.

  Florida was a statistical tie, Kirsch says. So why not give Bush 12½ electoral votes and Gore 12½? He devises many methods on what might serve as a reasonable remedy for the butterfly ballot case—giving ½ a vote to Gore and ½ to Buchanan for each Gore-Buchanan overvote. Or random allocation of these overvotes to all the candidates. Or proportional allocation. The one result all of Kirsch’s various number crunchings have in common: each one of these plans would hand Gore the presidency.

  On Monday, November 27, Davis speaks with Dexter Douglass and David Boies about Kirsch’s various remedies. They’re gracious but not really interested. They’ve decided against pursuing anything in the butterfly ballot realm, they say. Kirsch’s remedies end up working their way into various footnotes and supporting documents in the Seminole, Martin, and butterfly ballot lawsuits. But nothing really ever comes of the hard work and wacky ideas of the California billionaire who founded Infoseek.

  Before Judge Sauls can give his judgment on Monday, December 4, the SCOTUS steps in. The SCOTUS justices had spent the weekend unsuccessfully trying to find a way that they could rule unanimously. Breyer, Ginsburg, Kennedy, and Stevens saw the Florida Supreme Court as having tried to iron out contradictions in the state law; O’Connor, Scalia, Souter, Thomas, and Rehnquist felt the court essentially rewrote the law that had set certification for November 14. Moreover, they were not satisfied that their Florida colleagues had done so using sound legal reasoning.

  Justice Ginsburg had been the one with the brainstorm; during oral arguments on Friday, she had said, “I suppose there would be a possibility for this Court to remand for clarification.”And so sayeth the SCOTUS on Monday morning: “After reviewing the opinion of the Florida Supreme Court, we find that there is considerable uncertainty as to the precise grounds for the decision. This is sufficient reason for us to decline at this time to review the federal questions asserted to be present…. The judgment of the Supreme Court of Florida is therefore vacated, * and the case is remanded for further proceedings not inconsistent with this opinion.”

  This is not the victory they could have been given, Carvin explains to one of his colleagues in Tallahassee, but it’s good enough. It smacks down the Florida court’s decision, essentially saying that the SCOTUS is mystified, unanimously, as to how they came up with that November 26 deadline. So mystified that they’ve sent the whole thing back with a demand for a better explanation.

  The Bushies obviously feel this bodes well for them in the different case in front of Sauls. With Sauls in his chambers mulling over the most important judicial decision of his life, it will surely help their case for him to know that all nine SCOTUS justices think that the Florida Supreme Court was wiggety-whacked when they came up with that November 26 date.

  Still, predictions of what’s going to happen next run the gamut. The strutting Beck is confident, as he always is in every case, that they’ll win on every count. Bartlit wonders if Sauls might rule for them while also ordering some counting to take place in anticipation that he’ll get reversed by the Florida Supreme Court. Ginsberg, as always, is the worrywart, refusing to take anything for granted, giving into his never-ending, world-is-too-much-with-him angst until the facts prove his pessimism wrong.

  The Gorebies tend to side with Beck on this one. Anticipating a resounding bitch-slap, they write up their notice of appeal, typed nice and neat, and stick it in Jeremy Bash’s briefcase.

  At 4:40 P.M., Sauls calls us back into Courtroom 3-D. Beck was right: Sauls gives the Gorebies nothing, not a thing, not a scratch or a lick or a whit of what they wanted. A big fat Southern-fried No.

  “The court must find for a fact that a legal basis for recount must exist before ordering such a recount,” Sauls drawls in his North Florida accent, glasses perched on the edge of his nose. “It’s not enough to show a reasonable possibility” that the outcome of the election would have been changed because of illegal votes counted or legal votes not counted, Sauls says. “Rah-ther, you have shown a reasonable probability. In this case, there is no credible statistical evidence” that such a case was proved. The Gore legal team, Sauls says, didn’t “establish any illegality, dishonesty, gross negligence, improper influence, coercion, or fraud in the balloting and counting process.”

  One by one, Sauls goes down the Gore claims and crosses them off the list of arguments he was willing to buy. They didn’t show that votes from a partial hand recount should be counted. They didn’t show that the Miami-Dade, Palm Beach, or Nassau county canvassing boards abused their discretion.

  He declares the matter over, notes that the hundreds of thousands of ballots that had been shipped to Tallahassee via Ryder Truck would remain in court custody pending an appeal, and leaves the room.

  Christopher’s associate from Los Angeles, Mark Steinberg, motions over to Bash, sends him on his way. The appeal will be filed before any of the Gore lawyers even leave the room. Boies, Douglass, Zack, Berger, Steinberg, et al., politely congratulate the victors who so ably represented Bush: Richard, Beck, Terrell, Bartlit, Ginsberg, et al.

  “David, nobody else could have even made this close,” Terrell says to Boies.

  Boies walks out of the chambers with a big grin plastered on his face, very Gore-like in a way.

  When are you going to appeal?

  “Right now,” he says.

  Douglass is asked the same question.

  “It’s probably being done as we speak,” he says.

  Terrell approaches Terry Madigan, one of the attorneys who represented actual Florida voters—Bush backers, all—who were allowed to act as intervenors.

  “We appreciated it,” Terrell says, presumably of Madigan’s efforts.

  “Thank you for saying that,” Madigan says.

  “Well, we mean it,” Terrell says.

  Cameras and boom mikes surrounding them like piranhas, the Gore team turns left, to a holding room near the circuit court judges’ chambers, while the Bush team turns right, to the court administrator’s office.

  In the Bush room, there’s a huddle among the twelve lawyers, a round of bear hugs and back-slapping. In Goreland, things are less jubilant. Boies asks if they should go down to the rotunda on the first floor and talk to the press. Hattaway tells him, “We can hold here” since “the Republicans beat us to the podium.”

  “No, let’s go down and see what the other side has to say,” Boies says.

  Klock is at the podium when they arrive. He’s describing Sauls as “a very thoughtful judge” who pays “a lot of attention to the law.”

  Turns out the rest of the Bush team is still celebrating, so Boies, Douglass, and Zack approach the podium, though only Boies speaks. Before he can even finish, the Bush lawyers show up and huddle at the side of the media throng before politely retreating to near the information desk several yards away. Boies faults Sauls for not even looking at the ballots in dispute. “You can’t resolve that contest without actually looking at the ballots,” he says. He says he’s never heard of such a case, when a judge in an election contest didn’t even look at the ballots in question. He adds that the fact that they were examined by canvassing boards is irrelevant to this
particular legal phase. “The contest statute does not provide for any discretion by the canvassing boards,” he says. Then, momentously, Boies says: “They won. We lost. This is going to be resolved by the Florida Supreme Court. I think whoever wins at the Florida Supreme Court, we’ll accept that.”

  Next come the Republicans. Richard says that Sauls’s ruling much resembles his closing argument from Sunday night. “Judge Sauls hit every point,” he says. “He even got one I didn’t think of.”

  Which one was that?

  “I’m not going to tell you which one!” he smiles.

  Upstairs, behind Courtroom 3-D, Sauls thanks his staff. He takes a personal call, removes his robe, takes the elevator downstairs to the parking garage, and skedaddles on home.

  At one of the many TV tents across the street from the Florida Supreme Court, Mark Silva, the legendary political writer for the Miami Herald, kindly informs me that some of the Bush attorneys are celebrating at Andrew’s Capital Bar & Grill.

  I thank him and phone up ABC’s Chris Vlasto, who’s at the Doubletree. It’s good to have a wingman at times like these, and Vlasto has now become a pal. I tell him what Silva told me, and that I’ll call him back if the scoop proves correct. Which it does. Within minutes, Vlasto and I are downing drinks in the midst of Irv Terrell, Fred Bartlit and his wife, Jenna, and Phil Beck. Plus their many, many junior attorney admirers. Bartlit’s singing the praises of his graphics people; Beck’s downing beers in a circle of worship. Terrell chats with Jenna.

  They’re not too impressed with the Democrats’ case, the lawyers in this bar tell us while they rack up a $2,000 aggregate bar tab—which includes three bottles of fine champagne.

  “As an attorney, I was embarrassed about their case,” one says.

  When I tell another that the Bushies put on a great case, he says, “No, we didn’t. We put on a mediocre case. But they put on no case.”

  Bartlit tells me that he feels bad for Boies. “I told him, David, no one in corporate America is ever going to hire you again,” Bartlit says, honestly concerned for an adversary he respects.

  There’s time for idle chitchat, too. Vlasto and I tell Beck how eerily similar in manner he is to Kevin Spacey. He says we’re not the first to tell him that. Bartlit is flying off to Delaware tomorrow morning bright and early to represent Micron; for a sixty-eight-year-old, the dude has some major stamina. Terrell seems kind of eager to tell us that he’s pro-choice and supportive of civil rights. They all seem like pretty decent guys.

  I tell them all that if it weren’t for Vlasto, none of us would be standing here. They don’t understand. With Jackie Judd, Vlasto broke the story of Monica’s semen-stained dress, I say. Were it not for that, Clinton would still be denying the affair, and Gore would easily have gotten 1,000 or so Florida votes in the process. Drinks all around.

  On Tuesday Terrell tells Baker that for all intents and purposes he thinks that it’s over.

  “For what it’s worth,” he says, “we’ve got them pinned between a trial-court victory in front of a Democratic judge, which the nation has watched, and that Supreme Court remand.”

  But soon the Florida Supreme Court announces that it will hear arguments on Thursday for Gore’s appeal. So it ain’t over yet.

  With everything on hold, in Austin and Washington, D.C., it seems like the time to let the alpha males out, to show that they’re still around, to convey whatever messages they feel are in their self-interest. For Lieberman and Cheney, that message is that there is support for their causes on Capitol Hill. For Bush, that message is one of peace and understanding and a display of sympathy of questionable sincerity, if excellent execution, for Al Gore. For Gore, that message is desperation.

  “Good morning,” Bush says.“Had a good briefing this morning. I appreciate the administration’s willingness to send a member of the intelligence community over to give me a security briefing.” Does he think Gore should concede? “Well, that’s a decision the vice president has to make,” Bush says. “It’s a difficult decision, of course. And I can understand what he may be going through. It’s been a very interesting period of time for both of us. It’s been one month from today that the people actually showed up and started to vote, and here we stand—and here I stand, still, you know, without a clear verdict.”

  Standing with House Speaker Dennis Hastert of Illinois, and Oklahoma representative J. C. Watts, Cheney has a different take on that. “Obviously,” he says, “I think those two court decisions”—Sauls and SCOTUS—“were affirmations of the fact that, with respect to the vote in Florida, the votes have been counted and recounted and now certified. And Governor Bush and I feel that it validated the decisions that had been made previously, and indicate, once again, that we did prevail in the election in Florida.” There’s an election possibly being stolen—by one side or the other or possibly both—and this is a rare chance to put a major player on the spot. But again the press doesn’t bother. Instead, Cheney’s asked whether he pronounces his name CHAY-nee or CHEE-nee.“It really doesn’t matter,” he says.

  A few yards away is Lieberman. “Dick Gephardt made a point the other day that I think is so important to keep coming back to,” he says, “that next year, someone—some university or a group of students—will under a Freedom of Information action in Florida go in and gather these ballots and count them. And it will not be good for our country, it will not be good for whoever is president then, if the result of that count would justify the seating in office of someone other than the one who was there.”

  At NavObs, Gore comes out to the reporters. “I don’t really have an opening statement,” he says. “If you want to ask any questions, feel free.”

  Gore’s asked how efforts to toss the 25,000 absentee ballots in Seminole and Martin County jibe with his call to “count every vote.”

  Gore immediately starts babbling untruths about the cases. He says that in Seminole “there were more than enough votes to make the difference that were apparently thrown into—” He catches himself. “The applications for ballots were thrown into the trash can by the supervisor of elections there, apparently. Even though they were missing the same number that the Republican Party workers were allowed to come in and fix the other applications with.”

  He backs off a bit. “So I don’t want to speculate on what remedy might be—I’m not a party to that case or the Martin County case”—But he can’t help himself. “More than enough votes were potentially taken away from Democrats, because they were not given the same access that Republicans were,” he says.“Remember, according to what’s come out in that case—”

  He catches himself. “Again, I’m not a party to it, but I’ve read about it,” he says.

  “Apparently the Democratic Party chair was denied the opportunity to even look at the list of applications,” Gore says. “Whereas the Republican Party workers were allowed to roam around unsupervised, inside the office and bring their computers in, and fix all of the valid applications for one side, even as the Democrats were denied an opportunity to come in, denied a chance to even look at the applications, and those applications were thrown out. Now, that doesn’t seem fair to me.”

  No, it doesn’t seem fair. Of course, it also doesn’t seem true.

  An e-mail is soon sent within the DNC.

  Subject: gore clean up

  We need to get his seminole remarks, and the “democratic ballot applications that lacked the id number were thrown in the trash,” stuff checked and put in to talking points for everyone.

  He made a little news and we need to document what he said and get it out to everyone……

  asap—i have four reporters really pushing me on this.

  For all the various untruths, pufferies, evasions, exaggerations, and downright lies that Gore has said in his life—and been slammed repeatedly for, sometimes fairly, sometimes not so, during this election—his crazy riff on Seminole seems to go generally uncriticized in the media. It may be that reporters are busy, it may be that
no one’s really sure of what the facts are in the Seminole case. And it may be pity.

  In fact, a lot of reporters are imbued with odd feelings about Gore these days. Especially since Gore—who during his campaign once went sixty-two days without holding a press conference—is now reaching out to so many of them. He regularly phones up network TV anchors and producers, explaining where he’s coming from, pitching them stories. At one point he strikes at least one of these network superstars as having gone a bit off the deep end.

  One piece Gore pitches comes from an obscure news story written in 1989 about the Mack-MacKay Senate race, which has a speculative X-Files-esque conspiracy riff on the idea that Votomatic software could be programmed to not count, say, every tenth vote. There was and is no evidence to this theory, other than the fact that it could have happened! And in the face of the Gore legal team’s argument that there are design flaws inherent in punch-card ballots, it doesn’t even make much sense. But Gore becomes fascinated—some might say unhealthily so—by the story, which one of his old journalist buddies has found and brought to his attention. Gore calls a buddy at ABC, becomes convinced that 20/20 is going to investigate the matter. Some of his advisers suggest that such a story is just not going to happen so late in the game, but Gore is convinced that something’s there and that ABC will investigate.

  On Web site Voter.com, legendary Watergate newsman Carl Bernstein gets 1988 Florida senate candidate Buddy MacKay to riff, Parallax View– like, as to what might happen if some bad guy had the source codes. “What could have happened in 1988,” MacKay tells Bernstein, “and we couldn’t get to it at the time, was that the machines could have been programmed so that in my big precincts, every tenth vote got counted wrong.”

  But outside of Bernstein’s highly theoretical story, media investigations into the rather suspect charges don’t go very far. ABC News’s Cokie Roberts calls ABC News Florida legal consultant Steve Uhlfelder—who was one of MacKay’s co-counsels in that 1988 race—to see if there’s any truth to the matter. Uhlfelder tells her that it’s crazy talk; no one ever talked about a conspiratorial nefarious computer programmer back then. Punch-card ballot machines are anachronistic junk, that’s all. The primary reason for the vast number of undervotes was that the Mack-MacKay race was at the bottom of the first page of many counties’ ballots, under the presidential contest, so people didn’t notice it. They had suspected that the software might not be working right, but testing the software reassured them that it was functioning properly, at least in the counties where they tested it. But it was never about a purposefully inserted computer glitch, this “software discrimination” thing. Uhlfelder’s surprised that MacKay’s saying otherwise.