by Jake Tapper
Some reporters who hear about this conspiracy theory begin to wonder about Gore. Is he completely losing it?
Martin and Lewis commence at 7 A.M. Wednesday. Ninety minutes later they break, and the Bush lawyers run down a flight to make the same arguments before Judge Clark. Half an hour after Clark finishes up, Lewis will resume and preside all through the night, until the Martin County case is done. Two hard facts collide in both these cases: one, clearly both Goard and Robbins were extending preferential treatment to the GOP, and engaging in some shady dealings as it pertained to Florida law, specifically the 1998 absentee-ballot application statute. The second: there’s nothing really to be done about it since no one is alleging that anyone other than actual voters cast their ballots.
Clark gets to this right off the bat. There are two issues, she says. “The first is whether the addition… or completion of voter registration ID numbers is sufficient to invalidate the absentee ballots. And then the second issue I see is whether or not the Democratic Party and Republican Party were treated differently… to the extent that the validity or integrity of the election process was compromised.”
Richman says that the first question is rooted in the matter of Goard’s “intentional wrongdoing.” Goard, he points out, “testified under oath that she did not know the name of the Republican operative, when the testimony will clearly show that she did.” To the Democratic team, that’s sure evidence she was trying to cover something up.
But in his opening argument, Bristow points out that state Democratic chair, Bob Poe, knew what Leach was doing while it was going on, before Election Day.“He knew that he could go into that office, and he did not. He knew that if there was any kind of violation of law, he could have gone ahead, and he could have filed suit, and he could have done something about it beforehand.”
Helping Bristow as an intervening attorney representing absentee voters in both the Seminole and Martin County cases is—despite his rather soft, inclusive rhetoric in this case—one of the more active members of Florida’s Christian Right. Matthew Staver, president and general counsel of the Christian activist Liberty Counsel, hosts a conservative radio talk show and represents all sorts of conservative causes in courts, defending prayer in Duval County public schools, filing a brief against gay and lesbian civil unions in Vermont, and representing the Rev. Ed Martin, an anti–abortion rights protester accused of harassing women entering the Ocala Women’s Center. But Staver is careful not to mention any of this now, and not a single member of the media realizes who he really is.
Staver says that many of his clients voted absentee “because they are disabled…. We should not let this hypertechnicality disenfranchise these voters.” Staver trots out Helga Powell, born in Nuremberg and raised as a member of the Hitler Youth. The Bush-backing former Nazi doesn’t want to be disenfranchised, knowing “firsthand the price that citizens of a country pay when they have no right to vote for representatives and have no voice in the governance of their country.” When it was the concentration camp survivors in Palm Beach who were confused, the Republicans sure didn’t seem as sympathetic as they do now toward this poor alumna of the Hitler youth.
The fun starts when the Democrats and Republicans start stealing one another’s rhetoric from the Sauls case. Seminole County’s attorney, Terry Young, cribs from Gore when he says that a ballot “is not just a piece of paper. It is a voice. It’s a right to be heard, it’s a right to participate. And a voice at all costs should not be silenced.” The Democrats, conversely, are suddenly strict adherents to the letter of the law. Richman calls Steven Hall to the stand. Hall, a painter and construction worker who served as the campaign manager for a Democratic candidate for state representative, met with Goard on August 18, and in a “tense” and unwelcoming meeting, Goard told him that if absentee-ballot request forms didn’t have all the necessary information, “they would be discarded.” Richman reads the deposition of a Republican voter and Korean War veteran, Ronald Livingston, who in September 1998 wanted an absentee ballot and was given no help by Goard, no help at all. He was told he’d need to put his request in writing, with his voter ID number, but Goard’s office wouldn’t tell him what his number was. Two years later, when Livingston found out that she had bent over backward to help the state GOP, he called her to complain.“Hey, if you don’t like it, file a protest,” she replied. Richman establishes fairly conclusively that Goard’s story kept changing—first she said Leach had been in her office for one or two days, then ten or eleven, then Leach said it was closer to fifteen, and one of Goard’s subordinates said it might have been three full weeks. Richman also hammers home the question of whether or not Goard was open about knowing Leach, or either of the field operatives who assisted him, or the GOP official who first arranged their little expedition. Even Leach says in his deposition that “clearly” she knew them.
Richman even establishes some sound arguments pertaining to the law. As in the Carollo-Suarez mayor’s race, absentee ballots are in Florida case law considered a privilege, not a right, and they have been tossed before. And clearly the elections office was compromised in some way; these offices are not meant to be temporary work spaces for partisan operatives. Did Leach tamper with any other absentee ballots? There’s no proof that he did. But he sure could have, and in that, the process was arguably sullied.
But there’s a big “but”: Richman has found no smoking gun that shows that Democratic voters suffered because of Goard’s actions—the Democratic Party’s absentee-ballot request form, after all, in almost all cases had the space for the voter ID number properly filled in. And an elections employee testifies that of the 263 applicants that didn’t receive an absentee ballot, 176 of these were Republicans and 16 were Democrats.
Richman calls to the stand a statistician, Cal Berkeley economics professor James DeLong, who offers a suggestion, based on proportions, of how many votes they can throw out so as to be fair, while not tossing all 15,000. But as with Hengartner, DeLong’s inexperience serves Bush well. Richman sees him fall apart on cross-examination, expressing opinions outside his area of expertise. He sees from Clark’s body language that she’s not accepting his testimony. Or forget body language: her language is enough for Richman to know he’s in trouble. In his rebuttal closing argument, Richman says that this “is a case that has to send a message and establish a very important precedent….What else would come next if the court does not enforce the law?”
“My job is not to send a message,” Clark snaps back.“My job is to rule on the case that is before me. My job is to apply the existing case law and statutory law to the facts as I find them from the evidence.”
Court is in recess. Thirty minutes to Martin County.
Except: Where the hell is Judge Lewis?
Having not gotten much exercise since this all began, while the ball was in Clark’s court, Lewis went to shoot a little hoop. He brought his cell phone, but it didn’t ring. Court administrators are going bananas. Where the hell is he? At 7:20, Lewis’s wife runs into the gym. “Clark got through early!” she says. “They’re looking for you! They can’t find you!”
“Oh, my goodness,” Lewis says. After a quick shower, he “hauls buggy” back to court.
Incidentally, just in case anyone was wondering what the Florida legislature intends to do, on Wednesday, McKay and Feeney sign a proclamation that Florida’s 25 electors are going to go to Bush.
“The action taken today is done so with considerable reluctance on my part,” says McKay, whose affair with that lobbyist he left his wife for was probably consummated with considerable reluctance as well. “My primary objective is simple: to ensure that the voters of Florida are not disenfranchised….If the election disputes are resolved by December 12, there may be a possibility that the legislature will not have to act,” he explains.
Feeney is asked about the extent to which he and McKay have been setting up the safety net in cahoots with the Bushies.
“I haven’t had any contact with a
ny members of the Bush team probably since”—and here he pauses a second to think about it—“in a good twenty-four hours,” he reassures the world.
Democrats “have raised concern,” another reporter asks, “not just about both of you supporting George W. Bush, but about the fact that you are electors, about the fact that Mr. Feeney ran with Jeb Bush in his unsuccessful bid for governor. How do you convince the American people, whose votes are all at stake, that this is not partisan but a constitutional concern?”
“I think what they need to do is watch us,” says McKay. “The proof’s in the pudding.”
And what does house minority leader Lois Frankel think about all this?
“I think it would be naive to believe that the speaker of the Florida house and the senate president are really calling the shots here,” she says. “I think that they waited as long as they could in hopes that the courts may have decided in Mr. Bush’s favor or that Al Gore would have conceded. And that hasn’t happened, and I think what we see is just them following through on something that they had predetermined.
“The only thing missing from the proclamation today was the postmark from Austin, Texas,” she says.
Bush spokesman Dan Bartlett’s lie about the Bushies’ coordination with the legislature has just been rebutted by no less than Feeney himself. So finally, on December 8, thirty days after communications began between Feeney and the Bush team—on the one-month anniversary of Rubottom’s communiqué with Jeb counsel Canady—Tucker Eskew acknowledges that Bush lawyers “provided legal interpretations when asked by legislators.
“No one could be surprised by that,” Eskew adds. Indeed. Thanks for that.
The Martin County case has a few different shades of gray. As opposed to Leach, the Republican operative in this case is evasive, responding, “I don’t recall” or “I don’t know” more than thirty-five times in his deposition. Additionally, the man Hauck reported to, Martin County’s GOP committeeman, Charlie Kane, is a former CIA security chief. But in the end, other than the fact that Hauck was permitted to actually remove the ballots from the elections office, the issues are the same, and the parties assume the same rhetorical exchange.
Robert Harper, representing the Democrats, again preaches the Gospel of Hypertechnicalities, urging that the 9,000 or so ballots be tossed, since absentee voting “is not a right, but a privilege.” Attorney Edward Stafman tells Lewis that previous case law could have Lewis “throwing out all of the absentee ballots” as a result of the Republicans’ shenanigans, but if not, he could at least go for some sort of proportionate slice—like removing 673 of the 9,000-some ballots. Which— hey! Whaddaya know?!—would also deliver the presidency to Gore.
Bristow counters that this is all nonsense. No vote should be tossed as a result of what was merely a “hypertechnical computer glitch fix,” he says.
The Martin County case treads until 12:30 A.M. Thursday, then picks up again seven and a half hours later before trudging to a close.
“By noon tomorrow I will have something,” Lewis says, “and I want to consult with Judge Clark, who has a similar case—similar issues….But I hope at least by lunch tomorrow I’ll have something for you.”
And then Lewis and Clark go off into the wilderness to decide just what they’re supposed to do.
A bunch of the Bush lawyers and staffers convene for a nice dinner in one of the two upstairs dining rooms at Chez Pierre. Unfortunately, an FSU fraternity mixer is raging in the other one.
Don Evans and Missouri senator John Ashcroft are special guests of the small group. They’re here to buck up the troops, thank everyone. It’s almost over, they say. The end is near. But every minute or so, the door to their room opens and Evans’s and Ashcroft’s words to the troops are drowned out by the sounds of Rick James’s “Superfreak”: “That girl is pretty wild now / (The girl’s a super freak).”
One last dinner for the Democrats at the Governor’s Club Wednesday night. Klain isn’t here; he pulled an all-nighter the night before, but Boies is, in his white turtleneck, one of the only variations in what seems to be a never-ending supply of the exact same nondescript dark suit.
“Win, lose, or draw, we’ve accomplished some important things,” Boies tells the team. “People all across the country know in their hearts that Al Gore won Florida. The facts are on our side, the law is on our side, and now it’s up to the court to do the right thing.”
19
“A little matter down the road.”
It’s Last Call at the Last Chance Bar & Grill.
“Hear ye, hear ye, hear ye!” bellows the marshal. “The supreme court of the great state of Florida is now in session! All who have cause to plea, draw near, give attention, and you shall be heard!” And indeed, David Boies once again draws near and gives attention, explaining Al Gore’s cause to plea.
But before he can do so, Chief Justice Charlie Wells has a bone to pick. Last time they all were here, no one said a lick about the U.S. Supreme Court case McPherson v. Blacker. But then they went off to the SCOTUS, and McPherson v. Blacker was all the rage.
Boies insists McPherson v. Blacker shouldn’t mean anything to Wells, because in Florida,“the legislature has provided this court with the authority to interpret these laws.” What’s more, Boies says, it’s true that the legislature has the “power to determine the manner of the selection. I don’t think they’ve got the plenary power to determine the time of choosing.” That power was left up to the U.S. Congress, which picked November 7, so clearly it’s the election method, not the schedule, that the legislature has discretion over. (As has been the case throughout this mess, when federal law works, that’s the way the Gorebies or Bushies will argue. If state law can be read in their favor, they’ll go state. When it comes to consistently choosing one or the other, both sides have dimpled chad.)
Despite Boies’s assurances, Wells is clearly fired up, almost like he’s mad at what Boies talked him into doing last time. “What you’re asking this court to do is to have the courts of this state get involved in any instance in which someone comes in and merely alleges that there needs to be a count…. Someone would say they lost by one hundred thirty thousand votes in Dade County, and we’d have to have the court count those votes.”
Boies, of course, sees it differently. “This is not a situation in which somebody has simply come in and said, ‘We’ve lost. We’d like to have a recount under the contest statute.’ This is a situation in which we have identified specific votes, many of which were agreed by the district court were votes in which you could clearly discern the voter’s intent.” He lays them out, including the nonexistent 215 Palm Beach County votes, citing John Ahmann, who “testified that you had to have a manual recount in a close election” if you use punch-card ballots.
So why not hand-recount all punch-card ballot counties instead of just those three? Quince asks.
Boies’s answer is no more satisfactory to Quince than it is to many of us. “That’s where ballots were contested,” he says.
“Did anyone ever pick up one of the ballots and hold it up and show it to the judge and say, ‘This is an example of a ballot which was rejected but [on] which a vote is reflected?’” Harding asks. Boies says no. Boies says, “although we did tender them in evidence and we did ask him [Sauls] repeatedly to look at the ballots as part of the evidence.”
This is one of the central thorns the Bushies have snared the Gore lawyers’ britches on. From the get-go, the Gorebies had asked Sauls to look at the ballots, to examine them, so he could see that there were uncounted votes. (Not that Boies thought he needed to do so—to him, the mere fact that so many votes had been found in the 20 percent of the 10,750 Miami-Dade undervotes that had been counted indicated that there were votes in the other 9,000.) But every time the Gore legal team tried to get Sauls to take a gander, the Bushies made the argument that Richard makes today, when asked by Justice Anstead if Sauls examined the evidence: “I think there was no basis in law for the trial court to d
o that until after the plaintiff had carried its burden of proving that there was some necessity to do so.” That is, until the Gore lawyers proved the undervotes contained votes, Sauls had no need to examine the ballots. But until Sauls examined the ballots, it was impossible to prove they contained votes.
Richard (who is the main man today; Carvin’s up in Washington, D.C., working with Olson and the other constitutional lawyers, preparing the brief for when the Florida Supreme Court responds to the SCOTUS homework assignment from Monday) immediately agrees with Justice Wells’s take on McPherson. “This court does not have the ability in this particular case, involving presidential electors, to disregard the statutory scheme and fashion a remedy based upon extraordinary equitable powers of the court set forth in the constitution,” Richard says.“The legislature… has given us five, and only five, grounds for an election contest, and one of them is not that there is a close election in which Votomatic machines are used.”