Down & Dirty

by Jake Tapper

  When the Third District Court of Appeals rejected the Gore team’s Wednesday, November 22, writ of mandamus to force the Miami-Dade canvassing board to continue its hand recount, the DCA judges did so because they felt unable to compel someone to accomplish the impossible. But the Third DCA also made mention that while the canvassing board had the discretion to order a hand recount or not, it did not have the discretion to stop in the middle of the process. When Miami Bushie Bobby Martinez read that section, he winced. He thought it gratuitous, thought it might come back to bite the Bushies in the ass. And here it comes.

  The DCA found “that they did have a mandatory obligation to continue the count,” Anstead says of the Miami-Dade canvassing board. “How can we overturn that ruling?”

  “This court also said you must have votes by November 26,” Richard replies, throwing the court’s own fabricated deadline back in its face. “And the canvassing board, having made the decision it was impossible, had two choices. One was to not continue the count. And the second was to send up a partial count, which, according to the evidence before the board, would not only have cut off a substantial number of precincts that might have been significantly different from the result, but also would have disenfranchised a particular minority within Dade County.

  “They have not met their burden of proof,” Richard insists. “The only thing they did was put two witnesses on the stand to say that they were speculating that Votomatic machines are inherently unreliable. And so, in essence, what Mr. Boies is saying to this court is any time there’s a Votomatic machine in a close election and somebody says count all the ballots, you must do so.”

  A supreme court case is like an amusement park game in which you have to knock down the bare majority of cans. They need four here. And Justice Leander Shaw, Jr.—Florida’s first African-American chief justice (the chief justice position rotates)—doesn’t look like a can that Boies can knock down. Shaw speaks only three times, but every time, it’s to talk about Sauls, and the fact that he found “that there was no credible statistical evidence and no other competent, substantial evidence to establish by a preponderance of a reasonable probability that the results of a statewide election in the state of Florida would have been different.”

  Boies tries to argue that Sauls made three errors of law, but even Al Gore, watching on TV hundreds of miles away, can see that Shaw’s a lost cause.

  As is Wells. On rebuttal, Wells makes his displeasure even clearer. How could Miami-Dade have been counting only its undervotes? That’s not what the law says. “Shall recount manually, recount all the ballots,” Wells says, quoting the statute. “That would definitely be a change in the law.” You can tell he’s bitter about all the cries that his court is made up of crazy liberal activists. Wells was once talked about as a possible senator, governor. Now this is his legacy.

  Boies says that it’s possible to interpret the law a different way, manually recount all the ballots that have been requested to be recounted. “And they stopped only because they didn’t have time,” Boies adds, forgoing the allegations of Miami-Dade “intimidation.”

  Pariente asks, “In terms of the remedy… what is the time—we’re here today, December seventh—what is the time parameter for being able to complete a count of those undervotes?” And how much time does it take to count undervotes?

  “The record shows that the canvassing boards were doing about three hundred an hour,” Boies says.“That was obviously slower than it would be if it were being done by one judicial officer. We believe these ballots can be counted in the time available. Obviously, time is getting very short. We have been trying to get these ballots counted, as this court knows, for many weeks now.”

  Anstead has one last question for the Gore team, about “the problem that continues to reoccur in the case of not having recounts in other counties where the same voting mechanisms were used and where there may have been undervotes, but that the proportion of votes, for instance, may have favored your opponent.” Not only that, but there are five days until December 12—the date that, during the first Florida Supreme Court arguments, assistant attorney general Hancock had asserted, and Boies had readily agreed, is the deadline.“How can we resolve an issue like that at this late date?”

  Boies says,“There’s never been a rule that says you have to recount all the ballots in an election contest.”

  “Thank you, Mr. Boies,” Justice Wells says. “I think your time is up.”

  How’d it go? How’d it go?

  Very few in the Florida legal community seem to think the Florida Supreme Court is going to rule for Gore. Daley doesn’t think so, either. Gore is more optimistic, though he’s ruled out the votes of Shaw and Wells. Boies and Terrell go to dine at Andrew’s Capital Bar and Grill—one suspects Boies didn’t order the “Jeb-burger”—and they agree on one thing: the court will be split 4 to 3. They just disagree on which side will get the swing vote. Richard thinks he’s going to win, maybe even 5 to 2.

  In Austin, Bush is continuing as he’s instructed. The self-coronation goes on. In addition to picking his cabinet, Bush has a lot of homework to do. This has been a frustrating thing for some of his advisers; Bob Zoellick and Condoleezza Rice have lost their patience with Bush in the past: he’s unwilling to read a memo longer than a page. “General Powell and I discussed the Middle East,” Bush says on Wednesday. “Condi [Rice] and I are in constant discussion about the Middle East. And what concerns me is peace.”

  Yowza. On Friday, Bush opens the governor’s mansion to the press again. In a small room called the conservatory, Bush sits at a small table with Karen Hughes, Karl Rove, and Andy Card. X-mas decorations about; one has Santa twirling a lasso.

  “We’ve just been in a conference call with our folks in Washington and continuing making progress on the White House setup and just had a long discussion with Secretary Cheney and [gubernatorial chief of staff] Clay Johnson about potential cabinet officers,” Bush says. “I also had a good visit with Jimmy Baker today. Our folks in Florida anticipate a decision, and they feel like our lawyers made a good, strong case….We are hopeful that we’ll finally see some finality when it comes to this election….We’re prepared to, if need be, take our case back to the Supreme Court. But I hope that doesn’t have to happen.”

  Have you finalized White House staff?

  “I haven’t decided on a couple of them,” he jokes, casting sidelong glances at Rove and Hughes. “I don’t know whether or not they can pass the background checks, if yaknowwhatImean.” Big yuks all around.

  Lewis and Clark spend Thursday conferring, talking about their interpretations of the law, how they’re going to rule.

  This is exactly what Gerald Richman was worried about when he heard Lewis say that he was going to consult with Clark. Lewis is more conservative than Clark, he thinks. Is he going to sway her views? Of course, in many ways, this is in the same neighborhood as the attitude of the Bushies who assumed she was going to march lockstep with whatever Rev. Jackson wanted her to do.

  Clark, in fact, is decidedly not doing so, she is ruling on the law. Both Lewis and Clark are leaning heavily on the 1976 Florida Supreme Court precedent Boardman v. Esteva, * one of Boies’s favorite cites when he was arguing for an extension of the certification deadline. Boardman argues that when voters are in substantial compliance with the law, their votes should be heard—with that value paramount, that “courts are to overturn” elections “only for compelling reasons when there are clear, substantial departures from essential requirements of law.” Which does not seem to be the case here.

  “The proof offered at trial failed to show that she [Goard] treated other political parties differently than she treated the Republican Party,” Clark writes. “That the supervisor’s judgment may be seriously questioned and that her actions invited public and legal scrutiny do not rise to the level of a showing of fraud, gross negligence, or intentional wrongdoing….Faulty judgment is not illegal, unless the legislature declares it so.”

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bsp; Lewis comes to essentially the same conclusions. Elections Supervisor Robbins clearly allowed violations of election office protocol, but the same laws in question provide no remedy for such violations.And more important, Lewis writes of Martin County,“there is no evidence of fraud or other irregularities in the actual casting of the ballots, or the counting of the ballots.”

  Early afternoon on Friday, Leon County Court administrator Terre Cass reads the summary of both Clark’s and Lewis’s decisions. “Based upon the evidence presented and in accord with the controlling legal precedent of the Florida Supreme Court, the trial courts in both the Seminole County case and the Martin County case have determined that despite irregularities in the request for absentee ballots, neither the sanctity of the ballots nor the integrity of the elections has been compromised and that the election results—”

  The Bush-backing crowd cheers. HURRAY!

  “Hold on,” Cass says. “‘— and that the election results reflect a full and fair expression of the will of the voters. Accordingly, all relief requested by the plaintiffs has been denied and judgment entered for the defendants.’ Thank you.”

  A Bush press conference breaks out.“We are, of course, gratified with the two strong rulings from the two judges here on the Leon County circuit court affirming the right to vote,” Ginsberg says. Quite wary of Clark before, Ginsberg now seems as though he’s about to break into a chorus of “Ebony and Ivory.”

  A reporter asks Bristow what he thinks about a comment Richman made, arguing that the state attorney should pursue criminal charges against Goard.

  “This is a very fine woman,” Bristow says, “and I think it is absolutely pure one hundred percent bogus.”

  Do you regret trying to get Clark recused?

  “Well, we—that was a motion to bring to her attention an issue, so that she could consider it,” Bristow says. “We never wanted history to look back and have any second guess about this proceeding. She had it, she considered it; she decided that she did not have an issue that would influence her. And as everybody on our team and every team knows, she handled this case in a masterful way.”

  Is this a final blow to the Gore campaign, in your opinion?

  “We have one more case still pending,” Richard says, motioning toward the Florida Supreme Court. “A little matter down the road.”

  Florida Supreme Court spokesman Craig Waters finally has this all down to a science. Being fairly Web-savvy, he was already ahead of the game when it came to preparation to put court materials on-line in the blink of an eye—he even set up a secondary backup server for when the first Web site gets too much traffic, which it does. On November 13, http://www.flcourts.org scored two thousand hits; by now they’re getting 3.5 million hits a day. His one mistake was to have included his cell phone number on the site, resulting in all sorts of yahoos buzzing him in the middle of the night, urging him to tell the Florida Supreme Court justices how to vote.

  “The court today has issued its opinion in the case of AlbertGore,Jr.,versus Katherine Harris, George W. Bush, and others,” Waters says.“By a vote of four to three, the majority of the court has reversed the decision of the trial court in part. It has further ordered that the circuit court of the Second Judicial Circuit here in Tallahassee shall immediately begin a manual recount of the approximately nine thousand Miami-Dade ballots that registered the undervotes.

  “In addition, the circuit court shall enter orders insuring the inclusion of the additional two hundred fifteen legal votes for Vice President Gore in Palm Beach County, and the one hundred sixty-eight additional legal votes for Miami-Dade.

  “In addition, the circuit court shall order a manual recount of all undervotes in any Florida county where such a recount has not yet occurred. Because time is of the essence, the recount shall commence immediately. In tabulating what constitutes a legal vote, the standard to be used is the one provided by the legislature. A vote shall be counted where there is a clear indication of the intent of the voter.

  “Chief Justice Charles T. Wells and Justice Major B. Harding have written dissenting opinions. Justice Leander J. Shaw, Jr., has joined in the dissenting opinion of Justice Harding. Thank you.”

  The patient has a heartbeat. Al Gore’s execution has been stayed. *

  “It’s even better than I expected,” Boies says when he hears the ruling.

  From reading the documents it is clear that Justice Wells didn’t just write a dissenting opinion. He wrote hate mail, a blistering condemnation of his colleagues’ ruling, one that Baker reads from liberally soon after. The majority’s decision “cannot withstand the scrutiny which will certainly immediately follow under the U.S. Constitution.” Wells stated that the decision has “no foundation in the law in Florida as it existed on November 7, 2000.

  “Prolonging the judicial process in this counting process propels this country and this state into an unprecedented and unnecessary constitutional crisis,” he continues, a crisis that will inflict “substantial damage to our country, to our state, and to this court as an institution.”

  Baker immediately announces that his legal team is on the case. In Atlanta, at the Eleventh Circuit Court of Appeals, the Bush legal team petitions for an emergency hearing. In Washington, D.C., the team will deliver an emergency petition to U.S. Supreme Court justice Anthony Kennedy, under whose purview the eleventh circuit lies, to stay the Florida court’s ruling until the eleventh circuit rules. The court’s “reasoning and result places the court once again at odds with the sound judgment” of lower courts, the Florida legislature, and local canvassing boards, Baker said. He said the court’s decision “could ultimately disenfranchise Florida’s votes in the electoral college.”

  “This is what happens when, for the first time in modern history, a candidate resorts to lawsuits to try to overturn the outcome of an election for president,” says Baker. “It is very sad—for Florida, for the nation, and for our democracy.”

  Christopher listens to this. Oh, please, he thinks, finding Baker’s remarks over the top.

  However much Baker may now love to quote Wells, he was but a dissenter; his four colleagues on the bench wrote the decision that matters. And they think Gore is fundamentally right: there are votes that have yet to be counted.

  “The Legislature has expressly recognized the will of the people of Florida as the guiding principle for the selection of all elected officials… whether they be county commissioners or presidential electors,” said the four. “The clear message… is that every citizen’s vote be counted whenever possible.” They seem most concerned about Sauls’s refusal to let Boies show him even one ballot. It presented Gore with “the ultimate Catch-22,” they wrote,“acceptance of the only evidence that will resolve the issue but a refusal to examine such evidence.”

  They even sent out a footnote to their three colleagues, saying that “the dissents would have us throw up our hands and say that because of looming deadlines and practical difficulties, we should give up any attempt to have the election of presidential electors rest upon the vote of Florida citizens as mandated by the Legislature….We can only do the best we can to carry out our sworn responsibilities to the justice system and its role in the process.”

  Daley immediately heralds the court ruling as “an important victory for what has been Al Gore and Joe Lieberman’s basic principle since Election Day, and that is a full and a fair count of all the votes.”

  It’s a “victory for fairness and accountability and for our democracy itself,” Daley says, adding that the court “wisely” ordered that the hand recount take place “in every Florida county where undervotes have yet to be counted. Then Florida and America will know with certainty who really won the presidency.” Well, if that’s so wise, it would have been nice if Boies hadn’t been arguing against it. But whatever.

  Carvin’s cursing at his computer. The first time the Florida Supreme Court ruled, the clerks were nice enough to give them a fifteen-minute heads-up, so they could log on before the r
est of the world did, and download and print the ruling. This time they got no such call. And the server is busy. Busy. Busy. For forty-five minutes Carvin can’t get on the site.

  Finally he gets through. Downloads it, prints it out. He starts looking for the part that responds to the SCOTUS remand from earlier in the week. Carvin’s been working on that part of the brief, anticipating their argument, and he wants to see how close he came to guessing how they would justify their action.

  But there’s nothing there.

  Nothing about the remand. No response at all. They just ignored the Supreme Court of the United States. Who does that?! he wonders. When a cop pulls you over for going sixty and you get off with just a warning, you don’t pull out and start doing eighty-five!

  “We won,” he says to himself. No way the U.S. Supreme Court doesn’t get involved now. George W. Bush has just sealed the presidency.

  There are some who aren’t so shocked by Chief Justice Wells’s stinging dissent: those who know him.

  “That’s a typical Charlie Wells dissent,” says former chief justice Kogan with a chuckle, when I ring him up. “This is not something that is new. Read some of his decisions in capital cases, and you’ll find that’s what he does. He’ll be just as strident, and he’ll take the whole court to task when they don’t agree with him.”

  What of Wells’s warning of a constitutional crisis?

  “That’s going overboard, way overboard,” Kogan says.“This republic has endured for over two hundred twenty-five years. I dare say it’s going to last much longer than that. People have a way of healing very quickly.”

  But what of the “substantial damage” he says the court will suffer because of its rather bold ruling?

  “Oh, that’s just Wells,” Kogan says. “He says that a lot of times when he writes his dissents. It’s just the way in which he does things. I don’t think they risked their credibility at all.”