Down & Dirty

by Jake Tapper

  “The Library is CLOSED TODAY please see the branches,” reads the sign on the front door of the LeRoy Collins Leon County Public Library, at 200 W. Park Avenue. Inside, instead of a blood drive or an exhibit of elementary school art, four tables are set up and the recounting of the 9,000 or so remaining undervotes from Miami-Dade County has been under way since 9:55 A.M.

  Each table hosts two judges, two deputy clerks, and two observers—a Democrat and a Republican. David Leahy is in the house, as is county attorney Murray Greenberg.

  A typical counting period, at table three, begins with a deputy clerk walking to a side room and picking up a white envelope full of ballots, then taking it back to the table.

  “Precinct two-sixty-seven, eighteen votes,” the deputy clerk says, reading what’s written on the outside of the envelope.

  The other clerk opens the envelope and counts the ballots, verifying the number.

  Judge Charles Francis takes a ballot. “No vote,” he says.

  Judge Janet Ferris assesses the ballot as well. “No vote,” she agrees. There are five shoe boxes on each table. This ballot is placed in the box set aside for the “no” votes, as others are for Gore, Bush,“other,” and ballots on which the judges disagree. Lewis said Friday night that he would assess these disputed ballots himself. If any of the observers have any objections, they are told to record them and make their protests known at a later time. The observers seem to be scribbling furiously.

  Subdued and serious, the four tables are working briskly, assessing about 1,000 ballots an hour. At this rate, they could conceivably be done before the SCOTUS even rules on the Bush team’s request for an injunction to stop the count. Each table takes a brief lunch break—sandwiches and chips.

  “Precinct two-sixty-seven, eighteen votes,” ends up being 18 no votes. Table three soon goes through the 25 votes of precinct 372. Inspection of this envelope results in one additional Bush vote, 24 no votes.

  One out of every 10 or so ballots bears closer inspection. Most seem to be no-brainers.

  At 11:58 A.M., some chitchat from deputy clerks and deputy sheriffs in the back room seems to annoy Ferris and Francis. The judges glare; immediate silence follows.

  At table four, the result is a bit different. Judge Tim Harley and chief circuit court judge George Reynolds hit a run of Gore votes. Reynolds occasionally uses a magnifying glass. There seem to be no moments of the judges holding the ballot up to the light, perhaps divining the chad.

  At 12:10 P.M., Pataki walks in. He mingles in the back of the room.

  Outside the library, Sen. Barbara Boxer, D-Calif., speaks to TV cameras about the importance of “counting every vote,” while Bush protesters try to shout her down. “Go back to the left coast!” one yells.

  “Al Gore! Three-time loser! Al Gore! Three-time loser!” the small crowd bellows. “Disbar the Supreme Court!” chants Bill Engledow, thirty, from Warren Robins, Georgia, who has a megaphone.

  “I’m just a voter who’s outraged,” Engledow says to me when I ask him what’s up.

  The Gore supporters are less exuberant and fewer in number. Every time the small Gore huddle tries to get a chant going, it gets smashed by the megaphone and aggression of the fifty or so Bush supporters.

  “For all the loose talk about crisis or confrontation, let’s be clear about why the votes haven’t already been counted,” Minority Leader Gephardt says, standing with Daley at the Capitol.

  “The Bush campaign has done everything it can to stop a full and fair count,” Gephardt says. “They and their allies have filed lawsuit after lawsuit to stop the counting of votes. Two weeks ago, Republican Whip Tom DeLay dispatched staffers to Florida, not to observe the count but to disrupt it.” Other Bushies have been attacking “the integrity of the courts,” Gephardt decries, unlike Gore and Lieberman, who “have lost several cases during this process, and not once have they criticized the judicial branch.”

  Effuses Daley in a rare moment of optimism, “We are very close to knowing who actually won Florida and who, therefore, won the presidency.”

  Inside the Leon County library, deputy clerk Miriam Jugger approaches Judges Harley and Reynolds at table four. “We are one-third of the way through,” she says. “Please expect to be here until nine or ten.”

  At table three, deputy clerk Denise Bertelsen motions toward the TV camera. “I should turn my head so my family could see me,” she says.

  Judges are sharing mints, apparently mindful of the close quarters. When table two returns from lunch, Judge John Crusoe asks, “Anyone have onions?”

  The SCOTUS brief is signed by Olson, Carvin, Terwilliger, Richard, and Ginsberg. It requests an immediate halt to the recount until various questions are resolved, so as to prevent Bush and Cheney “from suffering irreparable injury as a direct result of the erroneous decision” made by the Florida Supreme Court.

  “The period between November 7 and today has, unfortunately, been characterized by chaotic and standardless manual recounts requested by Democratic presidential candidate Vice President Gore in four heavily Democratic counties and by an outburst of litigation flowing from that process,” they complain. “Because of the Florida Supreme Court’s judicial amendments to the legislative structure for choosing Florida’s electors, absent a decision by this Court, the election results from Florida will remain under a cloud of uncertainty.

  “The consequence could be a constitutional crisis.”

  There have been errors in the vote counting, the Bushies say, a bit hyper-bolically. “During the manual-recount process, ballots were poked, prodded, rumpled, creased, twisted, dropped, stained, tabbed, and otherwise mishandled. Not surprisingly, this rough treatment caused massive damage to the ballots.” The whole thing has been chaos, they say, and it’s Al Gore’s own fault. The “standards for evaluating ballots were changed repeatedly during the recounts….In Palm Beach County, a court ordered the canvassing board to consider ‘dimpled’ chads, even though the board’s pre-existing 1990 policy precluded treating mere indentations as valid votes….On November twentieth, the Florida Democratic Party asked the Florida Supreme Court to fashion even more expansive new standards…. Vice President Gore repeated that request to the Florida Supreme Court on November thirtieth.”

  They cite 3 U.S.C. 5 (changing the rules in the middle of the game). They cite due process. They cite Article II (that electors need to be chosen “in such Manner as the Legislature thereof may direct”). They cite the Voting Rights Act.

  And they cite equal protection. Indeed, though the SCOTUS has never shown a willingness to buy into the equal protection argument as it pertains to this case, the Bushies hit this one home hard. “By permitting further inconsistent and standardless recounts to be conducted during the contest proceeding, the court’s order guarantees disparate treatment for similarly situated ballots both in other counties and within the counties subject to the order. The equal protection violations are compounded by the fact that the court adopted a standard of ‘selective deference’ to the decisions of the county canvassing boards that… only benefits the Gore Respondents.

  “Florida Supreme Court’s decision imperils Governor Bush’s proper receipt of Florida’s twenty-five electoral votes. The Florida Supreme Court’s decision raises a reasonable possibility that the November 26 certification of Governor Bush as the winner of Florida’s electoral votes will be called into doubt—or purport to be withdrawn—at a time when the December 12 deadline for naming Florida’s electors could preclude Applicants’ ability to seek meaningful review by this Court.”

  And, as if the SCOTUS needs reminding, Olson, Carvin, et al. remind the Court that, “remarkably,” the Florida Supreme Court “did not respond to the questions posed by this Court’s December 4 opinion vacating the Florida Supreme Court’s decision in Harris.”

  In the Leon County library, Leahy is stunned. He doesn’t quite get what this hand recount of his ballots is all about.

  Because of Marc Lampkin’s annoying stall ta
ctics, not all of the undervotes were separated from the county’s ballots. They finished up 614 precincts, but there were still about 50 precincts they had left. Leahy tells the judges that there’s still some work to be done, that there are still precincts that needed undervotes to be segregated. He tells them about the process by which it can work, that it will take half a day at most—which can be done concurrently with their counting of the undervotes that were segregated.

  But the judges completely ignore him.

  The Gorebies are running a spreadsheet.

  Madison County finishes by 12:15; net gain of 2 Gore votes.

  Escambia County finishes around 1:30; net gain of 3 Gore votes. Sixteen minutes later comes news from Osceola—net gain of 4 Gore votes.

  Fourteen minutes after that, at 2 P.M., Liberty County. Two for Gore, 1 for Bush.

  At 2:18, they hear that Manatee County found 26 votes in their 111 Opti-scan undervotes, resulting in a net gain of 2 Gore votes.

  It’s nerve-racking. But they’re getting there.

  2:45. Highlands County. Punch cards. Three for Gore, 1 for Bush.

  Beck was up all night, working with Sean Gallagher on various objections he had to file in Lewis’s courtroom by 8 A.M. “The Florida Supreme Court put this court in a frankly impossible situation,” the brief states. “The court’s order also robs George W. Bush and Dick Cheney of even the rudiments of due process.”

  After Beck and Terrell—who wrote a brief on the spoliation of the Miami-Dade ballots—filed their papers at 7:55, the two hit the talk-show circuit, designated to talk about how the recounts are unfair. After entering Bushworld to much suspicion, Beck is now a full-fledged GOP superstar. The fact that he voted for McCain in the primaries—even after McCain had dropped out—is not often mentioned.

  “We’re going to have one county where judges look at the ballots,” Beck tells CNN. “We’re going to have other counties where other employees of other branches of the government are drafted into service. So, we’ve got inconsistent treatment right off the bat. Number two, no matter how well-meaning the judges may be, they’re not given any guidance. They’re not given any standards to evaluate the ballots.”

  Not all is lost, however. The GOP pols in the field report back to Mehlman and Enwright, and Beck hears that the percentage of undervotes being considered votes is very low, maybe 5 percent.

  “They’re applying real standards,” Beck thinks.

  There are other reports that Beck hears—counties practicing what he considers acts of civil disobedience. The Bay County canvassing board, he hears, faxes Lewis a letter stating that they might refuse to comply with his order, insisting that they did it right the first time. More than thirty of the sixty-four counties don’t send Lewis the letter he requested, explaining their plans.

  Out of gas, Beck heads back to the Radisson to pass out.

  In D.C., Daley gets word that the Miami-Dade undervote count isn’t going so hot. The standard the judges are using is pretty tough.

  No surprise. Daley always knew that if regular judges looked at the ballots—people who had never looked at a ballot in their life, as opposed to elections judges, who look at ballots, who have seen this shit—they’d be skeptical, they’d say, “What is this?”

  The judges are really moving through those things, Daley’s told. And they’re not counting many for Gore at all. This thing is much closer than some of the political people think. This thing is still going to come down to just a few votes, one way or the other.

  Klain’s on the phone with Gore, briefing him on how the recount’s going, when an assistant sticks her head in and tells him that Andy Pincus, a Gore attorney in D.C. working on some of the U.S. Supreme Court briefs, is on the phone.

  “I can’t talk to him,” Klain says, turning to Jeremy Bash. “Jer? Can you?” Bash picks up the phone.

  “Hey, Andy,” Jeremy says.

  “I need to talk to Ron,” Pincus says, sounding like he was just kicked in the stomach. “It’s an emergency.”

  “He’s on the phone with Gore,” Bash says. “He’s gonna have to call you back.”

  “Jeremy,” Pincus says. “The Supreme Court just granted a stay.”

  “Ron!” Bash shouts. “The Supreme Court just granted a stay! Andy’s on line six!”

  “Hold on, sir,” Klain says, putting Gore on hold.

  Daley was right, it does come down to just a few votes.

  Five, to be precise: Rehnquist, Scalia, Thomas, O’Connor, and Kennedy.

  They vote to grant the stay on the Florida Supreme Court ruling. The case is set for oral argument on Monday, December 11, 2000, at 11 A.M.

  And just in case Al Gore feels even the slightest bit confident, Scalia writes a totally unnecessary love note to Bush.“It suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.”

  Counting votes that the Bushies consider to be “of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he [Bush] claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

  Scalia’s note is written in reaction to Justice Stevens, who puts forward an atypical dissent. “To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the court throughout its history.” The SCOTUS has always deferred to the state supreme courts when it comes to that state’s own laws. “On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion,” Stevens writes, a reference to the fact that the Bushies kept their main U.S. constitutional questions—like McPherson—out of the Florida Supreme Court so that they could bring them up before the SCOTUS.“The majority has acted unwisely.”

  Moreover, Stevens says, any questions about the legitimacy of the next president will come precisely from the majority’s action. “Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,” Stevens writes.

  One of the myriad faxes Lewis receives is an order from the U.S. Supreme Court sent to him personally by someone calling himself “William Rehnquist,” telling him to stop the counting. It’s on official-looking stationery and letterhead, and Lewis would have bought it completely if it hadn’t named him personally, as opposed to the more traditional reference to the Leon County Circuit Court.

  This time, though, it’s different. He hears of the stay from CNN first. And though he doesn’t doubt the cable news network, he wants something official before he orders the recounts halted. And he gets it. This time it doesn’t mention him personally. This time it’s real.

  Lewis has a mixed reaction. A lot of people had been working hard to make the recounts work. He was heartened by the response of his Leon County judicial colleagues, most of whom willingly were giving up their weekend to make the Miami-Dade recount work.

  On the other hand, maybe the thing’s finally over.

  Boies and Zack are at Andrew’s, finishing up lunch. On one of the TVs, news flashes across the screen: 11th Circuit Denies Stay.

  “Of course they denied it,” Boies says.“How can you ever have ‘irreparable harm’ from counting legal votes?”

  “I guess you can order dessert,” Zack says.

  But within minutes, another TV, on another channel, has another headline. U.S. Supreme Court Grants Stay.

  “I guess we’d better go back,” Boies says.

  “Please stop the machines, Mark,” says Ion Sancho, Leon County’s supervisor of elections.

  Then: “We should start packing up the ballots. We’ve got to stop the recount. I don’t think it’s going to start again.”

  In Hillsborough County, Elections
Supervisor Pam Iorio hasn’t yet opened the first box of undervotes—there are 5,553 total—before she hears word that the SCOTUS has stepped in.

  “Just another day in Election 2000,” Iorio says with a sigh.

  The crowd of GOP observers starts chanting: “Bush! Bush! Bush! Bush! Bush!”

  In Pinellas County, the canvassing board is two hours and 224 ballots into reviewing its 4,226 undervotes. Gore’s up 2, Bush 1.

  Computer expert Noel Poyntz flew from Miami to Jacksonville, Duval County, Saturday morning to install software to separate the 4,967 undervotes from the 291,000 ballots. Poyntz had just finished, when the canvassing-board chairman, chief administrative judge Brent Shore, gets paged by his wife.

  He calls her back; she holds the phone up to CNN. Shore tells the rest what’s going on and leaves the room to hit the Internet to find out more.

  At around 2:45 P.M., word of the U.S. Supreme Court decision spreads inside and outside the Leon County Library like those glow-in-the-dark germs in the movie Outbreak.

  “SOOOOOOOOORRREE loser,” the Bush protesters chant. “SOOOOOOOOORRREE loser.”

  The Gore forces weakly cry back: “This is America! Every vote counts!”

  At 2:59, Leon County court administrator Terre Cass pokes her head out to tell us what’s up. “All I can tell you is that we are in recess right now until we can figure out what has happened,” she says. “The teams finished up the precincts they were currently working on.” The judges have yet to receive official word from the SCOTUS, she says.

  Inside, Reynolds is given the official word from Lewis. He tells everyone to stop counting. Maybe fifteen minutes later, Cass steps to the podium.

  Reporters scramble around her.

  “OK, are we ready?” she asks.

  We nod.

  “We’ve just received a call from Judge Terry Lewis,” Cass says. SCOTUS has ordered a stay on the Florida Supreme Court’s Friday decision.