by Jake Tapper
The Bush protesters erupt with boisterous cheers. “It’s time for Gore to go! It’s time for Gore to go!” they cry.
“This is good,” Tom Rush, a Leon County Republican official, says softly to a woman next to him, motioning at the excited, somewhat angry, Bush mass. “It’s my job to harness this and keep it going.”
A Republican observer is running around, telling reporters that Bush was up a net 42 votes in the library when Lewis called them and put an end to it all.
Judges start leaving the building, escorted by sheriff’s deputies. Reporters and cameramen chase them. One camera nearly falls, catching on a POLICE LINE DO NOT CROSS yellow tape that has separated Gore protesters from Bush protesters. Someone else pulls up the tape to make his way through, and it catches a young African-American man, John Campbell of Lakeland, Florida, under the neck, nearly strangling him for a second.
Deputy clerks spill out into the parking lot, holding shoe boxes. Inside are supplies, we’re told, not ballots—the ballots are being returned under armed guard to the Leon County circuit courthouse.
“We tried,” says a deputy clerk as she gets into her friend’s powder blue GMC Sonoma. “We had a good system going. I’m a little disappointed. We came to do a job, and we didn’t really get to do it.”
Outside the library, protesters and reporters and sheriff’s deputies mill about. What do we do now? Where do we go? What’s going to happen next?
County clerk David Lang comes out of the building.
“We’re all in a state of suspended animation, just like you are,” Lang says to a mass of reporters. “When the British surrendered at Old Yorktown, they marched to the tune of ‘The World Turned Upside Down.’ I’m going to go try to find a copy of that.”
At 3:11, Gore sends Lehane an e-mail on his portable Blackberry.
“Please make sure that no one trashes the Supreme Court,” it says.
Beck is sleeping when Bartlit calls him from his Colorado office.
“Did you hear what happened?”
“No,” Beck says, still asleep.
“The U.S. Supreme Court stayed the recount!”
Beck’s first reaction: he has to go back to court. He’s convinced that some counties are going to refuse to stop counting. At the Bush Building, his fears are confirmed. He runs over to the circuit courthouse, finds someone in the administrative office, and explains to the clerk that some counties are continuing, despite the SCOTUS order.
The clerk calls all four of them. Members of the Okaloosa County canvassing board report their plans: they’re going to continue the counting but seal the results. If you do that, you won’t only be held in contempt of the U.S. Supreme Court, but also Judge Lewis will hold you in contempt, they’re told.
Another county wants to continue sorting, but they promise not to count. Better not, says the clerk. Within an hour, all four counties have been persuaded to stop.
In Austin, Time reporter John Dickerson sits shotgun in Bush’s immense gray Chevy Suburban. Managing editor Walter Isaacson sits in the back with Bush aide Gordon Johndroe, and Isaacson’s wife, Kathy, sits in the way back, as Bush drives them around his 1,600-acre ranch in preparation for their “Person of the Year” issue.
Bush sure seems chill. As they tour the land, Bush jokes about a bull whom they stumble upon mid-mating.“Puttin’ on a show,” he jokes. In the kitchen at lunch, he chastises Spot.“What is it you tracked in here?” he asks him. Back outside, at a stream, Isaacson cups his hands to the water and asks, “Can you drink this?”
“Sure,” Bush says, as Isaacson lifts the water to his mouth.“Except for the cow shit.”
Dickerson is trying to figure out if Bush is really this serene, or if it’s an act. They’ve been here since 10 A.M.—five hours now—and still no sign of artifice. It seems legit. Especially when they enter an enclosed wood.
“It does just all fall away,” Bush says to the group. “I could give a damn about the Supreme Court. Well, of course I do care, but you forget.” 1
He doesn’t need to care. And Isaacson—who has an appointment with Gore for next week, too, just in case he ends up meriting the “Person of the Year” honor—need not fly into D.C.
A call from Don Evans will make that appointment eminently cancelable.
“That’s great news. Terrific,” Bush says to Evans on his cell phone. “That is good news,” he says. He goes to call Baker, but only after he’s driven Dickerson and the Isaacsons to their car.
“I have just spoken to Governor Bush,” Baker tells us in the state senate hearing room, “and of course we are pleased by the United States Supreme Court decision this afternoon to stay the mandate of the Florida Supreme Court and to grant our petition.”
Is it over?
“Of course not,” Baker says, rather unconvincingly. “They haven’t ruled on the merits. This is a stay.”
What’s it been like for Bush these past twenty-four or forty-eight hours?
“It has not been just these past twenty-four or forty-eight hours,” Baker says. “It’s been ever since we began this process, this odyssey, on November the eighth. It changes from day to day. It’s one day—one day you’re up, one day you’re down.”
As Ron Klain walks into the hearing room, he’s on the phone with DNC spokeswoman Jenny Backus, and she’s giving him a number: 58.
“Okay, thanks,” he says, hanging up the phone, as he and Boies step up to the microphones. Klain has heard about the Bushies’ spreading it around that the counts weren’t going so well for Gore, and he wants to nip that in the bud. They don’t want Sunday newspapers and Sunday talking-head shows regurgitating this notion that no matter what the Supreme Court rules, Gore’s a dead man regardless.
Klain announces that his team was “quite pleased with the progress being made at the counts under way here in a number of counties. Our latest information shows that thirteen counties had completely or partially completed their recounts, and in those counties, Vice President Gore and Senator Lieberman had gained a net of fifty-eight votes.”
What’s more, Klain says, “five of those counties were heavily Republican counties. So we believe that the progress made in the count thus far indicated that we were clearly on a path for Vice President Gore and Senator Lieberman to make up the difference and to pull ahead, had the count been fully completed.”
Boies is asked if the Gore legal team plans on using the 58 votes in its SCOTUS arguments on Monday.
“Well, I don’t think the fifty-eight votes has anything to do with what the Supreme Court decides, or at least directly,” Boies says. “I think the fifty-eight votes indicate that if this count continues to go forward, it looks like right now, although nobody can be absolutely certain, that Vice President Gore and Senator Lieberman would win the popular vote in Florida, just as they won the popular vote outside of Florida.”
What about the December 12 deadline? Arguments are set for Monday, December 11. Is there going to be enough time?
“I think the timing issue is probably the single most disappointing thing about what the Supreme Court has done,” Boies says. He, of course, agreed to the December 12 deadline way back during that first Florida Supreme Court argument.
Boies now says, “I think there’s no doubt that December eighteenth is the final deadline. We’ve all been trying to get it done by December twelfth. I think that in the last week, everybody has recognized that at least, under certain scenarios, it would not be done by December twelfth. For example, the legislature said that if it acted, it probably wasn’t going to act until December thirteenth, and that the December twelfth deadline was not any magical end date.”
Speculation, and common sense, designate that Kennedy and O’Connor are the justices to watch, the moderate conservatives whose shifts hand victories to one side or the other. On a single Wednesday last June, O’Connor leaned left—with Breyer, Ginsburg, Souter, and Stevens—in overturning a Nebraska law banning late-term abortions, and then went with Rehnquist, Kenned
y, Scalia, and Thomas on allowing the Boy Scouts to ban gays.
Boies is asked what arguments he hopes will take hold with either of the two swingers. He lays out a few arguments, saying, “I’m not sure which one’s the best, and I probably won’t be arguing it. And that person will have to decide what the best argument is.”
The Bushies are livid. First of all, they think that “58” number is utter bullshit. It may have been real a few hours ago, before the Miami-Dade recount at the Leon County Library hit the Latino precincts, but when the SCOTUS stopped the count, the Bushies’ numbers had their man in the lead.
Moreover, they had told their observers to keep the numbers quiet; they had argued before Lewis that the numbers needed to stay secret until the very end, and Lewis’s ruling indeed stated that “no partial recounts shall be reported, either formally or informally.”
Some of the younger lawyers—ones Beck would later describe as “hot-heads”—want to bring Klain and Boies before Lewis on contempt-of-court charges. Older, more seasoned lawyers agree to an emergency motion that will shut Boies and Klain up, though nothing as harsh as a formal contempt motion. Besides, they have an idea of Lewis’s MO by now, and the even-keeled author isn’t going to hold anyone in contempt for one ambiguous line he wrote in his motion late at night. It wasn’t even part of the oral complaint Lewis issued. Let’s not get crazy here, they say.
So at 5:03 P.M., Jason Unger files an emergency motion, complaining that Boies and Klain “are in violation of this Court’s Order… in that they are reporting, formally or informally, partial counts.” They “must cease and desist immediately,” says the complaint.
Klain’s still pissed off—and a little anxious. He understood the gag order to have applied to canvassing boards, not parties in the legal dispute. It seems nonsensical. The counts were in public, AP was reporting the results every hour. And he considers the motion to be close enough to a contempt charge to be insulting.
Truth is, Lewis did mean it to apply to everyone. He was trying to avoid a circus-like atmosphere, with press conferences every three minutes. He’s not going to take any action against Klain; the order was pretty vague, whatever. Still, as a matter of policy and protocol, he reminds the Gore team that it would be better for them not to report the partial totals anymore. Not that it matters.
Democrats will forever wonder what would have happened had the SCOTUS not stepped in and stopped the count. There are two reasons why they shouldn’t. One: the Florida Supreme Court’s order to count the undervotes, without counting the overvotes, was wholly without logic. If the intent of the voter can be discerned in the approximately 65,000 undervotes, then there is no reason why the 110,000 overvotes shouldn’t have been given the same opportunity. The Florida Supreme Court order, therefore, was based on a faulty comprehension of what any real attempt to truly get to the bottom of the matter would entail. As the experiences in Gadsden, Jackson, and Volusia Counties proved, there were clearly discernible votes in the overvotes.
Second, the “58” number that Jenny Backus told Klain to use at the press conference shortly after 4 P.M. was complete bullshit.According to the spreadsheets put together by the Democrats’ numbers guy, Achim Bergmann, at no time during the day was Gore up 58 votes. Before Klain and Boies went out to speak to the press, the numbers Bergmann had in his computer had Gore up 31 votes (+3 in Escambia, +2 in Highlands, +1 in Liberty, +2 in Madison, +2 in Manatee, +10 in Okechobee, +18 in Orange, +4 in Osceola, –1 in Collier, –3 in Desoto, –3 in Pasco, –1 in Pinellas, and –3 in Suwanee). This may be a net gain, but it is not 58 votes, leading one to the conclusion that the “58 votes”number was invented out of whole cloth.
Moreover, the numbers that came in to Bergmann subsequent to the Boies-Klain press conference showed Gore losing votes, so that Bush was actually ahead by 15. (Gore registered –44 in Miami-Dade, –1 in Flagler, –5 in Okaloosa, –8 in Santa Rosa, +7 in Franklin, +2 in St. Lucie, +1 in Taylor, +2 in Wakulta.) As throughout the whole fracas, those Gore backers looking for reassurance in their hopes for the Gore strategy would be advised to steer clear of the hard numbers and concrete facts.
Boies wants to argue the case before the SCOTUS. He doesn’t want Tribe to do it, he wants to do it. And he’s not alone.
It’s a real debate, because Tribe is one of the most esteemed Supreme Court attorneys alive, while Boies has argued before the SCOTUS only once before. He lost the decision, 9 to 0. And he was arguing against Tribe.
Klain and Daley think that Gore should stick with Tribe. This is his terrain. But Boies has his backers, too: Christopher and Gore’s brother-in-law Frank Hunger. And, ultimately, Al Gore. Gore makes this decision based on the fact that the case will probably revolve a great deal around Florida law, which Boies now knows cold. Also, Gore feels that Boies deserves it—he poured his heart and soul into the case, has been on the ground in Tallahassee since that second week. Rightfully, personally, emotionally this is Boies’s case, Gore feels. Not that it’s not a close call. As Klain puts it, it’s like choosing between Magic Johnson and Larry Bird. Christopher sits Tribe down and tells him that he’ll be on the bench Monday.
Unless they’re permanent Supreme Court reporters, journalists are assigned fairly crappy seats at high-profile oral arguments. Not that we won’t take them; hey, we’re happy to be there. But we’re thrown together in rows of cheap chairs wedged behind immense gray columns. If you’re lucky, you can see two justices at a time. It’s my luck that I see the two whom everyone’s watching: Kennedy and O’Connor.
While all the other legal cases in the Florida fracas have had names like Volusia County canvassing board v. Katherine Harris et al. and George W. Bush and Richard Cheney v. Palm Beach County canvassing board et al., today’s showdown finally has the right name: Bush v. Gore. Throughout the ninety-minute hearing—thirty-five minutes for Olson, ten minutes for Klock, forty-five minutes for Boies—O’Connor and Kennedy hold their heads in their hands. Perhaps they’re just trying really hard to concentrate. But it looks as though the burdens of their pending decisions are literally weighing them down.
They offer conflicting clues. Democrats take heart in the fact that Olson’s only 125 words into his opening argument when Kennedy grabs the Achilles’ heel of his case. “Where’s the federal issue here?” is the first question of the day.
Kennedy and O’Connor both seem skeptical of—or at least reluctant to embrace—Olson’s proposition that this is just obviously a federal issue. But both also seem concerned that the county-by-county judgments of ballot standards might violate the equal protection clause of the Constitution.
“Can you begin by telling us our federal jurisdiction?” Kennedy asks.
O’Connor soon chirps up. “I have the same problem Justice Kennedy does, apparently,” she tells Olson. Article II of the Constitution, which sets out the rules for assigning electors, “certainly creates a presumption that the scheme the legislature has set out will be followed, even by judicial review in election matters. I would have thought that that would be sufficient,” O’Connor says, rather than to make a federal case out of it.
Olson replies that “there is a breakout with respect to various aspects of Florida statute and Florida election law. There’s a specific grant of authority to the circuit courts. There’s no reference to an appellate jurisdiction.”
“It may not be the most powerful argument we bring to the Supreme Court,” Olson allows.
“I think that’s right,” Kennedy says, to laughter from the crowd.
At the previous SCOTUS hearing, it seemed a majority of the justices were concerned the Florida court had rewritten the law, while at the same time a majority also seemed skeptical that this was a “federal issue” that warranted a federal court’s meddling. Its subsequent unanimous ruling, which asked the Florida court to better justify its action based on Florida law, seemed a reasonable middle ground, one that kept them—for the time being—from entering the political fray. There are no such options here.
The ticktocks from Tallahassee are deafening, and the very fact that the Court put a stop to the manual recount of Florida’s approximately 65,000 “undervotes” seems to indicate the SCOTUS’s serious disapproval of its Sunshine State counterparts.
Olson refers to Friday’s ruling by the Florida court as “a major, major revision” of Florida law.
Stevens takes issue with that, asking why Olson’s arguments“rely very heavily on the dissenting opinion in the Florida Supreme Court” by Florida chief justice Wells. Who cares what Wells wrote in his one-man dissent? Stevens asks.“Which opinion do we normally look to for issues of state law?” he asks.
More important, Olson is asked by Breyer, if the Court were to allow the recounts to continue, “What in your opinion would be a fair standard, on the assumption that it starts up missing the twelfth deadline but before the eighteenth?”
Olson doesn’t really have an answer for this, except to say that he would hope that the standard would be uniform. “At minimum, Justice Breyer, the penetration of the ballot card would be required,” he says. When asked, he seems perfectly willing to let Harris set a standard. This apparent hypocrisy—Olson giving a rah-rah to the idea of Harris setting a post-election standard while objecting to the Florida court’s post-election rulings, saying the court changed the rules after the game—gets Ginsburg’s back up.
“You have said the intent of the voter simply won’t do. It’s too vague, it’s too subjective,” she says. “But at least those words, ‘intent of the voter,’ come from the legislature. Wouldn’t anything added to that be—wouldn’t you be objecting much more fiercely than you are now if something were added to the words that the all-powerful legislature put in the statute?”
Florida statute, after all, allows for “the circuit judge” to “fashion any order he or she deems necessary to prevent or correct any wrong, and to provide any relief appropriate under the circumstances,” she says.“I couldn’t imagine a greater conferral of authority by the legislature to the circuit judge.”