Down & Dirty

by Jake Tapper

  Olson is also taken to task by the left wing of the Court after he asserts that “undervotes” are actually not votes, since the machine didn’t read them as such.

  “As to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn’t pick up, the majority of the Florida Supreme Court says you’re wrong,” Souter says. “They interpreted the statute otherwise. Are you saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled in effect, to the presumption of reasonable interpretation under Article II?”

  “Yes, that is our contention,” Olson replies.

  “Very well, Mr. Olson,” Rehnquist says.

  Klock approaches the mike to give us a few moments of levity. The somewhat-unpolished lawyer twice refers to justices by the wrong names. He calls Stevens “Justice Brennan,” a reference to the legendary jurist who died in 1997. He’d done this in his practice moot courts, too. Klock, an active University of Miami Law School alum, used to see Brennan periodically when the justice would come down to Miami during the winters. Brennan would set up dinners, meetings, and Klock got to know him a bit. And for some reason, Stevens reminds him of Brennan.

  Then, in the middle of answering a question by Souter—but thinking about something Breyer had just said—Klock commits a second faux pas, calling Souter “Justice Breyer.” It gets to the point that when Scalia comes forward with a question for Klock, he feels the need to introduce himself. “Mr. Klock? I’m Scalia,” he says mischievously, to much laughter from the VIP crowd—which includes Dole and Jackson; Republican senators John Warner of Virginia, Arlen Specter of Pennsylvania, Orrin Hatch of Utah, and Judd Gregg of New Hampshire; Democratic senators John Kerry of Massachusetts, Patrick Leahy of Vermont, Harry Reid of Nevada, and Chris Dodd of Connecticut; Daley; and Evans, among others.

  After Klock’s entertaining name-fumbling, Boies steps up. In only his second Supreme Court outing, Boies gets only twenty-six words in before Kennedy interrupts and asks about the jurisdictional issue. He then rips Boies for defending what much of the Court clearly sees as the Florida court’s post-election formulation of law.

  “I’m not sure why if the legislature does it, it’s a new law, and when the Supreme Court does it, it isn’t,” Kennedy says pointedly.

  Boies insists that that’s not the case, and reminds the Court that “the standard” as to whether or not Florida Supreme Court justices overstepped their bounds should be “the standard this Court has generally applied in giving deference to state supreme court decisions.” Potential swing vote O’Connor seems doubtful of this. “But is it, in light of Article II?” she asks. “I’m not so sure.”

  “You are responding as though there were no special burden to show some deference to legislative choices in this one context,” O’Connor, former GOP majority leader of the Arizona state senate, says to Boies. “Not when courts review laws generally, for general elections, but in the context of selection of presidential electors, isn’t there a big red flag up there, ‘Watch Out’?” Whether or not the Florida court acted properly is “a concern that we have,” O’Connor says.

  Not that the state court has even bothered to respond to the Supreme Court’s previous concerns, which caused it to vacate the Florida court’s extension. “I did not find, really, a response by the Florida Supreme Court to this Court’s remand in the case a week ago,” O’Connor says, sounding rather schoolmarmy. “It just seemed to kind of bypass it and assume that all those changes in deadlines were just fine, and they’d go ahead and adhere to them. And I found that troublesome.”

  The Bush team slams Florida’s election law for essentially being ruled by chaos. But, one could counter, was it Gore’s fault that Jeb Bush, Harris, and the GOP-controlled state legislature had allowed that law to remain without clarification? Fairness, of course, is seldom at issue when it comes to debating law.

  “That’s very general,” Kennedy says of the Florida standard of ascertaining “intent of the voter.”“Even a dog knows the difference in being stumbled over and being kicked,” he says. “You would say that, from the standpoint of the equal protection clause, each—could each county give their own interpretation to what ‘intent’ means, so long as they are in good faith and with some reasonable basis finding intent? Could that vary from county to county?”

  “I think it can vary from individual to individual,” Boies acknowledges. Souter seems even more concerned about Florida’s shifting county-by-county standards. “There is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad,” he says. It “varies, we’re told, from county to county. Why shouldn’t there be one objective rule for all counties? And if there isn’t, why isn’t it an equal protection violation?”

  Assuredly making Gorebies everywhere shake in their Doc Martens, Souter says that this issue is “bothering Justice Kennedy, Justice Breyer, me, and others.”

  After all, as Scalia offers, “It was clear that Broward and Palm Beach Counties had applied different criteria to dimpled ballots. One of them was counting all dimpled ballots; the other one plainly was not….That’s just not rational.”

  Providing a speck in an electron in an atom that’s part of a glimmer of hope, Souter says that if the Court responds to this issue, then “we would have a responsibility to tell the Florida courts what to do about it.” He asks Boies, “What would you tell them to do about it?”

  For once, the brainiac motormouth is speechless.

  “Well, I think that’s a very hard question,” he finally says.

  “You’d tell them to count every vote,” Souter jokes.

  “I think I would say that if you’re looking for a standard—and I say that not because of the particular aspects of this election—the Texas standard, if you wanted to specify something that was specific, it gives you a pretty good standard,” Boies says.

  But Kennedy soon rains on this, returning to the argument that the certification deadline was extended by the Florida court only by creating “a new law, a new scheme, a new system for recounting at this late date.”

  “I’m very troubled by that,” potential swing-vote Kennedy says.

  Boies tries to change the subject. “I think at this stage you have to leave [that] aside—because at the contest stage, what you’re doing is you’re contesting specific ballots, whether or not they were included in the certification; it’s absolutely clear under Florida law that that’s what the contest is about. So at the contest stage, the only question is, can you complete the contest of the contested ballots in the time available?

  “Everything that’s in the record is that we could have, and indeed we still may be able to, if that count can go forward,” Boies says.

  But Rehnquist seems skeptical.“Including appeals to the Supreme Court of Florida and the other petition to this court? If this all goes forward, there’s going to be an appeal to the Supreme Court of Florida and likely another petition to this court. Surely that couldn’t have been done by December twelfth….Or could it?”

  Boies says that it can be done, that briefs and arguments and a decision have been done so far in this fiasco “within twenty-four hours,” and, with a handful of exceptions, most of the counties can finish up within a day or so. “As I understand it, some of them have taken advantage of the time—”

  Rehnquist starts to ask a question. But Boies, the smartest kid in the class, isn’t done speaking.

  “Wouldn’t the—” Rehnquist says.

  “— to get the procedures ready to count—” Boies continues.

  But there’s no question who wins the argument over whose turn it is to speak.

  “Just a minute, Mr. Boies,” the chief justice intones authoritatively, and Boies shuts his mouth.

  Souter tries again to get Boies to admit that there’s something troubling about every county having its own ballot-reading standard. Boies tries a new argument—that since Floridians vote differentl
y county by county, optical ballots here, punch cards there, what he’s asking for isn’t such a big deal.

  “There are five times as many undervotes in punch card–ballot counties than in optical-ballot counties,” he says, so “some difference in how votes are being treated county by county” already exists. “That difference is much greater than the difference in how many votes are recovered in Palm Beach, or Broward, or Volusia, or Miami-Dade. So that the differences of interpretation of the general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have.”

  Soon enough, time’s up.“The case is submitted,” Rehnquist says. Leaving the courtroom, Sen. Tim Hutchinson, R-Ark., yawns. In the auditorium, senators Dodd, Specter, and Tom Harkin, D-Iowa, huddle, trying to figure out what’s going to happen. But even those esteemed senators are just as clueless as the rest of us.

  Tribe is troubled. And confused. There was far too much discussion about the equal protection argument, he thinks. The justices had never before shown any inclination to buy into that argument. In fact, twice before, the SCOTUS rebuffed the Bush team’s efforts to get the equal protection argument before them. What changed? In Tribe’s mind, nothing. Nothing in the law or in the record, at any rate. But now, a day before the December 12 “safe harbor” deadline, suddenly the Supreme Court is intrigued by equal protection?!

  Tribe is also a bit bothered by the Florida Supreme Court, and how it didn’t respond to their Supreme superiors’ questions. There were some pretty obvious questions that the Florida court hadn’t yet answered satisfactorily: Where did the November 26 date come from? for instance. Or, how much did they lean on the state constitution, as opposed to state law, when they made their first ruling?

  Then there was Boies. Tribe, of course, wanted to argue before the U.S. Supreme Court and disagreed with the decision to go with Boies, who had been there only once before, in a case where Tribe had handed him his hat on a 9 to 0 ruling. He understands the decision, thinks the world of Boies, but also knows that arguing successfully before the U.S. Supreme Court takes more than an agile mind and a familiarity with Florida law. It’s a very specialized tribunal, one in which experience and familiarity help.

  Tribe is very fearful of the equal protection argument, though he thinks it completely ridiculous. He wishes Boies had argued more forcefully against it, emphasizing more how the methods of voting are vastly unequal county by county, how, for whatever reason, voters in Miami-Dade and Palm Beach are less likely to have their votes count than those in Sarasota or Sanibel. He wishes Boies had mentioned that dimples are randomly distributed, and not just a mark that tends to show up more on Democratic ballots.

  Boies himself seems to acknowledge a smidgen of this—if only briefly—after the argument. “There were questions that I wasn’t prepared entirely for,” he allows in a press conference.

  On Monday, December 11, the five justices who stayed the recount seem ready to rule for Bush. The Florida Supreme Court created a new law, based on God knows what, and that’s a clear violation of both 3 U.S.C. 5— the “changing the rules in the middle of the game” deal—as well as Article II, that electors need to be chosen “in such Manner as the Legislature thereof may direct.” The justices order out for Chinese food for their clerks, so they can hand down a decision that night. But then the Florida Supreme Court finally turns in its homework assignment from the week before, and in so doing throws a wrench into the works.

  When Florida Supreme Court spokesman Craig Waters walks outside to the steps of the court in Tallahassee, not one— not one!—reporter is there to hear what he has to say. But O’Connor and Kennedy sure hear. The Florida court explains the method by which it arrived at its first decision, how it wasn’t rooted in the state constitution but rather state law, as written by the state legislature. 2

  Suddenly O’Connor and Kennedy are no longer with Rehnquist, Scalia, and Thomas on 3 U.S.C. 5 or Article II. Nothing’s going to be decided tonight.

  It’s Tuesday, December 12. Gore believes that the SCOTUS is either going to rule for him or is going to decide not really to involve itself. Daley thinks he’s living in a dreamland—“Fuhget it!” he says to Gore.“Five Republican judges. We’re going right in the tank”—but Gore is confident that they’ll be counting the ballots again, soon.

  He’s not alone. Both the Bushies and the Gorebies have kept their observers scattered throughout the state of Florida, in preparation.

  From: georgewbush.com

  Sent: Tuesday, December 12, 2000, 10:16 AM

  To: Jack Oliver

  Subject: Surrogates for recounts

  Talked to Joe and Mindy and Mehlman this morning. This is what we want to do for press purposes. Mehlman is going to talk to Joe about what they need for observation of counting purposes—that will have to be a much bigger operation than anything we can handle out of our mini–press office. The following needs to be ready if the Court calls for a recount. If a larger surrogate operation is put into place, we can fold these folks into that program as well.

  We need to be prepared to cover the following major media markets in FL:

  Miami

  Palm Beach

  Tampa/St. Pete

  Orlando

  Jacksonville

  Tallahassee

  Pensacola

  Because Congress is in session, Governors and non federal surrogates should be the easiest to get.

  Suggestions: in NO order of preference—All are retired or federal office-holders

  Gov. Racicot

  Gov. Pataki

  Gov. Thompson

  Gov. Engler

  Gov. Whitman

  Gov. Gilmore

  Gov. Keating

  Gov. Ridge

  Sen. Alan Simpson

  Ken Blackwell

  Gov. Taft

  Gov. Cellucci

  Sen. Ashcroft

  Howard Baker

  Lynn Martin

  Bob Dole

  Elizabeth Dole

  Lamar Smith

  Susan Molinari

  Gore calls speechwriter Eli Attie. He’s working on an op-ed for the New York Times about why it’s important that the fight be carried on, and he wants some help.

  “How soon can you get here?” he asks him. Attie says he can be there in five minutes, but when he goes to catch a cab, he realizes he’s out of money. He goes to a money machine, but it’s broken. So he walks over. Since he’s now late, he decides to walk in the front gate instead of the back.

  Big mistake. Reporters have been calling Attie, a dozen a day, to see if he’s working on a concession speech. Attie hasn’t been, really, though every now and then he sketches out an idea, unbeknownst to Gore. Now that he’s here, walking through the front gate, however, reporters are convinced that he’s here to work on the concession speech. Attie runs in, fending off ABC’s John Yang, among others. He hasn’t even arrived at Gore’s house before Gore senior aide Monica Dixon calls him on his cell. “What are you doing at Gore’s house?!” she asks him. “I just got calls from five reporters asking me why you’re there!”

  When Attie walks in, Gore greets him with a shake of his head. “You should’ve used the back gate,” Gore says.

  Meanwhile, everyone in the world is wondering what the justices are up to. Speculation about political biases fills the air. Does it matter that Scalia’s son works for Olson’s law firm? Or that Thomas’s wife is collecting résumés for the new Bush administration? Or that Thomas himself owes his job to Bush’s pop? Or that O’Connor and Rehnquist clearly want to retire, and clearly want to do so when a Republican is in the White House? Or that Ron Klain himself led the team that selected Ginsburg? Or that she and Breyer were appointed by the Clinton-Gore administration? Maybe; who knows? It’s naive to pretend that the justices aren’t as human as the rest of us, that their politics don’t play any role whatsoever in their decisions, just as the Florida Supreme Court justices’ biases surely reared their heads on one
or more occasions.

  Rehnquist, Scalia, and Thomas are fired up against the Florida Supreme Court. They want to vacate this decision, too. They feel that the Florida Supreme Court stepped on the legislature’s job. O’Connor and Kennedy no longer see it that way. But they, like Souter and Breyer, do have equal protection concerns about the standardless, county-by-county way the ballots are being analyzed. Of course, this potential problem was pointed out in the Bush legal team’s first argument, not to mention in its brief before Middlebrooks, so they’re coming to terms with this issue a little late.

  Ginsburg and Stevens don’t think that the SCOTUS should have ever even taken this case to begin with. The Court almost never steps in to tell a state supreme court how to interpret their own law.

  Souter and Breyer don’t want the Court to issue a ruling that can be seen as divisive, political. They suggest to Kennedy and O’Connor that they all try to fashion a solution to the equal protection problem, establish a standard, send the thing back to Florida, and have them do it right. But Kennedy and O’Connor aren’t biting. They don’t think that there’s really any way to come up with standards. They don’t trust the Florida Supreme Court to supervise a recount that will pass muster. What’s more, time runs out at midnight tonight, the date that the Florida Supreme Court set—with Boies’s consent—as a deadline for any count to have been completed.

  Soon Breyer and Souter leave the Supreme Court altogether. TV news networks show them buzzing out of the underground SCOTUS parking lot.

  Stevens thinks the whole equal protection argument is nonsense. The ballots of voters in counties that use punch-card systems are more likely to be disqualified than those in counties using Opti-scan systems, he says.

  Nonetheless, Rehnquist, Thomas, and Scalia—despite never having shown much interest in the issue—join with Kennedy and O’Connor on the equal protection argument. They will reverse the Florida Supreme Court’s decision and send it on back to Tallahassee. They—and their clerks—begin writing. Rehnquist, Thomas, and Scalia then write another opinion, overturning the Florida court on 3 U.S.C. 5 grounds.