by Jake Tapper
What the majority produces on equal protection will not be known as one of the better written, or more carefully reasoned, arguments to come out of the Supreme Court. The precedents they use to back up their equal protection argument are questionable at best. Sure, the argument can be made that county-by-county standards are unfair. But what of the clear votes—174 solidly identified in Palm Beach, who knows how many else unexamined—that have yet to be counted, especially those in counties where there is a higher rate of ballot spoilage due to punch-card ballots? Why is there any less of an equal protection argument when one compares the overvotes of Lake County with the previously worthless overvotes of Volusia County, since discovered in the hand recount and included in the final vote tally? What about the Jackson County overvotes fixed on Election Night? How come there’s no equal protection problem comparing those with the 110,000 or so overvotes remaining in Florida? Thus, given a choice between two potential equal protection violations, why not try to chart a course to find a solution? Or, if one supposes that there isn’t enough time to chart a solution, why not defer to the plan the state supreme court already has in place? These questions will never be answered satisfactorily.
Stevens and Ginsburg are furious. Stevens writes an angry—uncharacteristically furious—dissent. The federal questions in this case “are not substantial,” he writes. “The Florida Supreme Court’s exercise of appellate jurisdiction was wholly consistent with, and indeed contemplated by, the grant of authority in Article II.” The canvassing boards’ “intent of the voter” interpretations are no “less sufficient,” nor did they “lead to results any less uniform than, for example, the ‘beyond a reasonable doubt’ standard employed every day by ordinary citizens in courtrooms across this country.”
Moreover, Stevens writes, the majority’s thought process doesn’t even make sense. This recount isn’t being conducted correctly, so we’re just going to put an end to it?! “Under their own reasoning, the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature’s uniform general standard to be established,” Stevens writes. “In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law— but were for some reason rejected by ballot-counting machines.”
And then Stevens writes the paragraph that he will be known—both beloved and derided—for in perpetuity:
What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
At least Stevens signs his blistering letter “I respectfully dissent.” Ginsburg’s doesn’t even come with the “respectfully” (though, to be fair, this isn’t unprecedented for her). She points out that the SCOTUS has directed a state supreme court on how to interpret its state’s own laws only three times that she can think of—in 1813, 1958, and 1964—the latter two times being when southern states resisted civil rights laws.
Just last year, she says, a prisoner in Pennsylvania claimed that the state had been mistaken in its interpretation of state law, and we sent it back to the Pennsylvania Supreme Court for help. “The Chief Justice’s willingness to reverse the Florida Supreme Court’s interpretation of Florida law in this case is at least in tension with our reluctance in [that case] even to interpret Pennsylvania law before seeking instruction from the Pennsylvania Supreme Court.” We’re always telling federal courts to exercise a “cautious approach” to matters of state law. Why aren’t we being so cautious?
What’s more, Ginsburg continues, how can the majority argue that tonight’s deadline is the problem, when it’s the Court itself that stayed the recount on December 9? There are at least three other dates that the Court could assume to be the deadline: December 18, when the electors are set to meet, December 27, when Congress is to request certified returns from the secretary of state if there still aren’t any electors for that state; even January 6, when Congress is to determine the validity of the electoral votes.
Stevens, Ginsburg, Breyer, and Souter, however, are but four on a bench of nine. And without a fifth, they’re pretty much guaranteed that any future colleagues, appointed by now-all-but-finally-declared-President-elect Bush, will keep them in the minority for at least another four years.
Legal correspondents are on TV even before they’ve had a moment to read a page of the majority’s complex ruling, penned by Kennedy. Live, skimming pages, they stumble on telling passages.
“The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate,” reads one passage. “The problem inheres in the absence of specific standards to ensure its equal application.”
In Washington, one of Tribe’s protégés, Tom Goldstein, is faxing the decision to Tallahassee, where Bash runs each page, one by one, from the fax machine to Ron Klain, who has two phones going—Boies on one, Gore on the other. Klain reads the pages aloud. They’re trying to figure out what this muddled mess means.
“This is a crazy opinion,” Klain says. “There must be something missing.” He tells Bash to make sure all the pages are there.
There is no standard, the majority writes. And “[t]he want of those rules here has led to unequal evaluation of ballots in various respects….As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.”
In the Bush Building, the Bush lieutenants—Ginsberg, Terwilliger, Van Tine—are all in General Baker’s office. In an effort to psychically force the Supremes to issue a ruling, earlier in the day, Don Evans and Ginsberg had even taken a walk to get their shoes shined, hoping that by being out of the office and away from the TVs, the Court would have no choice but to rule at that very moment. It didn’t work, but here it is. They’re trying to figure it out. The decision’s complicated, and each channel they turn to has a different take on what it all means. Evans is on the cell phone with Bush. “Find Olson,” Bush tells him. “Find out if we won.”
They get him. Olson says yes, they won,
“Congratulations, Mr. President-elect,” Baker says to Bush.
The majority opinion goes into the record as established at the Sauls trial. King, Lehr, and Leahy all using different standards. Palm Beach County changing its standards twice—the 1990 standard, then the Sunshine Rule, then the 1990 standard again—during the 1 percent recount on Saturday, November 11. “Then the board abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal.” Miami-Dade’s undervotes were counted differently midstream. Broward’s standards differed from Palm Beach’s, the former using “a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties.” Recounts in Broward, Miami-Dade, and Palm Beach were not just of undervotes, but of all the ballots—but the Florida Supreme Court ordered a statewide recount of just all the undervotes. And what
of the 110,000 overvotes?
“This is not a process with sufficient guarantees of equal treatment.”
The SCOTUS majority make the motions about how, in a perfect world, they could correct this problem instead of just giving the presidency to Bush. In order to do it and not violate equal protection or due process, standards would have to be established statewide—complete with arguments, procedures for implementation, judicial review.
“That sounds like a devastating paragraph for Vice President Al Gore,” NBC anchor Tom Brokaw suggests to correspondent Dan Abrams. “They’re saying time has run out. We can’t come up with a standard, nor could we review it in time to resolve all of this. Would that be a correct reading, Dan?”
“Tom, I can’t answer that question quite yet,” Abrams says.
The majority opinion goes on, outlining what they’d have to do to get a legit hand recount going. The voting machines would have to develop programs to screen out the undervotes. And the overvotes. Harris would have to evaluate the accuracy of the software. And it is here, in this graph, that the answer seems to lie. Because Florida statute “requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us.”
Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.
Klain pauses after he reads this.“Sir,” he says to Gore,“ I think this means you’re hosed.”
He turns to the rest of the lawyers in the room. “I need everyone to leave the office. Now.”
Brokaw interviews DNC chair Ed Rendell. “Do you think that it’s time for Vice President Al Gore to concede, Mr. Rendell?”
“Oh, I think he will concede, Tom,” Rendell says.
Inside the DNC, Democrats are booing their chairman.
Inside NavObs, Gore is angry and incredulous. How could Rendell, the DNC chairman, have just said that?! Relations between the Gore campaign and the former Philly mayor have always been tense—the feeling’s been that Rendell’s too much of a loose cannon, not loyal; he wasn’t much help during the primaries. As if Gore needed more reason to dislike him, here he is calling for Gore to concede on national television!
Brokaw tries to get Tribe to say the same thing, but twice he demurs until he’s read the opinion. Finally he gets his hands on a copy, and he joins Rendell.
“I’m sure that Vice President Gore has the kind of reverence for the Supreme Court as an institution that he will not really undertake to be less than complete and gracious in his acceptance of this result,” Tribe says.
Not that Tribe’s happy about the decision. “As I teach it to my students over the years, I’m going to be rather critical of what the Court did, both in terms of some of the legal reasoning and in terms of the institutional performance, having so precipitously stopped the recount dead in its tracks, now to say in effect, ‘We’re shocked, we’re shocked that it can’t be completed by midnight on December twelfth,’” Tribe says to Brokaw. “It does come across as not entirely convincing. And to be divided seven to two is somewhat misleading, because it’s five-four on some of the critical issues. To be divided closely on the one instance in American history where the Supreme Court chooses the president rather than the other way around is not likely to sit well over time either with the American people or with historians. But I think the Court’s place in our lives is such that we should all rally around, even if we disagree with the result.”
Klain yells at Bash, “Tell Larry Tribe not to say Gore should concede!” Bash calls Tribe, delivers Klain’s message.
“CNN still has up on the screen ‘Tribe says Gore should concede’!” Klain yells. Bash calls the CNN assignment desk, delivers Klain’s message.
Klain calls in Douglas Hattaway and Jenny Backus. Take a deep breath, he tells them. Relax. We’re not sure what’s going to happen yet.
President Clinton is sleeping at the Belfast Hilton Ireland when all this comes down. His aides decide not to wake him. This has been such a nice trip for the president. The negotiated peace in Ireland is one of his greatest foreign-policy accomplishments. He’d spend the earlier part of the day in the Republic of Ireland–Northern Ireland border town of Dundalk, where sixty thousand greeted him so enthusiastically, so effusively, in a way Americans just haven’t since the whole Lewinsky thing.
“Why wake him up in the middle of the night just to tell him bad news?” asks White House deputy chief of staff Steve Richetti.
The next morning, at 8:15 or so, a bunch of senior White House staffers are meeting in the lounge area of the senior staff room, running through the day. There’s Richetti, and national security adviser Sandy Berger, White House counsel Bruce Lindsey, and press secretary Jake Siewert. They’re preparing for the day, preparing to debrief the president. He’ll have a meeting later with individuals who, four years ago, wouldn’t have even sat in the same room with one another—namely Sinn Fein’s Gerry Adams and Ulster Unionist leader David Trimble.
Doug Band, the president’s aide, calls Richetti. “The president needs to see you right away,” he says. Clinton just heard about the Supreme Court’s decision.
Oh boy.
Richetti, Berger, Lindsey, and Siewert make their way up to Clinton’s suite. There are already three or four copies of the decision there by the time they arrive. Clinton’s leafing through one of them. He’s in a full state of outrage.
“It’s an incredibly political decision,” the president fumes. He points out that the majority decision was issued per curiam, issued on behalf of the Court instead of signed by any justices in particular—kind of an odd thing to do, being that there were four such strong dissents. “No one wanted to sign the thing!” Clinton says.
He starts tearing through the Stevens dissent, reading parts aloud.“That’s right!” he says after he finishes a sentence he agrees with.“That’s right.”
“Um, you’re going to have to take questions on this later today,” Richetti says.
“I don’t think you should say any of that in public,” Berger cautions, stating the obvious. But Clinton takes the bait.
“I am not going to be silent!” the president responds, fuming. “I will not validate this opinion in any way, shape, or form! I don’t wanna be sitting around ten years from now, saying I signed off on the most political decision the Supreme Court has ever made!” He starts tearing through a list of other notorious Supreme Court decisions he feels this one will earn a place next to— Dred Scott, which in 1857 ruled slaves property not citizens, Plessy v. Ferguson, which in 1896 codified legally enforceable segregation.
“I am not going to be on the wrong side of history on this!” Clinton fumes.
The president is reminded that Gore has yet to give a statement on the matter. He probably shouldn’t say anything until Gore does, at least. Clinton agrees; he asks them to check with Daley first, find out what Gore’s going to say. And with that, Clinton is put back in his box. For the time being.
Phew!
Gore and Daley have one last talk Tuesday night before a decision is made.
“I think it looks pretty bad,” Gore says. “There seems to be unanimity” among the lawyers’ opinions.
Not Samurai Klain, of course, who wants to keep fighting until the last breath he draws, but among all the others. Boies, in particular, thinks that this is the end of the road, if for no other reason than that he doesn’t buy the Supreme Court’s equal protection argument at all. Every county in Florida does have the same standard, he thinks—the “intent of the voter” standard. It may be a very general standard, but it’s Florida law. They had asked the Florida Supreme Court not once but twice to give them a more precise explanation, a more detailed statewide standard, and both times the court balked. The SCOTUS itself could have suggested something back after the December 1 hearing—it’s not as if the Bushies we
ren’t complaining about this very issue as long ago as in their very first briefs before Middlebrooks, submitted on November 11.
Moreover, Boies thinks—and says, often—if a single general standard is unconstitutional, then elections in many, many states for many, many years have been a violation of the equal protection law. And the difference between counties in terms of the application of that standard is much less significant than the differences in counties based on different voting machines. The difference between how counties might apply the intent standard is a lot less than the difference between juries in the North and the South in terms of putting somebody to death—or even in terms of the difference in the application of the death penalty in Broward County versus Leon County! So if there’s an “equal protection” problem on this, then it’s a problem that pervades much of what local government and courts do.
All of which is to say, Boies concludes: the SCOTUS was going to find a way to put an end to this one way or another, and this was the way they chose, and that’s all she wrote.
The next morning, Daley returns to NavObs. Gore’s working on his speech.
Klain and his team—O’Melveny & Myers Los Angeles partner Mark Steinberg, Ohio State University professor Richard Cordray, Mark Messenbaugh, Dan Feldman, Bash—work all through the night, preparing a brief to the Florida Supreme Court. It explains how a statewide recount can be done in keeping with equal protection. It establishes a statewide standard based on Delahunt’s slutty standards—with any “discernible indentation or mark, at or near the ballot position for the candidate.” It asks the Florida Supreme Court to clarify to the SCOTUS that December 12—which just passed—was not the deadline, despite what Boies told them at that first state supreme court argument. It’s a brief that will never be filed. * At around 8 A.M., Klain gives the team the news: the vice president has decided to suspend all efforts. Klain delivers an emotional thank-you. “I’m privileged to have worked with a group like you,” Klain says.“It’s time for us to stop.”