by Jake Tapper
Bush’s Florida team has been rewarded. Olson was nominated to be solicitor general; Allbaugh is head of the Federal Emergency Management Agency; Josh Bolten is White House deputy chief of staff. As I write this, they’re talking about putting Baker at the helm of the World Bank. Zoellick was named U.S. trade representative. Ken Mehlman is White House political director. Brad Blakeman is deputy assistant for appointments and scheduling. John Bolton was nominated undersecretary of state for arms control and international security affairs. Ari Fleischer was named White House press secretary. Dan Bartlett is a senior communications staffer. Mindy Tucker was named spokeswoman for the Justice Department. It took new White House spokesman Tucker Eskew only a matter of seconds before he was caught in a lie so egregious he was slammed by both the National Review and the Wall Street Journal. * But, as has been the case, after the puff of smoke cleared, Eskew kept going.
As of this writing, of course, many Gorebies are still trying to figure out what to do with their lives. Bill Daley has an office in the same complex where Monica Lewinsky once lived and that Bob Dole still calls home—the Watergate. David Boies returned to his lucrative law practice. Warren Christopher and Ron Klain are back at the L.A. and D.C. offices of O’Melveny & Myers; Klain just hired Jeremy Bash. Whouley’s back at Dewey Square, shuttling between Boston, where Newman and other Boston Boys are, and D.C. Young, Sautter, Alper, et al. are back in D.C.; Fabiani finally got back to La Jolla; Hattaway’s in Boston.
Most of the lawyers from both sides are back in business—Bartlit in Denver, Beck in Chicago, Terrell and Bristow in Houston, Ginsberg, Van Tine, Carvin, Terwilliger, Olson, et al. back in D.C. The Florida lawyers from both sides seem well, if not better than ever—Richard, Martinez, De Grandy, Wallace, Scherer, Zack, Berger, and Kuehne are all fine, the Bushies maybe a bit more so than their Gore-backing counterparts. According to sources, Coffey no longer works for the same law firm, because one of his former law partners, a Cuban-American, has political ambitions and did not want to be associated with a man who was associated with Al Gore.
Indeed, Hurricane Chad may have left Florida, but there is damage in its wake. Judge Lee has reregistered from the Democratic Party to “no party”; Judge Burton and Theresa LePore were considering doing the same as of January 2001. David Boies and Mitch Berger were cleared by the Florida Bar Association of any ethical wrongdoing in the Lavelle matter. Republicans were gearing up to unseat the four Florida Supreme Court justices—Quince, Anstead, Pariente, and Lewis—who voted to begin a hand recount of the state’s undervotes.
Jeb Bush launched a commission to look into how voting can be improved in his state. Harris and Clay Roberts were hauled up and embarrassed before a U.S. Commission on Civil Rights hearing in Tallahassee that looked into the state’s elections problems. “I heard, today especially, from supervisors who were desperate, desperate for your help,” said Commissioner Victoria Wilson. “And the word that comes to mind is that you abandoned them. They were abandoned by your department.” Throughout the hearing, Harris, the chief elections officer of the state, had to turn to Roberts to find out the answers to questions.
Additionally, television networks have been revisiting their rules on calling winners based on VNS data. A typical result: an investigation of CNN, commissioned by CNN, concluded that “CNN’s election night coverage was a debacle.” A study of VNS commissioned by VNS was less harsh, ruling that the Election Night mistakes were “the product of a number of system errors that tended to work in concert at various points in the evening,” and recommending “stricter quality control and quality standards.” No shit. Networks will indubitably be more circumspect about calling a state in the future. But to be realistic, about the only thing we’re probably guaranteed will never happen again is you won’t hear Dan Rather say, as he did on Election Night, “When we call a state, you can take it to the bank.”
Speaking of taking it to the bank, the whole deal looks like it will cost Florida more than $3 million. Not to mention a whole lot of respect. Joe Klock and his Steel Hector & Davis team handed Katherine Harris—and Florida taxpayers—a bill for $682,266. The attorneys insisted that they cut costs wherever possible; Klock slept at a friend’s house while in Tallahassee, for instance. For 3,724 hours of work, the taxpayers got a bargain, the law firm said. Including the $10,000 to send the lawyers to Washington, D.C., in a Lear Jet to argue before the U.S. Supreme Court. Other expenses Floridians will end up footing the bill for: around $300,000 for the constitutional scholars hired by Rubottom, Feeney, and McKay. Sixty grand for extra security measures in Miami-Dade. Palm Beach County paid Bruce Rogow $100,000 to represent LePore. A quarter mil went to defend Seminole County’s Sandra Goard. The private attorney for Agriculture commissioner Bob Crawford charged taxpayers $46,477; weeks after the election debacle concluded, Crawford resigned to take a cushy job with the Citrus Department. About the only expense that seems worth it is the $2,500 Volusia County spent to feed its vote counters.
As America returns to its blissful slumber, perhaps the most severe divisions created are those within the U.S. Supreme Court, where reportedly the actions of the majority—and the failure of O’Connor and Kennedy to work with Souter and Breyer on trying to fashion a solution to the problem—have left clerks and justices demoralized.
Beyond the closed doors of the U.S. Supreme Court building, it is disturbing how few conservative legal scholars have proved to be intellectually honest enough to read the majority’s December 14 ruling as nothing other than a slapdash piece of work at complete odds with conservative legal thinking. One of the few to do so was John DiIulio, Jr., who wrote, in a December 25 Weekly Standard piece entitled “Equal Protection Run Amok,” that to “any conservative who truly respects federalism, the majority’s opinion is hard to respect.” DiIulio continues:
The arguments that ended the battle and “gave” Bush the presidency are constitutionally disingenuous at best. They will come back to haunt conservatives and confuse, if they do not cripple, the principled conservative case for limited government, legislative supremacy, and universal civic deference to legitimate, duly constituted state and local public authority.
“In most cases,” acknowledge Rehnquist, Scalia, and Thomas, “comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law.” There are, however,“a few exceptional cases,” and “this is one.” Why?
Why, suddenly, do inter-county and intra-county differences in election procedures, which are quite common in every state, rise in the Florida case to the level of “equal protection” problems solvable only by uniform standards (by implication, uniform national standards) and strict scrutiny from federal courts?
How can the conservative jurists on the Court find prima facie fault with what the Bush legal team disparaged as “crazy quilt” local laws and procedures?Why,in any case,weigh the alleged problem in Florida without taking cognizance of how election procedures vary from polling station to polling station and from county to county in, say, Pennsylvania? And why, in reversing a state’s highest court for not following the U.S. Constitution, and for infringing upon the state legislature’s authority, does the nation’s highest court substitute its own resolution of the ultimate “political question” for the Constitution’s explicit, black-letter reliance on state legislatures and, if need be, the U.S. Congress?…
I would like to believe there was a time when conservatives would have instinctively recoiled at the way we have all now fallen into thinking of and battling for the presidency as if it, rather than the Congress, were constitutionally the first branch of our national government. There was a time when conservatives understood that the localisms of little platoons and county governments were good and to be preserved and protected by law and custom unless proven bad by experience…. There was even, I suppose, a time when conservatives would rather have lost a close, hotly contested presidential election, even against a person and a party from whom many feared the worst, than advan
ce judicial imperialism, diminish respect for federalism, or pander to mass misunderstanding and mistrust of duly elected legislative leaders.
If there ever was such a time, it has now passed, and conservatives ought to do what they can to bring the country back to this future. Regrettably, Bush v. Gore does no such thing. Desirable result aside, it is bad constitutional law.
As I write this, media organizations are conducting their statewide recounts of the election. On January 27, 2001, Dennis Newman sent out an e-mail to the dozens of members of the Gore recount team—Charlie Baker, Jack Corrigan, Michael Whouley, Nick Baldick, Donnie Fowler, Mitch Berger, Ron Klain, Dexter Douglass, Ben Kuehne, et al.
“As we all know,” Newman wrote, “Burton, Harris, Scalia, Jeb, et al stole the election from us. The attached article from today’s Palm Beach Post is further proof. Basically it says that if Burton had counted the ballots objectively we would have picked up an additional 672 votes. This is in addition to the 174 votes (should be 215 but that’s a whole other dispute) that the Board had given us in the recount, but Harris refused to count.
“In addition, other media counts since the election have shown that we picked up an additional 130 votes in Lake County and 120 additional votes in Hillsborough County. This gives us an additional 672+174+130+120= 1096 votes. Please circulate this information as widely as you can. Anything to get National media attention to this would obviously be helpful.”
The Palm Beach Post story, however, showed nothing of the sort. It showed that “[i]f Democrats had gotten their way and dimpled ballots in Palm Beach County had been counted as votes, Al Gore would have picked up 682 votes, which is more than President George W. Bush’s 537-vote statewide margin of victory, according to The Palm Beach Post’s examination of disputed ballots.”
But not even in Broward County were all dimples—regardless of whether or not there was a pattern—considered votes. And this is the inherent fallacy of the media-funded recount. A truly accurate tally would reflect ballot counts that adhere to the way each county’s canvassing board would have ruled. Since a majority of the sixty-seven counties never stopped to reconsider undervotes or overvotes, there is no precedent as to how they would have ruled. So it doesn’t really matter what the counters hired by the Washington Post or any other paper judges to be a vote. All we can get is a set of hypotheticals.
Nevertheless, it’s silly to pretend that reasonable people shouldn’t wonder who, indeed, garnered the most votes in Florida—especially considering that Al Gore gleaned more than half a million votes more than Bush in the popular-vote contest. The world entered the swamps of Florida on Wednesday, November 8, with 175,000 unread ballots throwing the Ellisanointed Bush coronation into serious doubt. We left it on December 13, with those same ballots unread, the vast majority of them still uncounted.
Certainly George W. Bush and his minions did everything they could to stand in the way of anyone—witness Tucker Eskew’s discrediting of the media attempts to examine the ballots—trying to get to the bottom of whom tax-paying, God-fearing, Americans voted for. * Baker said “NO RECOUNTS” early on, as was his right, and the lawyers and pols followed through, almost entirely within the legal system. GOP lawyers on the ground—Wallace, Scherer, Martinez, De Grandy—stalled, whined, obstructed. Politicians and spinners—Fleischer, Eskew, Racicot—exaggerated, misled, lied. Lawyers in the courts set traps, like Carvin, and disingenuously represented the facts as they wanted them to be seen by the court, like Olson. The trial lawyers hired by Baker—Bartlit, Beck, Terrell, Richard—went after victory in court regardless of The Truth or, in some cases, even their own personal politics. Political operatives—Mehlman, Blakeman, the emboldened Miami-Dade wusses—injected venom into the air, making an already tense situation even uglier. Bush and Cheney sat back and reaped the benefits of the ugliness their organization was putting out there.
In other words, the American system worked exactly as it’s supposed to.
Was the Gore team any better behaved? With two exceptions, no. Generally, the Democrats were just as disingenuous, just as power-thirsty, and just as hypocritical. They co-opted Theresa LePore and lied about the official number of votes that came in from Palm Beach County after the extended deadline. They, too, cajoled, misrepresented, misled, lied. Daley bullied Butterworth; Wexler lied about LePore; Gore told the American people just plain falsehoods about Seminole County; Strep Throat spread malicious gossip about Harris; Burton and Penelas were slammed for selling out voters for their own personal gain, with little evidence to back up the claims.
But in two respects, the Gore team was better behaved. First, the Democrats were more restrained on the ground, and with a few exceptions—Nadler, Jackson, Dershowitz—more responsible in their rhetoric. Of course, maybe they had to be calmer. After all, they were the ones asking for hand recounts, getting deadlines extended, contesting the election. Gore was never officially ahead in the Florida vote count; they had to be more temperate.
And, let’s not forget, Gore did call, however lamely, for a statewide hand recount, the only thing that could have truly and honestly brought us to at least the neighborhood of an answer as to whom a majority of the citizens of Florida really chose on November 7. But, on the other hand, despite Gore’s lofty rhetoric, at no point did his political operatives or lawyers make an attempt to have all the votes counted. Not during the protest, not during the contest, not on the ground when various counters called and asked if they wanted the votes in, say, Lake County, checked out.
Throwing a huge question mark into any depravation assessment, of course, is the Republican overseas-absentee-ballot conference call. All the other shenanigans that took place in this mess—delaying tactics, vote trolling, standards adjusting—did so within the confines of the law. Except for this. If this order was carried out, it was illegal. If ballots cast after the election came in, and were counted, that was cheating.
I seriously doubt, however, that there will be any investigation into the matter. People want this thing to be over with. And remember who’s in charge of the country now. There is, in my mind, a much greater likelihood of Bush team dirty-tricksters and spinners launching a campaign to discredit this author and this book than there is of any sort of law-enforcement investigation into the overseas-absentee-ballot matter. Despite the fact that this book also points out examples of nasty behavior of Democrats, and lies by Gorebies ranging from the Veep himself to Reverend Jackson to Congressman Wexler, since the Republicans are in the White House, the charges against them might seem harsher. After all, at this point, who really cares if Harry Jacobs lied on Hardball? But this, too, is part of the problem.
The race was hardly over before the second-guessing began, and journalists and pols began asking what, if anything, could have been done differently.
To be sure, Daley, Boies, et al., had an uphill fight from the first minute. The Republicans had four things going for them. First, Bush had been declared the winner that night by the media, i.e., the TV networks. This was in no small part thanks to John Ellis, unbelievably put in charge of calling the election results for Fox News Channel. Second, and perhaps most important, Bush actually did win the vote tally that night, by 1,500 or so votes, and the machine recount, by 300 votes, and the system is set up to make it rare that an election is overturned. Third, Bush’s brother was the governor, and he had the state wired, top to bottom. And fourth, the Bush team did a better job during the recount.
Team Gore took a horribly chaotic situation—created by shortsighted state legislators with rather limited legislative gifts—and made it worse. It was all too easy for five justices of the U.S. Supreme Court to step in, find a troublesome constitutional issue swirling around in the stew, and slam the lid down, putting an end to the madness. It was the Democrats who asked canvassing boards to change their standards, who took them to court to change their standards, not because they were concerned that voters were being disenfranchised, though that was the rhetoric in which they cloaked thei
r cause. They did it because they felt that was the only way they could get enough votes so Gore could win.
Of course, the Gorebies were also hobbled by what David Leahy calls “the horrible law.” “All the politicians were complaining, ‘This judge,’ ‘This court,’” Burton said to me in January 2001. “But they wrote the laws! The laws are horrible! ‘Intent of the voter’?!”
True enough; there was no mechanism for a statewide recount. But would it have been impossible? Judge Lewis likes to fantasize about how he would have solved the problem, had he been assigned the election contest. He would have gotten both Bush and Gore themselves in his courtroom, laid out the problem, and worked with them from the bench to resolve it. Maybe he would have even let Bush choose the standard.
This was fantasy, of course. And the case ended up before Sauls. But what kind of a case did the Gore legal team present? Not a strong one, not a particularly convincing one. And yet, Boies points out that Sauls’s judgment was ultimately overturned, and had it not been for the SCOTUS stepping in, the undervotes, at least, would have been counted.
Indeed, Team Gore did have this one ally. Even if they didn’t have Butterworth—who clearly took his position as an impartial arbiter of state law far more seriously than the disturbingly ambitious Harris ever did—the Gore team had the Florida Supreme Court. The seven justices in the first ruling, and then the four justices in the second, were willing to take a bold stand to ensure that votes were counted. But with the guidance of Boies, the justices manufactured an ill-conceived way to get to the bottom of it all; first clearly rewriting Florida election code, then ordering only the undervotes counted.