Down & Dirty (15 page)

The posture a campaign takes with regard to punch card problems will depend on whether the candidate is ahead or behind. If
behind, a candidate should consider a request for a partial or complete hand count of punch cards to allow election officials
to determine voter intent on questionable ballots. Punch card and paper ballot voting provide the greatest chance of change
in voter totals.

—
The Recount Primer,
p. 33

At a November 9 meeting, Christopher and Daley—referred to as “The Flag” by their underlings since as former cabinet secretaries
they had flags in their offices—discuss their options with Democratic D.C. lawyers Klain, Young, Sandler, Chris Sautter, and
two Miami attorneys, Ben Kuehne and Kendall Coffey.

Coffey is considered something of a ringer. He’s a former U.S. attorney, and someone who’s known to be able to negotiate the
tricky politics of Miami, which at least one Gore lawyer calls a “snake pit.” Coffey—and his best friend, Kuehne—know election
law in Florida. And looking at Tuesday
night’s election, they already see things they don’t like, things they think are illegal: votes, ballots, and procedures that
Coffey intends to challenge. And Coffey’s no stranger to desperate situations and lost causes in Florida, having represented
Elián González’s Miami relatives.

More important, Coffey and Kuehne worked on the 1997 Miami mayoral election scandal, representing Joe Carollo. They were the
guys who sued on Carollo’s behalf, and it all ended up with Carollo in City Hall.

Of course, Coffey also brings to the recount table his share of controversy. As an attorney for Elián’s Little Havana relatives,
he was a major critic of President Clinton and Attorney General Janet Reno. And as a former U.S. attorney for South Florida,
Coffey received high marks for his performance as a successful, high-profile prosecutor of major drug lords—until he had to
resign after biting a stripper.

Ahem.

Let me back up.

A longtime Miami attorney involved with the Democratic Party, Coffey lost an election for the state Senate in 1992, scoring
only 43 percent of the vote against Republican Al Gutman.

To Coffey’s good fortune, however, Clinton was elected the same day. And after Clinton’s problems with attorney general nominees
were settled, Senator Graham recommended to Reno that Coffey become South Florida’s U.S. attorney, prosecuting federal civil
and criminal cases from Fort Pierce to Key West, replacing Republican appointee Roberto Martinez. Coffey was confirmed by
the U.S. Senate in November 1993.

In February 1996, Coffey was prosecuting Augusto “Willie” Falcon and Salvatore “Sal” Magluta—known as “Los Muchachos”—who
were charged with smuggling $2.1 billion worth of cocaine into the United States. Surprisingly, Los Muchachos were acquitted.
It would later come out that a juror, Miguel Moya, received a bribe of $500,000 to throw the case. Eventually, Moya would
be sentenced to seventeen and a half years in jail as a result.

But Coffey obviously didn’t know about the Moya bribe at the time. Despondent on the night of February 22, at around midnight
Coffey headed to Lipstik, a Miami strip joint. At some point he got very drunk, and he struck up a conversation with “Tiffany,”
a thin, blond former bank teller, then twenty-eight, whose real name is Tamara Gutierrez.

Coffey bought $200 in “Lipstik money,” used to pay the dancers for private sessions and lap dances in the fabled “champagne
room.” With that
destination on his itinerary, Coffey also purchased a $900 magnum of Dom Perignon.

In the champagne room, Coffey and Tiffany sat on one of the room’s two expansive couches. He told her he’d lost a big case.
He drank his Dom Perignon. He gave her little affectionate love bites. They had a moment.

Things got a little hairy, however, when Coffey tried to kiss Tiffany on the lips. She didn’t want him to, and when she tried
to wriggle away, he bit her left arm, only not so affectionately this time. He broke the skin and drew blood.

Tiffany screamed.

A bouncer and the night manager loaded Coffey headfirst into a cab.

Rumors immediately began to race through the area like a hurricane. In mid-March, Coffey told the
Sun-Sentinel
that the rumors were untrue. Had he been at Lipstik that night? asked a reporter. “No,” Coffey said. He added that he’d “never”
been to the club. “It absolutely never happened,” Wilfredo Fernandez, a spokesman for the U.S. attorney’s office, told the
Miami Herald.
On March 27, the incident was reported to the inspector general’s office. On March 28, investigators were sent to South Florida
to check out the charges.

It turned out that Coffey, by the way, had purchased his Dom Perignon, and his $200 in Lipstik money, with his American Express
card.

In May, the
Miami Herald
reported that Coffey was under internal investigation for the incident. This was just two days before GOP presidential candidate
Bob Dole—who had been making a campaign issue out of Clinton’s federal appointments—was to arrive in Florida. Coffey was summoned
to D.C. to talk to Reno.

A day later, Coffey resigned.

The husband of the bitten one said that he was “shocked” that Coffey quit. “I want to see him reinstated,” he said to the
Sun-Sentinel.
“He bit her, but not like a crazy man.”

F. Scott Fitzgerald was dead wrong: There are plenty of second acts—third acts, fourth acts—in American public life.

Here’s Coffey’s next act.

Daley and Christopher ask the accumulated Democratic lawyers for a brief discussion of Florida election law. They get one.

Florida has sixty-seven counties, but four ways of voting. Forty counties have high-tech “optical-scanning” cards, where you
fill in circles with a no. 2 pencil, as you do the SATs. Martin County uses old-school mechanicallever
machines, Union County uses paper ballots, and twenty-five counties use punch cards.

There are some problems. Machines don’t always read the card. You have to make sure that the bits of chad are completely punched
out of the ballot, which the seldom-read instructions clearly state, or the machine won’t be able to read any selection, and
your ballot will be an undervote. And, of course, you can vote for only one candidate, lest your ballot be an overvote.

Given the way these things work, you could blame many of the problems on voter error. You could additionally blame it on the
fact that punch-card ballots just suck. In 1988, the National Bureau of Standards studied the issue and recommended that punch-card
ballots be scrubbed themselves because of “inaccuracy or fraud in computerized vote-tallying.” (The report cited a 1984 election
in Palm Beach County, where a candidate for property appraiser sued the county for a number of ballot problems, including
“hanging chad.” He had lost by 242 votes. He lost his court case, too.) There’s pretty clear evidence that counties that use
punch-card ballots disenfranchise their voters in the process. Brevard County, for instance, used punch cards in its 1996
presidential race tally, and 26 out of every 1,000 ballots were undervotes, not registering a vote for president. Brevard
switched to “Opti-scan” ballots, and in the 2000 race that proportion fell to less than 2 in 1,000. An almost identical change
happened in Volusia County.

Whoever you blame, in this year’s presidential race, Palm Beach County is discarding 29,502 of its 461,988 ballots cast, because
of both undervotes and overvotes. This is a high rate of ballot rejection, 6.39 percent, but by no means the highest in Florida.
In Duval County, 9.23 percent of its ballots have been discarded—a full 26,909. Miami-Dade’s discard rate was only 4.37, but
since it’s the most populous county in the state with 653,963 voters, that still means 28,601 ballots in the trash.

In 1992, 2.3 percent of Florida ballots weren’t counted for president; in 1996 that was 2.5 percent. This year, the percentage
is 2.85 percent. That’s not exactly an improvement. A full 173,992 ballots will be thrown away statewide this year, from Key
West to Pensacola. About 105,000 are overvotes, about 60,500 are undervotes. Many undervotes are voters rejecting all of
the presidential candidates—but many aren’t. In Gadsden County, twelve out of every hundred voters didn’t vote right. Were
they confused because the presidential ballot was two pages long? Because at the top of the second page it said “Constitution
Party” and they thought that was a separate office?

There are two phases to the process, the lawyers explain. In the “protest” phase, parties can request a hand recount of ballots,
which would unquestionably find votes in the 175,000 unread ballots. The process begins by looking at a 1 percent sample of
the ballots in a county, and if a hand count of that 1 percent shows that there were enough votes missed that it could change
the outcome of the election, a countywide hand recount is ordered.

Should they ask for a statewide hand count of these ballots? The Flag asks.

Sautter says yes. Young and Sandler nod in agreement. After all:

If a candidate is ahead, the scope of the recount should be as narrow as possible, and the rules and procedures for the recount
should be the same as those used election night….Ifa candidate is behind, the scope should be as broad as possible, and the
rules for the recount should be different from those used election night. A recount should be an audit of the election to
insure the accuracy and honesty of the results.

—
The Recount Primer,
p. 5

But there’s concern about the probability that the 1 percent statutory test wouldn’t be met in a majority of the sixty-seven
counties. Most of these counties don’t use punch-card ballots, don’t have such high numbers of undervotes and overvotes as
are in the southeastern counties Broward, Miami-Dade, and Palm Beach. And anyway, the Democrats don’t have the resources to
send lawyers and observers to every county.

Then The Flag raises the political considerations. Though the Florida popular vote is split down the middle, most Florida
counties are Republican (Gore won sixteen counties; Bush fifty-one), and the Democratic lawyers have their doubts about the
cooperativeness of the elections supervisors in these counties. And, of course, they assume that undervotes in GOP counties
will largely be for Bush. Moreover, there is no statutory provision for a statewide recount. It would have to be county by
county, it would have to be either signed off by Jeb Bush, so they don’t have to fight sixty-seven separate battles, or ordered
by a higher court.

OK, they agree, we’ll ask for a hand recount in some counties. Fine. Now The Flag wants to know: Who evaluates the ballots?
What’s the likelihood that they’d be able to get the recounts? What would be the fallout of being denied recounts?

The Florida lawyers answer, with Sandler and Young also jumping in.
The ballots will be looked at by county workers supervised by county canvassing boards made up of a judge, a local election
official, and the elections supervisor. It’s likely that they will be able to get recounts. But if they were to try to get
a recount in a county where they have no case, that could undercut the legitimacy of their other claims. They have to be careful.

What about contesting the election? What about the butterfly ballot? Christopher wants to hear more about this.

“Ultimately, the test is ‘Was the will of the electorate suppressed?’” Coffey says. “But Palm Beach County is the battleground.
There are big numbers of overvotes, confusion over Buchanan.”

“If we were to file, where would we do so?” asks Christopher.

“Probably Tallahassee,” Coffey says.

“What about other non–Palm Beach claims?” Klain asks.

“We don’t know,” Coffey says. “We’re still looking for hard facts.”

“What about that state seal issue?” Klain asks, referring to Jeb Bush’s absentee-ballot mailing to Republicans, which used,
perhaps improperly, the state seal.

“That’s not enough on its own,” Coffey says. Underlying much of this discussion is the question of whether or not elections
officials were purposely helping the Republican Party, which would open up a claim of fraud. There are stories of people being
turned away at polling places, being denied replacement ballots, being told how to vote. These are just complaints and anecdotes
at this point, however.