Down & Dirty (25 page)

Carvin himself, who hoisted much of the 3 U.S.C. 5 argument
^*
into the brief late last night with Columbia Law School professor John Manning, thinks Olson’s equal protection argument
is something of a reach. Not until there’s a final count can this charge be credibly made, Carvin thinks.

But the brief—signed by Olson, Terwilliger, Marcos Jimenez (Frank’s older brother), Barry Richard, and Ben Ginsberg (with
his name spelled “Ginsburg”)—will end up proving to be a document that the Democrats perhaps should pay more attention to.
Not the courtroom lawyers so much as Whouley’s Boston ground troops. At this point, though, since not one of the four counties
has even begun its hand recount, the GOP complaints seem like, well, baseless whining.

Hours after the motion for a restraining order is filed before Middlebrooks, Klain phones up the Cambridge, Massachusetts,
home of Harvard Law School professor Lawrence Tribe, like Olson one of the highest-regarded Supreme Court attorneys in the
country. Klain is a friend and former student of Tribe’s, and he and Tribe’s wife, Carolyn, were once co-chairs of the unsuccessful
Senate campaign of Rep. Ed Markey, D-Mass. Tribe recommended Klain to Justice White for his clerkship.

Klain asks Tribe if he has any ideas on how to deal with the federal attack. Before Tribe knows it, there are fifteen or so
people listening to him via speaker phone, as he finds fallacies in the Bush team’s federal case.

The substantive complaint hammers the whole idea of manual recounts, Tribe observes. But this is a weak argument, he says.
These counts take place under the watchful eyes of observers from both parties, and even sometimes the media. In some ways,
they’re much more accurate, not less. He goes on, poking holes in the due process argument, the equal protection argument,
the whole idea of whether there is a federal issue at stake. The call soon ends.

Soon enough, Klain calls back.

“The Vice President would really like it if you could get on a plane immediately to argue this for us,” he says. “We’ll find
a charter plane for you if you want.”

Tribe says that he’ll need a minute to confer with Carolyn, his chief adviser. She usually discourages him from taking on
new projects, since he’s so overextended. But this time she’s on board. “This could determine who becomes the next president,”
she says. “The issue of making sure that all the votes get counted is awfully close to what you’ve spent your life struggling
for, in terms of constitutional rights. I mean, if you don’t do this, I don’t know what you would do.”

Tribe arrives in Palm Beach that evening. He flies commercial; the charter flight would have gotten him down to Florida later.
Upon arriving, he hears that arguments have been scheduled for Monday.

The Volusia canvassing board changed its mind yesterday, and as soon as it finishes tabulating its 400 or so write-in votes
today, it will commence with a full recount of its 184,019 ballots.

Broward’s 1 percent sample hand recount will commence on Monday, and on Tuesday the members of the Miami-Dade canvassing board
will vote to see if they’ll go ahead with their test 1-percent hand recount.

The only action in South Florida today, therefore, is at the Governmental Center in West Palm Beach, where Team Gore’s crucial
Step One—a hand recount of 1 percent of a county’s ballots—has begun.

LePore is numb, with butterfly ballots in her stomach. Ever since Tuesday, she’s been unable to sleep—she dozes in and out.
Her eyes are bloodshot. She has no appetite, and when she does try to eat, she can’t hold it down, one way or another.

The other two members of the canvassing board are Carol Roberts and Judge Burton. Both the Republican and Democratic lawyers
on-site have been sizing them both up.

Roberts is an unrepentant partisan Democrat, from the proclamations emanating from her frequently flapping mouth down to the
Gore-Lieberman bumper sticker on the front of her Lexus SUV. She’s always been ambitious; she smokes MOREs, and she’s always
wanted more, too, from the day she got engaged to a twenty-nine-year-old doctor at the age of sixteen (unbeknownst to him),
to the impulsive beginning of her political career.

That began when the mother of six learned that the two West Palm Beach city commissioners were running unopposed. This bothered
her. She drove down to City Hall and decided to run against the one she’d never heard of before. And she beat him. Other seeds
of ambition were planted. She was elected to the county commission in 1986.

Blond and pink-lipsticked, Roberts is known as a fairly effective commissioner, with smarts that belie her lack of a college
degree—if also with an ego that sometimes outmatches her talents. Her office is decorated with photographs of her with Bill,
her with Hillary, her with Burt Reynolds. Her home is the same way—with Gregory Peck, Geraldine Ferraro, Ted Kennedy, Don
Shula. When she was elected president of the Florida Association of Counties, she was thrown a big party. By Carol Roberts.

“I’m accustomed to being vocal,” she would later say. “I don’t mind having an argument if I think I’m right. It’s part of
my personality, it’s what I taught my kids: stand up for what you believe in.” The fact that two of her six kids are Republicans
is proof that they took her advice to heart, she would argue.

So the Republican lawyers, led by local rich boy Miami attorney Mark Wallace, thirty-two, feel they know right off the bat
where Roberts is coming from.

Burton’s a different breed of cat.

They know he’s a Democrat. But, on the other hand, he was appointed to the bench in May by Jeb. So, in Florida terms, he’s
complicated.

Gray-haired with icy blue eyes and a wattle of neck chub that practically swallows his chin, Burton’s a Newton, Massachusetts,
boy who moved down to Florida to follow in his older brother’s footsteps and attend law school. He was with the state’s attorney’s
office from the time he received his J.D. on, save for five years after he and his bro set out a shingle of their own in 1990.

Burton liked prosecuting, he liked nailing murderers, liked running the crimes-against-children unit, liked taking loser cases,
because he found them challenging. His highest-profile case had been the 1987 trial against fast-living ex–National Hockey
Leaguer Brian Spencer, who had been accused of kidnapping and murdering the son of a Palm Beach realtor who was a client of
Spencer’s hooker girlfriend. Burton lost the case in October 1987; Spencer was shot to death the next June.

Burton was picked to be on the canvassing board almost the same way he heard that Jeb had picked him to be a judge: a short,
surprising, and very brief phone call came in and changed his life forever. In May, after being passed over twice for an appointment
to the bench, Jeb phoned up.

“Mr. Burton, Jeb Bush, how you doing?”

“Um, fine,” Burton said, not sure if it was really Jeb, pretty sure that it was a friend playing a prank.

“So you want to be a judge?” Jeb asked. Burton said yes. “All right, well, I just wanted to let you know that I’m appointing
you to county court.” Burton thanked him. His first day was May 8.

Three months and change later, at the end of August, Burton got a call from the secretary to the county’s chief judge, Walter
N. Colbath, Jr. The judge who normally sat on the canvassing board was on the ballot this year, so he had to recuse himself,
and Colbath wanted Burton to take his place.

“That’s fine,” Burton said. “What do I do?” Burton didn’t even know what the canvassing board was.

“You deal with elections stuff,” the secretary said. It’s no big deal, she said. “Go talk to Theresa LePore, and she’ll give
you a little background on what you’ll need to do.”

“That’s fine,” the easygoing Burton replied.

By today, Saturday, Burton has already had to do much more than he’d ever anticipated. There was the first machine count,
which resulted in a net of 643 more Gore votes. There was the matter of speaking to the press, which he’d been used to in
much smaller numbers—maybe a reporter or two from the local paper during a murder trial or something—though nothing like the
ravenous wolf packs now camped outside the Governmental Center. But someone had to do it, and he was sent out to do so by
county officials who were afraid of what Roberts might say and sympathetic to the shell-shocked LePore.

At 2:03
P.M
., a bunch of bureaucrats carry in three silver metal suitcases containing the 4,627 ballots.

The sorting begins, as does the kibbitzing. “You are going to have to leave if you tell anybody anything,” Roberts says to
an observer who’s caught speaking to a sorter.

“Here is the deal,” Burton adds. “‘Observer’ means you observe. That means the sense of your eyes. If you have a problem,
write it down.” Hands go up. A cell phone rings.

“Who has a phone?!” Roberts asks. “OUT!”

In interpreting just what permutation of incompletely punched-out piece of chad constitutes a vote, LePore had informed Roberts
and Burton about a guideline that the board—under Jackie Winchester—had adopted in 1990, which ruled that ballots with partially
punched chad could be counted as votes.

There’s the “hanging chad,” she explains, in which the chad is hanging on to the ballot with one corner; the “swinging door
chad,” in which the chad is connected by two corners; and the “tri-chad,” in which the chad is connected in three corners,
with one corner punched out. All of these are votes according to the 1990 standard. A “dimpled chad,” however, in which all
four corners are attached but there’s a puffed indentation in the middle of the chad, does not count as a vote.

Nevertheless, when the board members start to examine the undervote and disputed ballots that afternoon, they seem to abandon
the 1990 precedent. They begin holding ballots up to the light to see if any light can be seen through the chad—what they
call the “sunlight” or “sunshine” standard. This meets the aggressive objection of Mark Wallace, the lead Republican attorney
at their table.

Wallace has been on the Bush program since 5
A.M
. or so Wednesday morning, when Jillian Inmon, executive director of the Bush-Cheney state effort, roused him from slumber
in his Coconut Grove penthouse and convinced him to hop in his black BMW and get to Palm Beach to supervise the machine recount.
After graduating from the University of Miami (’89) and University of Miami Law School (’92), Wallace worked at his venture-capitalist
daddy’s law firm for a bit before he took a leave to serve as an aide on the gubernatorial race of this cool guy Jeb he knew
from Hurricanes games.

To Wallace, a couple things seem clear right from the get-go. One: Carol Roberts is on the other side. Two: the canvassing
board has no idea what it’s doing, or how to do it. And of course he’s not exactly about to keep his opinions secret.

On the early afternoon of Wednesday, Coddy Johnson and Kevin Murphy—fresh from Austin—had met him in the Governmental Center
parking lot. “Guys,” he said upon their arrival, “it’s a little crazy in there.” It was a line they would repeat to each other
frequently throughout the Palm Beach hand recount; and it was chaos they would use to their advantage throughout the Palm
Beach ordeal.

Not surprisingly, Roberts and Burton take a fairly immediate dislike to him. They think that he’s there to tie things up,
to delay, to gum up the works. Wallace himself will refer to “the four-corner offense”—a reference to a strategy by various
college basketball teams to run out the clock by leisurely throwing the ball around, eating up valuable seconds—though he
will do so by way of denying that he’s doing it.

And not only is Wallace slowing things down, but he can’t even figure out a subtle way to do his damage. Wallace sits so close
to Burton his knee lightly hits the back of Burton’s chair. At another point, Wallace’s chin makes contact with the back of
Burton’s left shoulder. Mouth agape, objecting to myriad ballots on which he says he doesn’t see votes, Wallace very early
gets on Burton’s nerves.

“I’m going to voice my objection,” Wallace says, when Roberts holds a ballot up to the light.