Down & Dirty (31 page)

But the 320-vote discovery feeds into a larger concern everyone in the room has: will they have enough time to finish? After
all, Harris has made it clear that all results have to be at her office by 5
P.M.
Tuesday.“Every county must have official certifications of the voting returns from last Tuesday delivered to the Florida
Department of State by 5
P.M
… or those returns
will not be included in the statewide canvass,” she says in a statement. “No county canvassing board has ever disenfranchised
all the voters of its county by failing to do their legal duty to certify returns by the date specified in the law. I am confident
that no county canvassing board will do so in this election.”
^*

Additionally, since no one wrote to Harris asking her opinion of hand recounts—despite Kerey Carpenter’s lobbying in Palm
Beach—Harris wrote a letter to state GOP chair Cardenas, saying that, indeed, she thinks hand recounts are only for times
of extreme emergency, like a hurricane. The letter was then leaked to the media and everyone else.

Ten hours into the Volusia County hand recount, more than half the ballots have been checked out and 58 precincts out of 172.
As the counting ends for the night, Bush is up a net 33 votes, much of this due to precinct 305.

Reporters and Democrats start questioning Young’s methods. He hears thirdhand that some of the Big Gun Democrats in Tallahassee
want him removed, they think he’s not aggressive enough, they’ve heard he’s being serene and not in-your-face with the board.
But Young’s not worried. He knows those votes will be picked up. He tells reporters that it’s a “fluid process.” On a cell
phone, he tells one of the Gorebies in Tallahassee to “go to hell.” Then he throws the cell phone across the parking lot.

As Sunday becomes Monday, the canvassing board in Polk County in Central Florida conducts a partial hand recount of its Opti-scan
ballots that you won’t hear one Bushie object to. That’s because the board—consisting of two Democrats, Supervisor of Elections
Helen Gienau, and county court judge Anne Kaylor, and Republican county commission chairman Bruce Parker—scraps about 108
net Gore votes. Most of this change comes from the 90 Gore votes from precinct 131—the West Lakeland Church of God—that, upon
second glance, seem to have been counted twice. A similar deal happened in Seminole County last week during a partial hand
recount there; Bush picked up 98 votes in that one.

Of course, both Seminole and Polk Counties use Opti-scan ballots, which may be easier to decipher since counters are looking
at the handiwork of voters with pens on paper, not styluses on punch cards. Still, there is the same subjectivity employed,
and humans—with, presumably, the same frailties and partisan temptations—are doing the counting.

Incidentally, Seminole and Polk Counties both went for Bush over Gore by about 15,000 votes apiece.

The Bush lawyers do not anticipate that they will have a friend in Judge Donald Middlebrooks, into whose courtroom they stroll
Monday morning at around 9
A.M.
—Olson, Ginsberg, Marcos Jimenez, and a couple others. Middlebrooks is a Clinton appointee, the Bush legal team points out,
downplaying its expectations.

And Middlebrooks sure does sound like a liberal—he worked for former Democratic governor Reubin Askew, even drafting the state’s
first sunshine law. In 1975, he got Askew to pardon two innocent African-American men wrongly convicted of two 1963 murders.
He worked for powerhouse Steel Hector & Davis, but served as director of the Florida Bar Children’s Fund and headed the Volunteer
Lawyer Resource Center for inmates on death row. And while on the bench, Middlebrooks exacted a draconian financial penalty
against Royal Caribbean Cruises for dumping hazardous waste into the sea and then lying about it.

What bad luck for the Republicans to draw such a judge!

But they’re entering their case—entered their case, actually, since most of the documents have already been filed and responded
to over the weekend—so as to get it to the more conservative Eleventh Circuit Court of Appeals in Atlanta and, if need be,
the U.S. Supreme Court.

“I’m not under any illusion that I am the final word on any of this,” Middlebrooks begins by saying, as he stares out on the
sea of lawyers before him. “In fact, I take great, great comfort from that fact.”

Rogow, representing LePore, points out that Olson hasn’t sent him a statement of facts.

“We apologize,” Olson says. “We attempted to fax copies of this material and data at an early hour in the morning to everybody
connected with it, and I apologize to everyone who did not receive it.”

“Well, the fax machines broke, all kinds of things happened,” says Middlebrooks. “Last night around eleven o’clock our computer
system crashed, so a lot of what we were working on disappeared.”

You see what happens when you trust the infallibility of machines?

Olson begins. “It is particularly crucial that votes in presidential elections be counted according to consistent uniform
and objective standards,” he says. “Voters must know that their ballots will be treated fairly and equally, not distorted
in a partisan standardless vote-counting process.”

After Olson bashes the Dems for selectively plucking four Democratic-leaning counties for their hand recounts, Middlebrooks
asks about media reports of a hand recount that took place in Seminole County. Wasn’t that because of a Bush campaign request?
No, says Olson. And even though it was a hand recount in a fairly partisan county, it wasn’t done according to “the Florida
statutes that we are attacking here, or that we are challenging here.”

(More to the point: it’s not true. Though just yesterday NBC’s Tim Russert said “there was a hand recount in Seminole County,”
what actually happened was that some ballots had to be hand-fed into two of the counting machines, which is of course totally
different.)

Olson says that the statute allowing canvassing boards to call hand recounts is wildly permissive. “The constraints are unlimited
and unfettered,” he says. “And there’s no guidance for the exercise of the discretion with respect to initiating a recount.”
But Middlebrooks points out that the county-by-county nature of it all “seems to be a result of Florida’s decentralized system.”
He wants to know what Olson suggests should be done about the fact that there is no statewide standard when it comes to assessing
ballots.

“There should be a standard,” Olson says.

How can Olson complain about counties making different decisions about recounts when there are at least four different ways
that various
counties vote? “But even the equipment is different, isn’t it?” Middlebrooks asks.

“Pardon me?”

“The equipment looks like it’s different,” says the judge. “I thought all counties used that stylus punch system, but in something
I saw, apparently there’s a wide disparity in terms of even how counties vote. So it seems like the idea of ‘the right standard’
or ‘more precise standard’ might be difficult.”

Olson says that some counties are doing things differently now from how they were done in the past. He says that Theresa LePore
has said that in past Palm Beach recounts, observers weren’t allowed to object, while they are this year. This is something
that the Republicans don’t seem to have a problem with in the counting rooms, since they’re the ones doing most of the objecting,
but here Olson trots it out as an example of the horror. Olson also complains about Palm Beach changing its counting rules
in the middle of Saturday’s count. But again, this was something done to the pleasure of the Republican attorneys—like Wallace,
Johnson, and Murphy—who wanted the standard tightened up.

Middlebrooks wants to know: “Is y’all arguing there should be only a machine count and no manual count after that? Or that
if you are going to have a manual count, you need more precise standards?”

“I think more closely the latter,” Olson says.

On this issue, in many ways, the presidency doth hinge.

Of course, as exemplified by Brevard County—which switched from punch card to Opti-scan and saw its undervote rate plummet—it
can also be observed that different voting systems provide different counties’ voters with different odds as to whether their
votes will be counted. This, too, would seem to be a violation of equal protection, and one doesn’t have to be a history professor
at Dartmouth to guess what sorts of Florida residents are more likely to have been stuck with antiquated and less accurate
voting technology. But this argument is not one that Olson is concerned with today.

Olson now paints anyone looking at a ballot as if they’re under suspicion of a crime. He ominously states that “Saturday in
Palm Beach, according to one report, certain ballots were twisted and turned.” He does not cite the one report. “There were
pieces of chads found on the floor,” he adds.

Olson further argues that due process will be violated, because there does not exist enough time to properly adjudicate the
matter, because
“the electors have to be selected and cast their ballots on November eighteenth.”
^*

“Unless there are standards,” Olson warns, “the votes of the plaintiffs may be evaluated differently by individuals who don’t
have any constraints on their exercise of that discretion and may have some reason to wish it to come out a certain way.”
Again, there is no mention of any Bush desire to have the hand-counted Seminole County ballots reconsidered. “The process,
to sum it up, is selective, standardless, subjective, unreliable, and inevitably biased because people who have interests
in the outcome of the election are making subjective judgments.”

Now it’s Tribe and Rogow’s turn.

Tribe has spent the weekend submerging himself in it all, talking to friends and former students, faxing and reading and thinking.
And then, Sunday night, a walk around the hotel swimming pool with his wife, off whom he bounces ideas.

“Mr. Olson has spent a lot of time on the merits of his argument, but what he forgets is that he’s here on the question of
whether or not a preliminary injunction should be issued,” Tribe says. “All of this discussion about chads and how the system
operates is interesting, but the truth is, he’s put the chad before the horse.

“What counts is, does he have a case that says that a canvassing board using the Florida statutes is violating the Constitution?”

Middlebrooks interrupts. Having watched Palm Beach County’s hand recount the day before, “it does seem like the rules in terms
of what was penetration were changing some. Sometimes it was if you see a square through the light, and sometimes three corners….
It doesn’t seem like a very clear process. Can you tell me something about that?”

Rogow brandishes a ballot.“I don’t have one of those punchers with me, but if the court simply takes a paperclip and unwinds
it and punches out a corner, you will be able to see that sometimes one would punch one corner, the other three corners would
be connected. But when you punch out that one corner, you have penetrated the card, and therefore you have voted. And that
is all that that process seeks to do, to make that determination.

“There is not an issue here of people fooling with these cards or making determinations with these cards that are partisan
in any way….Not only
do you have observers from each party and you have people from the supervisor of elections’ office, but the press is there.”
At least in part thanks to Middlebrooks, one might observe.

“How can there be irreparable injury in the public knowing what the outcome of the recount is?” Rogow asks. “They make the
argument—and this I thought was quite startling—that somehow or other the public knowing… the result of the election may not
have been for Governor Bush, but may have been for Vice President Gore, that somehow or other if that result is known, that
will harm the nation’s psyche.

“Is it messy?” Rogow asks. “Does it go on and on in some fashion? Yes, it does, but that’s what democracy is about.”

Rogow cites the Beckstrom Florida Supreme Court case, which holds that if a circuit court finds that an election has been
held, and the result is such that there’s reasonable doubt as to whether the will of the voters has been expressed, the court
can call for a new election if it wants.
^*