Down & Dirty (32 page)

“All right,” Middlebrooks says. “Tell me two things. First, articulate the standard Palm Beach County is using to check these
ballots.”

“The standard is—and they use these words, I don’t like them, but they are the words they use—if it’s a hanging chad, if it’s
a swinging chad, if it’s a tri… then that is counted as a vote. Pregnancy does not count in Palm Beach County; only penetration
counts in Palm Beach County.”

The courtroom laughs.

“All right,” Middlebrooks says. “I had a second question, but I think you caused me to forget it.”

So this is what hell looks like.

In Palm Beach County circuit courtroom 4-C, before Judge Stephen Rapp, the lawyers are stacked in the jury box and wedged
ass-to-ass in the first three rows of the gallery, five thick, ten deep, as crowded and nearly as unruly as the mosh pit at
a Nine Inch Nails concert.

Al Gore may have put the butterfly ballot revote deal on hold for the time being, but eighteen plaintiffs and their lawyers
haven’t. Chief Judge Walter Colbath of the fifteenth circuit in Florida has consolidated the suits. In a way, it’s not fair
to lump them all together. Some of the plaintiffs are simply political plants. But others have genuinely moving stories, like
those of Florence and Alex Zoltowsky, seventy and seventy-five, both of whom are Holocaust survivors. Florence spent two years
in an underground cave hiding from the Nazis, while Alex survived a Polish concentration camp. The right to vote is paramount
to them, they say. And the very idea that they cast their votes for Buchanan horrifying.

Then there are others, less compelling, attorney Henry Handler first and foremost among them. Handler, the County Democratic
Executive Committee chairman from 1984 to 1986, filed the very first lawsuit, on behalf of that chronic man-in-the-middle
Andre Fladell, Delray Beach commissioner Alberta McCarthy, and African-American community activist Lillian Gaines. Handler
did this even though Gore attorney Mitch Berger repeatedly called him and beseeched him not to, arguing that he would end
up hurting Gore’s recount campaign and even a possible butterfly ballot legal challenge down the road. That didn’t matter
to Handler.

Bush lawyer Barry Richard is sitting at his desk in Tallahassee, participating by speakerphone. He says that the judge doesn’t
have the authority to grant a revote, that the venue should be moved to Tallahassee. Even if both of those requests are denied,
Richard says, the court needs to allow a little more time before it all begins, so he can review evidence and depose witnesses
and otherwise do this thing right.

But before Judge Rapp—a Republican appointed by former governor Martinez, nicknamed “Maximum Rapp” for his proclivity for
tough sentences—can even commence, Handler steps forward with two affidavits. He wants Rapp to recuse himself.

According to the affidavits, attorney Joseph Thillman says that on Election Day he overheard Rapp in a courthouse elevator
dissing Hillary Rodham Clinton and saying that he voted to “make sure the Democrats are run out of the White House.” Another
lawyer, Harry Winderman, claims that at 8:20
A.M.
on November 8, he heard Rapp say from the bench that any voter who was confused by the butterfly ballot was “stupid” and
did not deserve the right to vote.

Rapp takes a forty-minute break to consider Handler’s motion. When he returns, he denies the claims but recuses himself. The
case is going to be reassigned to circuit judge Catherine Brunson, he says.

But Brunson will recuse herself because one of the attorneys in the courtroom recently worked for her husband. Judge Edward
Fine will recuse himself because last week one of the attorneys asked his advice in seeking a judge’s recusal. Judge Thomas
Barkdull III will recuse himself because his dad represents Butterworth. Judge Peter Blanc will recuse himself because two
of the lawyers served as treasurers on his reelection campaign. And Chief Judge Colbath will recuse himself—claiming he was
given the case accidentally. Judge Jorge LaBarga will be given the case. But he’s away at lunch.

As he sits at his desk in Tallahassee doing some other work, Richard is somewhat amused as one after another judge recuses
himself. In the coming days, he’ll start to doubt that all those judges had personal involvements that in any other circumstance
would require recusal. Richard will think that their revolving-door recusals may have been motivated by the simple fact that
the butterfly ballot’s a highly charged issue, one that they don’t want to get involved with. A Democrat more partisan than
Richard might add that finding a judge who’d risk displeasing Jeb would be pretty unusual.

The case before Middlebrooks continues.

Tribe offers a lengthy discourse. Providing Florida’s first touch of shameless O.J.-ness, Harvard professor Alan Dershowitz
makes a cameo on behalf of some voter or something. The canvassing boards’ lawyers stand and briefly speak.

“We heard references to the manual recount in Texas,” Olson says. “The Texas provision, which has been mentioned for obvious
reasons, has a list of very specific standards. The ballot may not—and this is in the statute to control the discretion of
the official—the ballot may not be counted unless at least two corners of the chad are detached; light is visible through
the hole; an indentation on the chad in the stylus; etc., etc., I’m not going to go through all of the details with respect
to it. But that is an example of an effort by the state to articulate clearly standards by which individual judgment can be
exercised in very specific limited situations.”

“Boy, that’s disingenuous,” Rogow thinks, surprised, as he hears Olson’s “etc., etc.” He leans over to Tribe and makes a comment
about it. That kind of footwork might be common in politics, but it’s not supposed to be that way in law.

Rogow’s right; it’s one of the more dishonest bits of lawyering in a scandal with more than its share coming full tilt from
every side. The
provisions Olson’s leaving out are the full sentence of (3) which is “an indentation on the chad from the stylus or other
object is present and indicates a clearly ascertainable intent of the voter to vote.” And, most notably, the big one Olson
is just too busy to mention is Texas’s fourth possible way to assess that an incompletely punched ballot is a vote, that “(4)
the chad reflects by other means a clearly ascertainable intent of the voter to vote.”

In other words, essentially the same subjective standard that Florida has as well. But Ted Olson isn’t going to let anyone
know this. And the Democrats don’t have a rebuttal, so nobody can correct him.

Warren Christopher is perpetually dour. But when he emerges from Katherine Harris’s office Monday morning, he looks like he’s
been sucking on an extra-strength lemon. He reports that Harris plans on certifying the election, as mandated that she “may”
do if she so chooses, tomorrow, Tuesday, at 5
P.M.
He’s one big tsk-tsk.

Isn’t she just following the law? he is asked.

“We believe not,” says Christopher. “We think it is arbitrary and unreasonable. She has discretion under the statute, and
she’s declined to exercise the circumstance, even though it can be exercised, according to her, if there’s a hurricane. Isn’t
it a strange situation where she would exercise discretion in other situations, but not where the presidency of the United
States is at stake?”

Asked to characterize the meeting, Christopher says that “she said that the local boards have to certify by five o’clock tomorrow.
So whatever they certify is what she will count and nothing thereafter.”

This is one pissed-off old man.

Middlebrooks doesn’t take long to slap down Olson and the Bushies.

“The state election scheme is reasonable and nondiscriminatory on its face,” he rules. He says that there’s nothing wrong
with hand recount, that “the manual recount provision is intended to safeguard the integrity and reliability of the electoral
process.” Yes, canvassing board members get to make judgments, but, “while discretionary in its application, the provision
is not wholly standardless. Rather, the central purpose of the scheme, as evidenced by its plain language, is to remedy ‘an
error in the vote tabulation which could affect the outcome of the election.’… In this pursuit, the provision strives to strengthen
rather than dilute the right way to vote by
securing, as near as humanly possible, an accurate and true reflection of the will of the electorate.

“Unless and until each electoral county in the United States uses the exact same automatic tabulation (and even then, there
may be system malfunctions and alike),” Middlebrooks continues, “there will be tabulating discrepancies depending on the method
of tabulation. Rather than a sign of weakness of constitutional injury, some solace can be taken in the fact that no one centralized
body or person can control the tabulation of an entire statewide or national election.” Indeed, the more boards and individuals
involved, Middlebrooks implies, the less likely anyone can steal an election.

“I conclude that the public interest is best served by denying preliminary injunctive relief in this instance….Nowhere can
the public dissemination of truth be more vital than in the election procedures for determining the next presidency.”

“DENIED.”

Middlebrooks has given Olson nothing.