Down & Dirty (33 page)

Over the weekend, circuit court judge Terry Lewis was playing tennis with a pal—an active Republican, a former candidate himself—who
just happened to ask Lewis if he thought any of the various election court cases were going to end up in his courtroom.

“I doubt it,” Lewis said. It looked like things were going to stay in the South of Florida, butterfly ballot in Palm Beach,
federal case in Middlebrooks’s Miami court.

Lewis isn’t thinking about any of that Monday as he listens to testimony in a case where a woman is suing her daughter for
allegedly bilking her savings account. Suddenly Doug Smith—a Leon County public information officer—is in the back of the
courtroom motioning for him.

Lewis beckons him to the bench.

Smith hands him a copy of a brief filed Sunday:
Canvassing Board of Volusia County v. Katherine Harris and the Elections Canvassing Commission.

But even this the unflappable Lewis doesn’t think much of. It’s just an action for declaratory judgment and injunctive relief—basically
a request that Lewis make Harris accept their vote tally even if it comes after the 5:00
P.M.
deadline. Shoot, he’ll be back on the tennis court in no time.

Shortly after noon, Judge McDermott, the Republican chair of the Volusia County canvassing board, calls a press conference.

“I think it’s reasonable,” he says, “to assume that we should have a definitive and official certification of all the ballots
by midday tomorrow, Tuesday, OK?”

Nevertheless, McDermott announces that as an insurance policy the Volusia County canvassing board is suing Clay Roberts and
Katherine Harris for the purposes of “seeking a court order for an extension for the deadline, just in case. That has been
filed.” The hearing will be today at 1:00
P.M.
“The reason we have filed the suit is, one never knows what problems may come up,” he explains. “We’ve had some surprises—most
of them unpleasant—in connection with what we’ve done so far, and you’re aware of those surprises. The additional three hundred
twenty ballots, that was at least a ten on the Richter scale, as far as I was concerned. So, you know, Lord knows what other
surprises or problems are waiting there for us.”

A journalist asks, “Judge, does the recovery of the three hundred twenty lost votes justify in your mind a hand count?”

“Oh, absolutely,” says the Republican. “Yes, absolutely. I was disappointed that this came to light, but, you know—and just
as a matter of principle, it was the right thing to do, just for those of us here at Volusia County, but especially in view
of the fact that we’re dealing with the race for president of the United States and everything that entails.

“The people of the United States and—it’s interesting, the polls that have been taken of ordinary citizens, the vast majority—I
think it’s about seventy-five percent or perhaps even more of ordinary citizens are saying, ‘Look, we’re as frustrated as
everybody else is about not knowing the results, but it’s important that all these canvassing boards and other authorities
throughout the various states, chiefly Florida, of course, do it right.’”

The Gore people have decided to join with Volusia County. Hattaway’s on the phone with a reporter who’s asking him about it,
something about a hearing at 1
P.M.
He turns to Jeremy Bash, ace cub lawyer. “What’s this about a hearing at one o’clock today? Something about Volusia County?”

“I think that’s tomorrow,” Bash says. “Tuesday.”

“Well, I’ve got a reporter on the phone here who says it’s today.”

Bash goes out to the hallway, where he runs into Mitchell Berger, his Tallahassee law partner John Newton, and—straight from
central casting, missing only his mint julep—aged, white-haired Democratic éminence grise and barrister Dexter Douglass.

“Is the hearing today?” Bash asks.

“No, it’s tomorrow,” Berger says.

“I think it’s today,” Bash disagrees. “Check it out.”

Newton calls the court clerk. The hearing is today, in half an hour. Their brief isn’t ready. Berger, Newton, and Douglass
rush over. The plan is to ask the judge for a continuance.

But once they get there, Lewis says no. Debbie Kearney is there for Harris; Barry Richard is there for Bush, who has enjoined
on the other side. So Douglass simply plunges in with his argument, using his folksy North Florida charm. The legal arguments
aren’t crisp, aren’t quite fully formed. How could they be? Douglass just joined the team a matter of minutes ago.

There are two conflicting statutes here, about whether Harris is obligated to reject late vote tallies or not.

101.111 (1) reads:
“If the county returns are not received by the Department of State by 5
P.M
. on the seventh day following an election, all missing counties
shall
be ignored and the results shown by the returns on file
shall
be certified.”

However, states Florida statute 102.112 (1),
“If the returns are not received by the department by the time specified, such returns
may
be ignored and the results on file at that time
may
be certified by the department.”
(Emphases added.)

Now we all know what President Clinton, Parser-in-Chief, was referring to when he said the fate of the free world came down
to what the definition of the word “is” is. But Harris and her attorneys have asserted that late returns
may
be allowable only in case of natural disasters. About this, Douglass goes full folk.

“Let me tell you, this is not only a hurricane, this is a bark-splitting North Florida cyclone with a hurricane tailing on
the end of it. It’s one that rips across the entire country. It winds its way all over the country and all over the world.”

Richard, of course, disagrees. “There has been no compelling reason to order the secretary of state to do something by law
she is not obligated to do,” Richard says.

“How do you reconcile this statute that seems to provide a manual count if you can’t get done within the time period?” Lewis
asks.

“It is not our place to question the wisdom of the legislature,” Richard responds.

Lewis listens to the arguments. The question for him is not so much whether the preliminary certification must take place
at 5:00
P.M.
tonight. It must; the statute seems clear on that. So Volusia County is screwed, temporarily, at least—they still have the
contest phase to work within, if they so choose.

What is up for debate is whether Harris is required by law to ignore any returns that come in after the deadline. In other
words, is Harris
required
by law to screw the canvassing boards that want to recount their ballots? Or is it something she
can
do but doesn’t have to?

Harris’s attorney, Kearney, concedes that the more recent statute—the “may” statute—is the applicable one. Fine, Lewis thinks.
So she does have discretion. Then why is she refusing to even listen to their reasons? Why is she telling the canvassing boards
that it doesn’t matter what reason they cite, she’s not taking any late ballots? That doesn’t seem like the exercise of discretion
to Lewis. Hmm.

State house senior aide Rubottom is angry.

Kearney did nothing to defend the legislature’s law. He doesn’t see any contradictions in the may/shall issue, it’s up to
Harris to accept the returns if she wants.

He calls Kearney; he calls Ginsberg; he calls Jimenez. He tells them all that the legislature is there and eager to insert
itself in this conflict if necessary.

Al Gore finally appears. The nation has only seen him walking here and there, to and fro, playing a rather lame touch-football
game with his family on Friday.

“There’s an awful lot at stake here, and what is at stake is more important than who wins the presidency,” Gore says, trying
his darnedest to seem sincere, but as always falling short. “What is at stake is the integrity of our democracy, making sure
that the will of the American people is expressed and accurately received.

“That is why I have believed from the start that while time is important, it is even more important that every vote is counted
and counted accurately…. And so that’s what I’m focused on, not the contest, but our democracy, to make sure that the process
works the way our founders intended it to work.

“Look,” he says, the human TelePrompTer trying to seem ad-libby. “I would not want to win the presidency by a few votes cast
in error or misinterpreted
or not counted, and I don’t think Governor Bush wants that either.”

Oh, yeah?

“Now, if there’s any saving grace at all to the extra time that this is taking, it is this: Schoolchildren all over the United
States are learning a lot about how a president is chosen in this country. [STAGE DIRECTION: CHUCKLE]

“They’re learning a lot about our democracy. And families are able to make the point without fear of ever again being disputed
that it matters whether or not you vote, and every vote counts. So register and vote and participate in our democracy.”

Ugh.