Down & Dirty (43 page)

Not everyone would agree with Kogan. Barry Richard has already said that the Florida Supreme Court “has no jurisdiction. If
the supreme court should determine that it has jurisdiction, I think it will have to do so by recognizing a source of jurisdiction
that it has never heretofore recognized….The parties cannot confer jurisdiction on the supreme court by compromise or by agreement.
The supreme court’s jurisdiction is clearly set forth in the Florida Constitution and it is very narrow.”

“I have to disagree with him on that point,” Kogan says. “I would think the supreme court can have jurisdiction whenever and
wherever it says it has jurisdiction.”

While I’m talking to Kogan on the phone, I get an e-mail alerting me that the Florida Supreme Court has rejected Harris’s
requests that the hand recounts be stopped, and that the Gorebies’ and Palm Beach County cases be consolidated. The court
will hear arguments on Monday about hand recounts. And: without anyone even asking them to, the seven justices prevent Katherine
Harris from certifying the election tonight or tomorrow or until they say when.

Kogan couldn’t be less surprised.

To give you an idea of how competent Floridians are in general, you should know that after a heavy rain, there’s a flood in
the parking lot of Palm Beach County’s Emergency Operations Center, which was opened in 1998 and activated for Hurricane Floyd.

LePore has arranged the counting for the command center, which looks like a cross between an amphitheater and a classroom,
five tiers down to the front of the class, seats about 150. The count is finally—finally!—about to start Thursday night at
7:14
P.M.
, but the process is hobbled a tad since there’s a dearth of Republican counters, only enough to form thirteen counting teams
instead of the planned thirty.

Wallace wanders through the room, studying everything, focused. The aisles are packed, so Wallace clears the way for a man
carrying ballot boxes.

“Don’t want to be dropping ballots!” Wallace chortles.

LePore is diligent with the ballots as she hands them out to teams. One counter’s pen is accidentally brandished within striking
distance of a ballot. “Don’t touch it with the pen!” she says excitedly.

“Remember to look on both sides,” Burton says. He reminds them to follow the standard Broward County has adopted—count it
as a ballot if it’s punched through, hanging chad and dimples are to be examined by the canvassing board. “There’s no need
for a debate,” Burton says. “If they say questionable, just put it in there, and we’ll take care of it later.”

Wallace objects. “We are precipitously adopting a standard on the very night we start counting,” he complains.

Burton says to chill. The standard on “questionables” will come later, “when we’re sitting together and your chin is once
again placed on my shoulder.”

In Broward County, GOP delay tactics are pissing off the entire canvassing board, even Republican Jane Carroll. A lawsuit
from four Republican voters forces subpoenas upon all three of them.

They can’t analyze disputed ballots themselves while they’re in court, but Lee deputizes another judge to at least supervise
the larger hand count while the three go trudging off from the Emergency Operations Center in Plantation to Judge Leonard
Stafford’s courtroom in downtown Fort Lauderdale, half an hour away. When they arrive, Stafford tells them they can go back.

On their drives back to Plantation, Gunzburger and Carroll receive word via cell phones that Stafford had ordered them to
return to the courtroom.

Lee doesn’t have a cell phone, so he gets no such notice. Which is just as well, because when Carroll and Gunzburger return
to Stafford’s courtroom, it turns out that he hadn’t ordered them back at all. Carroll’s attorney, Sam Gorman, finds out that
the attorney who spread the word that Judge Stafford wanted them back is a member of the law firm run by local GOP bigwig
attorney William Scherer. Scherer has certainly been on the Bush program of stalling the count before, in arguments before
the board. But this is something else entirely—Gorman, livid, wants to initiate disciplinary proceedings against the Scherer
attorney before the Florida Bar for misrepresenting a judicial order.

But Lee knows her and is sure that it was an honest mistake, and he talks Gorman down.

On Friday, the count continues much as it did on Day One. Only this time, there are twenty-six teams of four, Republican counters
having shown up in greater numbers.

Outside, Republicans like Eskew are claiming that it’s chaos in the EOC, that chad are flying in a ballot bacchanal. “Mind
reading is no way to decide the presidency—and neither is a stacked political deck,” he says.

But neither of the sort is going on. No one’s reading minds—they’re assessing ballots, just as is done in Texas. And Burton
and LePore are doing everything they can to be impartial—even Roberts seems a tad cowed. Burton thinks the GOP attempt to
have her recused has shaken her into more of a semi-neutral stance.

But Eskew wants the process discredited, so, as he did in South Carolina, unable to compete using the truth, he will look
elsewhere for ammo.

The most unfortunate incident of all comes at around 1
A.M.
Thursday morning, when a senior citizen counter drops some ballots on the floor. Sheriff’s deputies and police officers move
in to make sure no one touches them.
Swarm! Swarm!
An observer seated behind the counters lifts her feet so they don’t touch the ballots—though one deputy will later tell Burton
that at least one ballot touched her foot. An observer will later estimate that it was only about five or six ballots that
fell; Tucker Eskew will tell the press that it was twenty.

The canvassing board discusses which pile the ballots belong in.“For the integrity of the process, you must recount this entire
precinct,” Wallace says. Burton agrees. Lock ’em up and start the precinct again in the morning, he says.

On Friday, November 17, as Broward County goes through a similar experience—the tedium of counting, the objections of Democrats
to ballots not being counted as votes and of Republicans to other ballots being counted—the canvassing board in Miami-Dade
County meets to decide if they want a similar fate.

Coffey points to legal rulings and decisions by other counties’ canvassing boards that have gone their way. Martinez says
that Al Gore, having lost the election in the polling place, is now trying to win it through aggressive litigation. “You have
shown great courage in applying the rule of law, Mr. Leahy, Judge Lehr, Judge King—I know you and I disagree. Nevertheless,
I respect you. I’m not going to push you. But you’re being pushed now. What I ask you at this point in time is that you stick
to your conviction, Mr. Leahy, Judge Lehr.”

Not the right thing to say to Lehr.

“Nobody has pushed me,” she says. “Mr. Coffey has made a point, and I will agree with him, that events are exploding upon
us… I do not operate in a vacuum.”

The board votes unanimously to listen to the Democratic arguments. Zack argues that the canvassing board is “not a court of
law. If you are anything, you are a court of equity. You’re supposed to do what’s right and fair.

“You know, one of the least important things that we do is watch
Monday Night Football,
” Zack goes on. “One of the most important things that we do is elect a president of the United States….On
Monday Night Football,
we allow an instant replay when we’re tired, when we’re exhausted. We just want to turn off the TV and let the Dolphins or
the Jets win, and go to sleep.

“But we say, no, we as Americans have a fundamental sense of fairness. And we say, if there is a better method, we have to
use it. And you know the video camera isn’t what decides what happened—it requires the decision, thank God, of a human being
looking at what happened in the best possible way—slow motion, if you will. I will say slow motion is a hand count.”

Coffey talks about Broward, how that county is doing right by its voters. “Can we say no because we’re too busy? It’s too
much hassle? Of course not.”

When De Grandy speaks, he mocks Zack and Coffey’s appeals to the emotions of the board. “Let me tell you first what I did
not hear, and then let’s talk about what we know. What I did not hear was any recitation of facts or law that would justify
reconsideration….What I did not hear is any compelling new evidence…. I am going to make you one promise. I promise you that
Mr. Martinez and I are not going to ask you how you feel, are not going to probe your emotions.”

“We’ll try not to do the same, Mr. De Grandy,” King quips.

During De Grandy and Martinez’s presentation, Zack interrupts. “I never believed in Della Street coming in and talking to
Perry Mason, but actually we just got confirmation that the supreme court has just blocked Katherine Harris from certifying
results.”

“Might I ask a point of order and a point of privilege?” Martinez asks. “And that is that if Mr. Perry Mason and Della Street
would just keep it quiet a little bit.”

The arguments go on. But soon enough, King calls for a vote. And unlike last time, this time he votes first. “I’ll vote yes
in concurrence with the
recount of all ballots in Dade County by hand,” he says. “And this time, I’ll ask Judge Lehr, if you would be so kind to make
your vote.”

Martinez is suspicious. Lehr seems to him to be the most vacillating member of the board, the most impressionable. Last time
Leahy voted first, and she just followed him. Will she do the same here and follow King?

“I, too, am going to concur with you, Judge King,” Lehr says. “I believe that the people of Dade County are entitled to have
their votes counted…. You read the papers, and you listen to the television, and the news—a lot has been happening. And I
have taken a lot of what has been happening into consideration,” most recently the supreme court stay of the certification,
she says.

Leahy says that the way he interprets the law, manual recounts are only for when there are errors in vote tabulation. He’s
a no.

The recount is on.

Martinez is stunned. They’re disregarding the rule of law, he thinks. Furious, he returns to the Greenberg Traurig offices,
where his team is working, and it’s decided that Miguel De Grandy will deal with the canvassing board from now on, while Martinez
will set his sights on what happens in the courts. “I don’t want to go back there,” Martinez says about the canvassing board.
“There’s no need for me to go back there. I want to focus my efforts on the courts. And I don’t want to go back there.”