Down & Dirty (50 page)

Trevor’s friend from high school and Florida State, Frank Mayernick, twenty-four, a law student at FSU’s College of Law, suddenly
appears with doughnuts and coffee, which he and Trevor offer to everyone in the surrounding area. In front of Trevor and Frank
is state senator Skip Campbell, an Orlando Democrat, with a couple of attractive female senate staffers.

With much of the line consisting of reporter types like me and professional pols like Campbell, Trevor and Frank soon become
very popular among the reporters. They’re real people, after all. “Are you guys the students?” a Bloomberg Business News reporter
asks, pouncing. Trevor is interviewed by Bloomberg, NBC News, and
USA Today
. Frank gets Bloomberg and Orlando’s ABC affiliate; he tells the
USA Today
scribe that “This is a circus,” and it is noted how much better a sound bite that was than Trevor’s more earnest and ponderous
utterings. Soon a correspondent from Spanish-language channel Univision comes over and asks if anyone speaks Spanish.

“How do you say ‘This is a circus’ in Spanish?” I ask him.

“Es un circo,” he says.

Frank tries it out. His accent sucks, though. The Univision correspondent turns his attention to the sweet young state senate
staffers in front of us. Within minutes, Mr. Univision gets a phone number.

By noon about 175 have joined the line. Including a bunch of professional Republicans who have blatantly cut in line right
behind me, RNC counsel Ginsberg, Florida state GOP chair Al Cardenas, others. In front of us, state senators Jim Scott, a
Democrat, and Tom Lee, a Republican, also violate the “no cutsies” rule.

On the sidewalk right in front of the supreme court building, Baker exits an SUV like he’s at the Oscars. A smattering of
applause follows. Ginsberg, his hair particularly neon in the Florida sun, scampers after him.

Cardenas spots GOP power attorney Ted Olson about fifteen places behind him in line. “I got all those positive vibes right
here,” Cardenas says in his thick Cuban accent.

I have now officially been in line for four hours and forty-five minutes.

Finally we get in.

The supreme courtroom has a high ceiling. A large bench stands up front, the seven justices’ names all writ out, but other
than that, we could be in a small chapel. Frank, Trevor, Alyson, and I debate whether a certain TV correspondent is wearing
a rug. You’d never know it unless you saw him from the back, where what looks like a toupé plops over the thin scraps of real
hair poking out from underneath, like fringes on an Oriental carpet.

We’re still debating its legitimacy when the correspondent scratches his head, and the whole deal moves like a tablecloth.

Hair still on my mind, I make a joke that Barry Richard’s immense gray pompadour makes him look like he plays the sax for
Billy Joel. When
Richard comes over to my row, I realize that I am sitting next to his wife, Allison. “Look how handsome you look!” she says
to him. We look to the left and stare at Christopher, who appears embalmed.

Agriculture commissioner Crawford and elections head Roberts walk in and take front-row seats. Then the court marshal and
another courtroom employee walk in and out of the justices’ chambers, putting folders and stacks of papers before the appropriate
justices’ chairs. The marshal then steps down from the dais, looks down, takes a breath, and then proceeds to bellow: “PLEASE
RISE! Hear ye, hear ye, hear ye, the supreme court of the great state of Florida is now in session!”

The seven robe-clad justices spill out onto the bench one by one. The chief justice settles first into his chair in the center,
followed by the justice who sits to his immediate right, then the justice who sits to his immediate left, and so on, right,
left, right, left—a well-choreographed presentation.

Seated, left to right, they are two old white men (Fred Lewis and Harry Lee Anstead), one old black man (Leander Shaw), the
old white chief justice (Charles Wells), another old white man (Major Harding), with two stately middle-aged women—one white
(Barbara Pariente) and one black (Peggy Quince)—rounding it out on the right.

Before they moved to Tallahassee upon their appointments, Anstead and Pariente were from Palm Beach (!!!)—a fact that right-wing-conspiracy
theorists outside the courtroom are already citing, anticipating that not only will the largely Democrat-appointed court fulfill
their liberal-activist stereotype, but somehow they’ll show geographic bias.

Being a supreme court justice is a good gig. You can interrupt lawyers in mid-bullshit and tell them to fast-forward to the
relevant part. You can challenge their misrepresentations and glib evasions with disdain and impatience. And instead of your
impudent actions resulting in an immediate end to a press conference and a lifelong kibosh on obtaining interviews, the shysters
treat you with deference, bowing and genuflecting and calling you “Your Honor.”

Which is what happens here. In fact, Chief Justice Charles Wells begins the proceedings by preemptively telling the attorneys
to cut to the chase. “Since we have a limited amount of time here, we would ask that we get right to the heart of the matter
as you see it, because we are fully cognizant of the facts and the procedures of below that have brought you here.” Wells
isn’t screwing around. He even tells the rest of us when our bathroom break will be.

Despite that warning, Paul Hancock, representing Butterworth, commences with a bucket of rhetoric.

“The court has previously referred to the attorney general as ‘the people’s attorney,’” Hancock says. “I stand here on behalf
of the attorney general in that capacity….The right to vote is perhaps the most cherished right in our democracy. The real
parties and interests in this lawsuit are not the presidential candidates, nor the parties that support them—”

“Mr. Hancock, excuse me for interrupting,” Wells says. “I would really like counsel on both sides to pay attention to a concern
of mine.” That concern is to figure out how to resolve this mess.“It seems from my reading that we have a continuum from November
seventh to some point in December,” Wells explains. “And that’s when my concern is, and so I’d like to sort of get this hammered
down to that framework.”

Great, thinks Bush attorney Michael Carvin. They’ve already decided that we lost the argument about whether November 14 was
the certification deadline. Usually they let you debate the matter a bit first.

“What’s the date, the outside date that we’re looking at and which puts Florida’s votes in jeopardy?” Wells asks Hancock.

“December twelfth, Your Honor, is my understanding,” Hancock says. “The electoral college meets on December eighteenth.” December
12 is the “safe harbor” day on which the Florida legislature can meet and elect its electors if it so chooses, if it fears
that the state’s electors will be in jeopardy if they don’t.

Carvin had come prepared to argue in favor of December 12 as the deadline, anticipating that Hancock and Boies would give
the outside date, December 18. He’s pleased that Hancock has made this point for him.

And Carvin’s good luck continues, as Wells asks Boies the same question. Hancock said the deadline for all of this is December
12. “Do you agree with that?”

“I do, Your Honor,” Boies says. After all, December 12 is years away.
Years.
This thing isn’t going to last that long. Boies is confident that he’ll successfully argue for an extension of the deadline,
the hand recounts will go on, and he’ll go home, just like that. Why argue with a supreme court justice over six days in December?

Carvin implores the high court not to accept a hand recount. But the court is well aware that Florida law—not to mention Texas
law—finds such recounts not only legal but, at least in Texas, preferable to a machine recount. As Boies argues, “I cannot
imagine how the [Florida] legislature
could provide for these manual recounts and yet have those recounts be an illusory right.”

“Does the secretary… play any role in determining whether or not there shall be a manual recount in any county?” a bulldog-faced
Justice Harry Lee Anstead asks Joe Klock. Klock is reputed to be a brilliant legal strategist, a font of ideas, but in a courtroom
he can be bumbling and clumsy and even a bit obnoxious. Or maybe it’s just that the actions of his client are tough to defend.

“Absolutely not, sir,” admits Klock.

“And so, who has the authority and responsibility for that?”Anstead asks.

“The canvassing board of the county,” Klock says.

“Well, under the circumstances that we have here, then, isn’t in essence the secretary of state, who has no authority to determine
that, overruling a decision by the proper body that has the authority to do that?”

“To the contrary—”

“Isn’t that what the net effect of this is?”

“To the contrary, Justice Anstead—”

“Well, if the secretary is saying, ‘I’m not going to count the recount that started very late in the process,’ and at a time
in a large county where effectively the recount could not be completed before the seven days were up, isn’t that the net effect?”

“Justice,” Klock says, “I don’t know that the recount couldn’t be done in that period of time. And of course we have no trial
record to know whether the recount could be done in that time.”

“Don’t we also end up sort of discriminating between small counties and large counties?” Anstead asks. “If we take Dade County,
for instance, and Okaloosa County, clearly there is going to be a vast difference in the time that it takes in Dade County
to do that manual recount compared to a small county. Would you agree?”

“Justice Anstead, yes,” Klock says.

Amazing—Harris has done everything she can outside this courtroom to stop the hand recounts, but here today Klock is admitting
that it was up to the canvassing boards the whole time.

Anstead presents a hypothetical anecdote that further undermines Harris’s justification for discarding three counties’ manual
recounts. Harris, he poses, based her trashing of the recounted numbers on the statutory deadline for certifying the votes
seven days after the election—a position she has clung to like Linus to his security blanket. But what if the members of
the Miami canvassing board were to “go off to the islands” for a week instead of completing their vote-counting duties by
the seven-day deadline? Anstead asks. Would Harris simply not accept their votes? Is the seven-day deadline absolute?

“Of course it’s not absolute,” Klock finally allows.

Democrats are also peppered with questions about their more dubious claims and actions. Attorney Andrew Meyers, representing
Broward County—which decided on Sunday to start considering the unpenetrated “pregnant”- and “dimpled”-chad ballots along
with the others—is asked by Leander Shaw whether this wasn’t “unusual, changing rules in the middle of the game.” Meyers says
that “the important thing is that we do what’s right at the end.” How to read the ballots has been an “evolving area.”

But the larger problem for Gore and his lawyer friends isn’t dimples but resolving how the justices could allow the hand recounts
without blatantly violating the Florida law that mandates last Tuesday’s certification deadline. What can be done? The Democrats’
attorneys are asked repeatedly for suggestions as to how they think the court could rule to keep everything within the parameters
of the existing law. But they don’t provide many answers. “There is some information in the record,” says Boies, “but to be
completely candid with the court, I believe there is going to have to be a lot of judgment applied by the court as well.”

The debate returns to accuracy issues: “Is it the manual-recount process that’s inherently flawed?” Pariente asks. “Isn’t
that the exact process that is set forth by—as has been represented to us, as the statutes reveal—in Texas law, for this exact
process to take place where there’s manual recounts? And that those are preferred over the machine recounts?”

“I really don’t know what Texas law is,” Carvin says. Of course he knows full well what Texas law is, but he doesn’t think
there’s any sense in talking about a law from another state. From Carvin’s point of view, the Florida Supreme Court is just
not going to rule in their favor. As Baker puts it to him during the brief bathroom break: “Just answer the questions, and
we’ll get out of here.”

Still, Carvin isn’t ready to completely give up, and he tries a little subliminal strategy. He keeps arguing home the point
that the Florida Supreme Court has to abide by a provision of the federal election code—United States Code, Title 3, Section
5—that generally prohibits states from appointing electors according to any rules made
after
the election. The law dates back to 1887, in the wake of the disputed Hayes-Tilden election of
1876;
^*
the U.S. Supreme Court has never ruled on it one way or another. Carvin knows that if the court abides by 3 U.S.C. 5, it
will set the stage for the Bushies to complain to the Supreme Court of the United States about equal protection violations
down the road if the Florida court goes ahead and orders the recount. He has a 108-year-old U.S. Supreme Court precedent at
hand—
McPherson v. Blacker,
in which the
SCOTUS
ruled that the U.S. Constitution “leaves it to the legislature exclusively to define the method” by which each state’s electors
are chosen. But Carvin has no intention of telling them about this case, no intention of warning them of the argument that
he, Olson, and the rest will make before the
SCOTUS
if the Florida Supreme Court extends the certification deadline. It’s something of a trap, and Carvin is only too happy to
set it.
^†