Down & Dirty (51 page)

The justices ask Boies what he thinks of a statewide recount.

“We are not urging that upon the court,” he says. “But certainly that is something that we have indicated that we would accept.
And we believe the court has the power to order that or to order, as the court suggests, a window” for the hand-recount tally
totals to come in.

Carvin is surprised that Boies doesn’t press the case for a statewide count. Boies should say, “We think these three need
to be counted, and
if you want to do all of them after these three are finished, that’s fine, too,” Carvin thinks. After all, certainly if some
counties are recounted, no definitive win can come without
all
of them recounted. Boies must figure the Florida Supreme Court’s already in his pocket, Carvin reasons. But are they not
looking ahead? This is the exact way to get the Supreme Court of the United States involved—which is, of course, the Bush
strategy: the
SCOTUS
will save us! Please, throw me in this briar patch! Carvin thinks.

Boies and the Gorebies, however, are confident that
SCOTUS
won’t rear its head. This is a state issue, they think. The current group of justices in Washington has voted again and again
in favor of states over the federal government. Sure, justices like Scalia, Rehnquist, Kennedy, and O’Connor probably prefer
Bush be president. And Clarence Thomas was nominated to the court by W.’s daddy, so he might feel a little personal loyalty.
And while the Supreme Court’s conservative pro-states’ rights philosophy has frustrated the Democrats again and again, this
time it works to their advantage.

“Mr. Boies, I think your time is up,” Wells says.

I ask Allison, Barry Richard’s wife, when she thinks the court will decide what to do.

“I keep asking my husband, ‘When will the justices rule?’” she says, laughing. “He keeps saying, ‘They’ll rule when they rule.’”

After the arguments, Daley and Christopher say good-bye to Tallahassee. “Those guys are leaving, and they’re not coming back,”
Klain predicts to Hattaway.

Christopher has a sick daughter, and his wife’s best friend has passed away. He’s needed in Los Angeles for family reasons,
and though he will continue to stay in close contact with the team—especially with his colleague Mark Steinberg, who stays
behind—when “Chris” leaves Tallahassee, he leaves.

Daley will return once more, but he, too, decides that his presence is better served elsewhere. He flies to D.C., shoring
up support on Capitol Hill, hanging with Gore, keeping the operation running from Gore’s home at NavObs, which some are now
calling “the Bunker.” He needs to keep the Hill in line, he needs to be where the political action is, near Gore. And frankly,
with all the bashing of his dad, he’s not sure that he’s helping by being the public face of Gore’s deal down here. Boies
and Klain seem to have everything under control.

Baker, however, will remain in Tallahassee, the nucleus of the Bush atom. He has a job to finish. When Bush is crowned, then
he’ll leave. But not before then.

In Plantation and West Palm Beach, the tedium continues.

In downtown Miami, the tedium begins.

Elections Supervisor Leahy announces the plan, which is similar to that of the other two counties: more than fifty counters
at twenty-five tables on the eighteenth floor of the County Building. They can be done by December 1, with Thanksgiving off,
Leahy says.

The Miami-Dade canvassing board, however, has seen the havoc wreaked on the other two counts by observers objecting to unobjectionable
ballots. For that reason, Leahy assumes that the 10,750 undervotes will be questionable by definition, and he begins to separate
them on Sunday so the canvassing board can check them out. Additionally, Leahy, with the board’s approval, gives the Miami-Dade
counters very different instructions when it comes to the observers. The counters are instructed to not show each ballot to
the observers. They’ll put any questionable ballots in separate piles, and stack the other ballots in Gore or Bush piles.
Once those Gore or Bush piles are an inch thick, the counters can hold them up as a pile for the observers to inspect. If
the holes are clearly punched—and the observers can peer all the way through the aligned Gore or Bush holes—then the assumption
will be that there are no problems with those ballots.

“We’re going to run an orderly ship,” Judge King says. “I do not expect observers to be arguing or putting into this process
their personal opinion.”

The Bushies have a real presence outside the county building. I’m somewhat familiar with New York congressman John Sweeney.
A statesman he ain’t. As soon as he was elected in 1998, he made a beeline for the National Republican Congressional Committee,
where he quickly made a name for himself by being one of his class’s most aggressive fund-raisers. Totally part of the problem.
And, of course, here he is today, claiming that “Miami-Dade has become ground zero for producing a manufactured vote.”

I also know Sweeney’s colleague, Rep. Rob Portman, R-Ohio. He’s a gentleman and a good guy. He, of course, has a slightly
different tone, if the same fundamental message.“We’re here this morning because we’re deeply
troubled by what we see unfolding in Miami-Dade County,” Portman says. “At the very least, if there’s going to be another
recount, there needs to be clear guidelines. The eyes of the world are on Florida and Miami-Dade County, and they don’t like
what they see.”

The Bush campaign has sent out e-mails and made phone calls and relocated its advance staffers to Florida to create the illusion
of outraged voters. These professional Bush staffers have been shipped in to whip up locals into a frenzy. And Republican
activists keep coming, their room, board, and travel paid for by the Bush recount fund. They’re directed to Miami-Dade specifically,
since Mehlman and others are concerned about the mystery of what might lie on those 10,750 undervotes. And once they’ve gotten
to Miami-Dade, they’re supposed to cause a ruckus. Which they’re more than happy to do.

Thus, outside, it’s getting tense.

Inside, too.

One of the lions of integrity guarding the process for Bush is GOP observer Grant Lally. Lally’s a two-time losing congressional
candidate who in 1998 received one of the largest penalties ever meted out by the Federal Elections Commission—$280,000—for
receiving more than $300,000 in illegal campaign contributions from his parents for his 1994 primary and general election
campaigns, and then lying about it.

Lally decides to pick a fight with Ivy Korman, administrator of the elections department. He calls her “hostile” and tries
to get her kicked out of the room. Both Lally and Korman are allowed to remain, but King’s patience is starting to wear thin.
De Grandy is objecting like crazy, which is fine; it’s the observers who are talking and keeping the process from proceeding
in an orderly manner.

Working with fellow Democratic observer Steve Kaufman—an L.A. attorney who does a lot of election law—Young notices something
interesting about the Miami-Dade ballots. There are a whole bunch where the chad has clearly been punched out—nothing hanging,
nothing dimpled—but the chad has been punched out for a nonexistent candidate. Kaufman and Young have an explanation, and
using a sample ballot they demonstrate the theory to Leahy.

There is, they point out, no candidate’s name next to chad no. 5. But if you put the paper ballot on top of the plastic booklet
of candidates that rests on the breadbox-size Votomatic instead of in the slot under the plastic booklet, then the no. 5 is
the chad next to Bush’s name, which is actually in
the no. 4 slot. Same for all those no. 7 votes—Young and Kaufman tell Leahy that those must be actually for Gore, whose chad
is actually designated no. 6.

Once the canvassing board has been through the rest of the 10,750 undervotes, they’ll come back and look at the 5’s and 7’s,
Leahy says.

Judge Jorge LaBarga seems genuinely anguished as he walks into his Palm Beach County courtroom to rule on the butterfly ballot
plaintiffs’ call for a revote.

“Clearly, a great number of patriotic and deeply concerned citizens of Palm Beach County fear that they may have unwittingly
cast their vote for someone other than their candidate,” LaBarga rules. “While some may dismiss such concerns without a second
thought”—
Hmmm. Whom do you think he’s talking about?
—“this court is well aware that the right to vote is as precious as life itself to those who have been victimized by the horror
of war, to those whose not-too-distant relatives were prohibited from exercising the right to vote simply because of their
race or gender, and to those who have risked it all by venturing across an unforgiving sea in makeshift rafts or boats.

“However”—and you knew there was a “however” coming—“for over two centuries we have agreed to a Constitution and to live by
the law.”

Yes, there have been overturned elections and revotes in Florida before, LaBarga notes. The Carollo-Suarez mayor’s race in
’97. A Polk County commissioner’s race in ’96. A 1978 Liberty County school board race. A 1979 Wakulla County race for county
judge. The 1972 Democratic primary race for sheriff of Columbia County. And yes, there have been races in other states—Delahunt,
a ’93 Pennsylvania race for state senate, a ’97 state assembly race in Jersey. But “the plaintiffs in this action cite not
case law authority in the history of our nation, nor can the court find any, where a revote or new election was permitted
in a presidential race.” The law is clear that “presidential elections must be held on the same day throughout the Unites
States.”

So: tough luck.