Down & Dirty (53 page)

The ruling isn’t a total win for the Gore team, however, begging off as it does on opportunities to set a statewide standard.“We
declined to rule more expansively, for to do so would result in this Court substantially rewriting”
election code, the court writes. But the court does offer a strong push in the direction of permissiveness, citing the Illinois
Supreme Court’s
Pullen
decision,
^*
which ruled:

The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These
voters should not be disenfranchised where their intent may be ascertained with reasonable certainty, simply because the chad
they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election
authorities, for failing to provide properly perforated paper, or it may be the result of the voter’s disability or inadvertence.
Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should
be given effect.

And as if that weren’t enough, the court goes so far as to offer specific deft slams to claims made by many in
la famille Bush,
ruling against Harris’s interpretation that hand recounts can be acceptable only when there is “error in the vote tabulation,”
which she deemed meant error in the vote tabulation
system
. She said that such a standard “only means a counting error resulting from incorrect election parameters or an error in the
vote tabulating software,” the court wrote. “We disagree.”

Flushed down the Florida toilet, at least for now, goes Baker’s—and indeed, the entire Bush camp’s—assertion that machine
recounts are preferable to hand recounts, since the latter is subject to “mischief” and “subjectivity”: “Although error cannot
be completely eliminated in any tabulation of the ballots,” the court wrote, “our society has not yet gone so
far as to place blind faith in machines. In almost all endeavors, including elections, humans routinely correct the errors
of machines. For this very reason Florida law provides a human check.”

Most important, however, is the court’s adherence to the first line in the state constitution: “All political power is inherent
in the people.” Harris could ignore this only under two circumstances, the court rules: if rejecting the recount would have
prevented a candidate, party, or voter from contesting an election certification, or if somehow it prevented “Florida voters
from participating fully in the federal electoral process.” “But to allow the Secretary to summarily disenfranchise innocent
electors in an effort to punish dilatory” counties who didn’t get their returns in on time “misses the constitutional mark,”
the court concludes.

Gore, of course, still will have to fend off other litigation from Bush and his lawyers challenging this ruling, as well as
challenges to the liberal chad rules he wants and God knows what else. Plus, of course, he still has the little matter of
earning more votes than Bush has. But in a state with a governor named Bush, a secretary of state who might as well be named
Bush, a Republican house and senate, as well as a daunting number of Democratic voters who can’t figure out how to competently
vote, Gore finally catches a break in Tallahassee.

Judge Terry Lewis knows the Florida Supreme Court pretty well, and he thinks well of them, too. Justice Harding’s in his Rotary
Club, and Justice Wells used to play b-ball with the other judges and lawyers on occasion; Anstead still plays every now and
then. Like any good appellate judge, Lewis jokes, if you give Anstead the ball, he gives it right back to you.

That said, Lewis sure is confused about this ruling, which overturned the decision he made last Thursday.

Harding said it himself during the oral arguments—where are we supposed to come up with a new date, with a new scheme? “Are
we just going to reach up for some inspiration and put it down on paper?” the justice had asked. Exactly the point, Lewis
thinks. Where did this November 26 date come from?

Maybe he should have made his second ruling a little bit more detailed, he wonders. There
is
a contest provision. If a candidate thinks he’s got evidence of legal votes that haven’t been counted, that’s grounds for
a contest.

Why are the Gore lawyers resisting that so much? Lewis asks himself. He doesn’t have an answer.

Nor does Dexter Douglass, for that matter, who behind the scenes is also urging Klain and the others to accept the certification
deadline and move ahead to the contest period. But the PR hit would be too much, he’s told. Douglass says that he doesn’t
think in terms of a PR hit, and what would it matter if Gore wins? The nation will embrace him no matter if he wins a “protest”
or a “contest,” no one much cares. But he’s overruled. Douglass begins to think that no one on the Gore team is really all
that interested in his unsolicited opinions on anything.

The counting goes on in the counties, as if nothing happens.

In Palm Beach at 9:42
P.M
., county administrator Robert Weisman takes the microphone to tell the room that the Florida Supreme Court announcement is
coming, and they will put it up on the big TV screen at the front of the room.

As a perfect symbol of Palm Beach efficiency, the technicians tune to CNN but can’t punch up any sound. Nobody knows what
the ruling is until after the announcement has been read by court spokesman Craig Waters and the headline comes on the screen:
“Supreme Court rules the recounts must be counted.”

In the counting room, at least, there is no reaction.

By the time the clock strikes midnight, the world hears responses from Gore, Douglass and Boies, and Baker.

Gore’s statement, made from Washington, is all about looking presidential and above the fray. “I don’t know what these ballots
will show,” he says. “I don’t know whether Governor Bush or I will prevail. But we do know that our democracy is the winner
tonight.”

Why does he say things like this? Has no one told him that he sounds as sincere as Eddie Haskell when he waxes lofty?

Gore also tosses out, once again, his offer to meet with Bush—knowing that Bush will never agree to do it and that every time
he makes the offer and Bush rejects it, the Texas governor looks like a spoiled brat.

Back in Tallahassee, Douglass and Boies appear in the state senate hearing room that the press corps has commandeered.

“The supreme court has done what we asked it to do,” Boies says.

Beyond just gloating, however, Boies tries to signal across the state that Broward and Miami-Dade counties were conducting
their hand recounts appropriately—using the broadest definition of what stage of chad is
acceptable—while Palm Beach County isn’t. Rattling off the page numbers and citing specific footnotes from memory, Boies notes
that the court used the Illinois Supreme Court’s liberal interpretation of which chad are kosher—a citation that he had provided
to them in his brief.

“Many of you may have seen the
Chicago Tribune
article earlier today in which it referred to the fact that under Illinois law, the indented chads, so-called dimpled chads,
are counted under Illinois law. And the
Chicago Tribune
article referred even to the exact Illinois Supreme Court case that the Supreme Court of Florida referred to and relied on
in its decision.
^*

“Any indication of the intent of the voter—that is what counts,” Boies explains. “We would hope that is the standard that
Palm Beach County would promptly employ. In each of those counties it’s terribly important that those votes are counted.”

Asked if the Gore team would support an effort for a statewide hand recount if Bush wanted one, Boies notes that the Bushies
have repeatedly said that they don’t want one, and that the court’s plan doesn’t seem to allow enough time for a statewide
recount. Eventually he sidesteps the question altogether as a hypothetical before any of us realize what he has done.

Lastly comes Baker, at 11:56
P.M
.

Despite the fact that the Republicans, and certainly Baker, had assumed the Florida court would rule against them, Baker and
his crew are livid. They are, after all, the types who are used to getting their way. They’ve been getting their way their
entire lives.

His blood boiling, venom seeping from the corners of his mouth, Baker begins by noting that Monday, Justice Major Harding
asked, “Is it right to change the rules in the middle of the game?” “The Florida Supreme Court and some Democratic county
electoral boards have now decided to do just that,” Baker says. “Florida’s supreme court rewrote the legislature’s statutory
system, assumed the responsibilities of the executive branch, and sidestepped the opinion of the trial court as the finder
of fact. Two weeks after the election, that court has changed the rules and invented a new system for counting the election
results.”

Then, the cue, the foreshadowing of where we go next.

“One should not now be surprised if the Florida legislature seeks to affirm the original rules,” Baker says.

[Clap of thunder, flash of lightning.]

Baker clarifies, when asked, that the Bush campaign isn’t going to “seek relief from the Florida legislature,” just that he
“would not be surprised”—
[Stage direction: Lift arms in air innocently, giving a “Who, me?” look]
—“to see the legislature take some action to get back to the original statutory provisions.” He says that neither he nor Bush
has been in touch with anyone from the Republican-controlled Florida legislature, though he couldn’t vouch for anyone else.

What exactly could the legislature do?

Article II, Section 1 of the U.S. Constitution states that each state may select its presidential electors “in such manner
as the Legislature thereof may direct.” So it is not unforeseeable that the state legislature would take matters into its
own hands and choose the state’s 25 electors, especially if the election results remain subject to legal attack up until the
deadline for selecting electors in December. What Baker doesn’t have to add is that the legislature is controlled by the Republican
Party. We’re going to get Florida’s electoral college votes, Baker’s threatening, whether by stopping the recount or calling
in favors.

And while he has the world’s attention, having floated this unbelievable proposition, Baker slams the very concept of “the
infamous dimpled chad.” He notes the 1990 Palm Beach County standard. Baker says that Boies was incorrect a few minutes earlier
when he said that the Illinois Supreme Court okayed pregnant or dimpled chads, which are still attached to the ballot though
an indentation is visible. “The case wasn’t talking about dimpled chads at all, it talked about hanging chads,” Baker clarifies.

Actually,
Pullen
—which Baker calls by the wrong name from the wrong court—doesn’t take a position on any specific chad one way or the other,
but it does say that undervotes have to be examined to see if voter intent can be ascertained. But at this point, demanding
accuracy from either side is about as silly as demanding, well, demanding someone punch their chad all the way through.