Down & Dirty (54 page)

“All of this is unfair and unacceptable,” Baker says. “It is not fair to change the election laws of Florida by judicial fiat
after the election has been held. It is not fair to change the rules and standards governing the counting or recounting of
votes after it appears that one side has concluded that is the only way to get the votes it needs. It is simply not fair,
ladies and gentlemen, to change the rules either in the middle of the game, or after the game has been played.”

It’s a litany of whining that only a Texan could make sound intimidating. When the Connecticut-born Bush tries it tomorrow—“Make
no mistake, the court rewrote the laws. It changed the rules, and it did so after the election was over”—he doesn’t quite
pull it off with same machismo. And how could he? After all, it’s daddy’s friend who’s running the show down there, bailing
him out, just as it’s been for W. all his life.

T
omorrow’s Thanksgiving, and though some, like DNC spokeswoman Jenny Backus, will feast on wings from the Tallahassee Hooters,
others—like David Boies—are on their way home for a real holiday dinner.

But before he leaves, Boies is asked if his charter plane can make one stop on its way back to Westchester County, New York:
Fort Lauderdale. The Gorebies want him to convince the Broward County canvassing board to ignore Republican entreaties that
their chad standards are too loose. Since Boies’s daughter Caryl lives in Hollywood, Florida, and he wants her to come to
his Thanksgiving feast in Armonk—joining his wife, their two kids, and two other kids from a previous marriage—he’s happy
to make the fly-by.

In his many daily phone conversations with Gore, Klain is always a bit amused, a bit touched, by his boss’s closing line.
“We’re gonna win!” Gore always signs off.“That’s right, sir,” Klain dutifully responds.“No, I mean it,” Gore says. “We’re
gonna win!”

But it isn’t until this morning, Wednesday morning, that Klain thinks that his boss might actually be right. The counting
is going on in all three counties, the Florida Supreme Court has told Harris that she has to accept the tallies, Boies is
off to fend off the GOP attackers in Broward….Maybe they actually
can
win, he thinks.

Not that all the Gorebies are content. In Palm Beach, for instance, the Boston Boys think Burton is disqualifying clear and
legitimate votes. The Palm Beach canvassing board is still using the “two corner” rule, despite the fact that LaBarga told
them not to use any specific rules. There are other controversial calls. Burton vetoes any pinhole-marked chad, though the
Florida Supreme Court Tuesday referred to the
Pullen
case in its ruling, and in
Pullen,
pinholes were considered votes. A ballot is ruled an overvote despite the fact that the voter has apparently written “mistake”
over one hole having also punched the Gore hole. Burton’s argument was that, according to LePore, this was a precinct where
the voter could have obtained a new ballot. “Also,” Burton explained, “there is no evidence who put the writing on the ballot.”
Burton also leads the charge against absentee ballots where voters attempted to correct any mistakenly punched holes with
tape, then punched for the right candidate.

While LePore agrees with this, the Gorebies strenuously object. After all, as a Dem points out, “when the ballot is placed
in the envelope, the voter has to sign. The presumption that he knows that—”

“It could have also been the guy sleeping, and his wife said, ‘I don’t want to vote for that guy,’ and who knows?” Burton
interrupts. “We don’t know. That’s why I’m finding an overvote, and I have been consistent.”

It isn’t the strongest argument, but to Burton it makes sense at a moment when so much else doesn’t. Like his colleagues,
Burton is exhausted and starting to numb. At the beginning, this was hectic but a tad exciting; after all, this was democracy
at stake. They were in the service of their nation’s highest ideals! But it is starting to feel less like a heroic public
service and more like taking both a bullet for Uncle Sam and unfair and undeserved heat for trying to make sense of a bunch
of ill-conceived, poorly written, and completely confounded election laws courtesy of those Einsteins in Tallahassee. The
Boston Boys think that Burton’s purposely working against them. They look at Burton and see a judge trying to curry favor
with Jeb. They view his outbursts against Wallace and Harris as Oscar-worthy performances. Thus, the Florida Democratic Party
files an emergency motion in LaBarga’s Palm Beach courtroom, seeking a clarification of his November 15 order. They drag Burton’s
ass before LaBarga to make him testify as to what he’s doing.

“The ballots we have looked at are of such wide variety of dents and dings and marks,” Burton testifies. “I mean, to be honest
with you, some of us leave scratching our heads: ‘How did this even happen?’ We have attempted to define what the clear intent
of the voter is.”

If the dimple is only for president, they don’t count it.“If on cards where a couple or two or three and four, and we don’t
have any set numbers, are showing indentations or not quite full punches, then we’ve taken the position that that does show
the intent of the voter, in that this person, obviously, had difficulty punching out.” Burton admits that when it came to
automatic inclusion, they did change from one-corner to two-corner, which can be seen as more restrictive. But they only did
that because Broward County had that standard at the time, and they were following Broward’s lead. “And I guess just recently
they’ve gone back, so now they’re going to look at dimples. So to be consistent in this election has been a very difficult
task, to say the least.”

Burton doesn’t say what’s really on his mind about Broward’s change in standards: he thinks it looks bad, it looks like the
Democratic fix is in.

“Some [ballots] are questionable,” Burton concludes. “Some are close. Some we need to look at. Some we need to see what’s
going on. I mean, in all candor, determining intent from a ballot card is impossible. Would I like for Judge LaBarga to tell
us, ‘Canvassing board, if there is an indentation, you count it. Or if there’s only one, you don’t count it’? Absolutely.
And we would follow whatever Your Honor says.”

In his subsequent ruling, LaBarga tells Burton and his colleagues that their continued per se exclusion of votes is wrong.
But he doesn’t give them any specific, clearly delineated standards. He references the
Pullen
decision, quoting the Illinois Supreme Court ruling that voters who had problems with their ballots and styluses “should
not be disenfranchised where their intent may be ascertained with reasonable certainty,” since “such 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.” LaBarga even takes the extra step of referencing the Massachusetts Supreme Court ruling
Delahunt v. Johnston,
noting that the “court found unpersuasive that voters may have started to express a preference in a candidate, made an impression
on a punch card, but pulled the stylus back because” they had second thoughts. Of course, Delahunt and Johnston were the only
ones on that ballot, so undervotes for that race were far less likely.

But even with all of this, LaBarga doesn’t give the board any specific, clearly delineated standards.

Not helpful.

In Broward, GOP attorney William Scherer has presented to the Broward County canvassing board a sworn statement from a local
voter, William Rohloff, who claims that he almost voted for Gore and withdrew the stylus at the last minute. “If you want
to count that as a vote for Gore, you disenfranchise him,” Scherer says. “As you go down this journey as to how you divine
voters’ intent, remember William Rohloff.”

But Boies calls such claims nonsense. “If you hear hooves in the background, your first assumption is not that you’re being
pursued by zebras,” he says. Boies advises Lee, Gunzburger, and Rosenberg to ignore Rohloff. The real issue is the type of
ballot.

“Throughout Florida the counties that use punch-card ballots have two or three or four or five times as many undervotes as
the counties that use optical-scanning ballots,” Boies says. This isn’t because punch-card-county voters are less interested
in the presidential race, Boies says. It’s because punch-card machines are “inadequate.”

“I understand why Governor Bush’s advocates want to distract from the natural and logical and obvious implication of that
indentation,” he says, but in Texas, Illinois, California, and Massachusetts, a dimple can be considered a vote.

The Miami-Dade canvassing board meets at 8
A.M
. Its members are concerned.

Since they were the last ones to begin the hand recount, news of last night’s Florida Supreme Court ruling wasn’t so great,
giving them a deadline of Sunday at 5
P.M
.—or Monday at 9
A.M
.—that they never planned on meeting. And even if they had planned on it, Leahy thinks doing so would be flat-out impossible.
They would have to work ninety-six hours straight, on a holiday weekend, and they’ve already had a rough go of it in terms
of finding county volunteers. They still don’t have full staffing scheduled for Sunday.

Then there’s option B: counting just the 10,750 undervotes.

“If we, the canvassing board, did approximately three hundred ballots an hour—which is pushing it, but possibly doable—it
would take us about thirty-six hours to do that,” says Leahy. He asks the county attorney whether that’s “a viable alternative.”

Option C is to just stop the count right now. “But given what the board has already decided, I’m not sure that that’s a practical
alternative at all. We have already determined there are some votes in the undercounted ballots.”

Leahy suggests that they all move up one floor, to the tabulation room on the nineteenth floor, where thirteen IBM punch-card
counting machines stand like soldiers. Not all of the undervotes were separated out on Sunday—there are still about 119 precincts
remaining that need to be sorted. If they go up to the nineteenth floor, they can separate the undervotes from the rest of
the ballots and actually assess some of the undervotes while doing so. The room is small, so the canvassing board, Leahy’s
staff,
and two observers from each party will be the only ones allowed in. There is a window, so the media can watch from there.
A court reporter can be in there, too. A couple pool reporters, perhaps.“I think it’s doable,” Leahy says.

GOP attorney Bobby Birchfield—fresh from Mississippi, where he has just lost a case defending a campaign-finance loophole
on behalf of big business
^*
—says that the Bushies are willing to work with the canvassing board on crashing on the full hand recount, and they are certainly
not opposed to stopping the whole thing. But option B is simply not in the statute, he says, and you guys ruled against doing
it way back when the Democrats first asked you to. Additionally, Birchfield says, “the first two hundred precincts or so,
our statistics indicate, voted very heavily for Mr. Gore. There are going to be other precincts in the county that voted very
heavily for Governor Bush.” So you can’t include votes from those first precincts that were hand-counted, since that’s simply
unfair.