Down & Dirty (64 page)

At NavObs, the vice president is fixated on the Miami-Dade mob.

He wants every link torn apart, he orders still photos to be reproduced from the news footage, and a montage video about the
protest to be cut by media man Bill Knapp. Knapp’s video intersperses still photos of the protesters with text stating their
GOP jobs. Copies are distributed to the
Wall Street Journal
and others.

Gore spends his days buried in the minutiae of every aspect of the case. Camped out in his library—which has a TV, several
comfortable couches and chairs—or, more likely, his dining room, Gore e-mails his staffers, trades briefs, talks to everyone
he can. During the campaign, his sphere of advisers outside his family was pretty limited: Daley, Carter Eskew, Shrum, Devine,
Lieberman. Now it’s grown to dozens. He and Klain talk twice a day. He and Whouley once a day. He’s taken matters into his
own hands, for better or for worse.

The presence of an old reporter pal, trench coat–wearing Wendell “Sunny” Rawls—a Pulitzer Prize winner—is noted by some of
the staffers. The DNC kids have taken to referring to Rawls as “The Equalizer,” based on the one-hour CBS 1980s crime drama
about, according to the show’s promotional materials, “an ex–Company agent who applies his dangerous and often deadly skills
to helping people who have nowhere else to turn.”

At the DNC, The Equalizer researches the Miami-Dade thugs while also working on the link between the voting-machine manufacturer
and companies
in Texas. Over Thanksgiving weekend, one senior Gore adviser, after talking to the vice president, sends out this typo-ridden
note to DNC researchers:

Subject: note from conversation

Message:

check out company that designed and produced the ballot in Palm beach. Based in Little rock. Two factories that subcontract.
One in ARK, one in Texas.

Need to confirm that, read it the week after the election.

Research the Little rock gazette, from Nov. 8 therougth the 12th, present time. Controvsery hit the butterfly ballot. Local
paper did something on it.

Find out where the subcontractors are. If one is Texas, zero in on that. Find out who runs it, contributions. Etc. same thing
with Little Rock contractor.

While Gore is almost too involved, Bush is about as hands-off as a guy can get while still having a pulse. He splits his time
between his ranch in Crawford and the governor’s mansion, exercising, quietly preparing his transition team, letting the man
he now refers to as “General Baker” run the show completely.

“What we’re asking this court to do,” Bartlit says, “is to hear some of the things that have taken place. And send an order
down to these counties, simply saying, ‘Will you please take’—not ‘please’—‘Will you
take
another look at the ballots under these circumstances, given the changed events that we’ve seen in the last week?’”

Judge Bubba Smith seems underwhelmed with Bartlit’s presentation. Bartlit doesn’t know if he’s just having a bit of fun with
him or what; Beck thinks that Smith is also a bit clueless, he keeps talking about how he doesn’t understand how and why the
federal government can review Florida election laws before the laws become official. It’s a technical point, and a weird thing
for Smith to keep harping on, since no one else has a problem with it, but it makes Illinoisian Bartlit seem even more like
a fish out of water.

“There’s no state or federal law that provides for a ten-day extension for receiving overseas ballots, is there?” Smith asks.

“Yes, sir,” Bartlit says. “There’s a rule.”

“That’s not a law, that’s a rule,” Smith says.

But it is a law, Bartlit thinks to himself. It’s a rule that’s part of a consent decree, which is binding. True, it’s not
a law passed by the legislature, it’s a judge-made law. But it’s still a law. But Bartlit knows better than to argue any more
on this point.

There are other issues where Bartlit’s not exactly scoring points.

“So we say if it has a postmark or if it has no postmark because of the military exigencies, Your Honor, if it doesn’t have
a postmark, but it’s signed and dated no later than the date of election, it should be counted,” Bartlit says. “That’s all
we’re saying.”

“Well, you’re saying quite a bit,” Smith says.

Another Bartlit anecdote is a disaster. “This is hearsay, but we’re receiving e-mails and phone calls from people on carriers
in the Gulf saying, ‘I sent my ballot in, and I heard that it’s not being counted,’” Bartlit says. “So, it’s not time of war,
but it’s not—for those fellows, and those young women—it’s not time of peace either.”

“Well, we certainly want every proper ballot to be counted,” Smith replies. “But we can’t resolve this presidential election
out of your hearsay suggestions.”

Summers and another Bush attorney, George Meros, decide to step in. Bartlit’s getting the shit kicked out of him.

In a way, it’s hardly his fault. This case was a dog to begin with. The more damning presentations, however, come from the
county canvassing boards that Bartlit is taking to task; they argue that they were just following the law, and frankly they
seem to know a bit more about it than Bartlit does. Says Ron Labasky, representing Leon and Pasco Counties, “We believe we
all have applied the law fairly and directly, and that any ballot that was not counted didn’t meet the criteria of either
state law or federal law.” Says Michael Chesser, representing Okaloosa County, “We think we have done exactly what the law
requires us to do. I think my canvassing board went far beyond what they thought perhaps they would be required to do. I can
tell the court that my canvassing board has seen no memoranda from anyone.”

Chesser makes sure that everyone knows that their disagreement with Bartlit and the Bushies has nothing to do with party label.
“By registration and by voting practice, Okaloosa County is highly partisan” for the GOP, he says. “It is a home to Eglin
Air Force Base, which is the largest air force base in the world….While it may be possible for some folks in this room to
be highly partisan, it is entirely inappropriate, I would submit, either for the court—and I would never suggest that it would
be—or for a canvassing board to let partisanism
[sic]
enter into what they do.”

Some of the counties’ attorneys even seem offended. “I can tell you unequivocally, with regard to what my client believed
the law to be, there was no confusion whatsoever,” says Collier County’s Wayne Malaney. Adds David Tucker from Escambia County,
“We counted those ballots; our canvassing board did count those ballots.”

“The court will review what’s been presented and enter a written ruling based upon that, but without any proof that any of
these canvassing boards have not complied with the law, the court is very hard-pressed to grant any relief,” Smith says.

Before the day is over, the Bushies will quickly withdraw the suit altogether. After all, nine of the fourteen counties contact
the Bush legal team and tell them that they’re going to go along with what they want them to do. The Bushies take their suit
directly to the five remaining counties, away from Bubba Smith. To Hillsborough, Okaloosa, Pasco, Orange, and Polk Counties
they go, in search of votes. And the trolling goes well. The suit may not have been the strongest case on the law, but it
serves its political purpose.

An anti-Gore rally is held in military-heavy Pensacola. Elections supervisors are bombarded with angry, clearly coordinated
phone calls and e-mails. In Duval County (Bush 152,098 votes, Gore 107,864), the canvassing board reviews the absentees and
gives Bush 20 net votes. In Brevard County (Bush 115,185, Gore 97,318)—home to Cape Kennedy and Patrick Air Force Base—Bush
gains 8 net votes. Late ballots are accepted in Santa Rosa (Bush 36,274, Gore 12,802) and Escambia (Bush 73,017, Gore 40,943)
Counties—the latter of which gives Bush 36 net votes. The Santa Rosa County canvassing board accepts 2 ballots with postmarks
of November 8, the day after the election, and 5 ballots that arrived after November 17. Clay County (Bush 41,736, Gore 14,632)
accepts 2 votes that arrived by
fax
.

Eventually, Bush will pick up a net of 176 votes by Thanksgiving weekend—Unger refers to the operation as “Thanksgiving stuffing.”
And Bartlit will estimate that at the end of it all, the suit shakes out maybe 300 to 400 net votes for Bush.
^*
It goes without saying that no one on the Bush team will admit to knowing anything about the conference call, where the drumming
up of illegal post-election ballots was discussed.

More immediate good news for the Bushies on Friday, November 24: the
SCOTUS
will hear arguments on December 1. Both liberal and conservative legal scholars are shocked; this seemed like the kind of
case that the
SCOTUS
always stayed away from. Three who are truly stunned are junior partners of Bartlit Beck, in Tallahassee to work on the case;
Shawn Fagan, who clerked for Rehnquist, Sean Gallagher, who clerked for O’Connor, and Glen Summers, who clerked for Scalia,
all can’t believe it. They didn’t think their bosses would consider this case to be in the
SCOTUS
’s jurisdiction.

SCOTUS
doesn’t buy all of the Bushies’ arguments—the justices are not interested in the equal protection argument, for example.
But they are interested in the 3 U.S.C. 5 deal, and they want to hear more about the Florida court’s new deadline being “inconsistent
with the Article II, Section 1, clause 2 of the Constitution.

Plus: Tribe and Olson get a writing assignment.

The parties are directed to brief and argue the following question:

What would be the consequences of this Court’s finding that the decision of the Supreme Court of Florida does not comply with
3 U.S.C. Sec. 5?

The briefs of the parties, not to exceed fifty pages, are to be filed with the Clerk and served upon opposing counsel on or
before 4
P.M
., Tuesday, November 28, 2000.

Class dismissed until Friday, December 1.

To get to Broward County Courtroom 6780—Judge Lee’s turf—you have to go through security, take an elevator to the third floor,
walk down a long hallway, make your way past another sheriff’s deputy, and then take yet another elevator to the sixth floor.

Republican governors like Frank Keating of Oklahoma, Bill Janklow of South Dakota, Mark Racicot of Montana, and Christine
Todd Whitman of New Jersey have all done this and now saunter in and out of the room. Republican representatives Steve Buyer
of Indiana and Duncan Hunter of California also show up to watch the hand recount.

Lee calls them “the pontificators.” Gunzburger calls them “the spinmeisters.” To them, the GOP officials aren’t there to observe
the process, they’re there to bad-mouth it. The Republican observers who have been there the whole time know that the process
has been fair and open, Lee thinks. These
bigwigs are simply hypocrites. One time, Michigan governor John Engler walks in, sees a dimple for Bush, and agrees that it’s
a clear vote for his fellow Republican. Then he goes outside to the press and derides the notion of dimples.