Down & Dirty (69 page)

The Bushies know that their man will be certified the winner of Florida in a couple hours. Now they have to decide whether
or not they’ll continue to press ahead with their case in the U.S. Supreme Court. They got their certification, Bush is the
official winner, why keep fighting? Why take the risk
that the
SCOTUS
will do something wild and unpredictable? Bush’s own case is buying Gore time, giving him cover to contest the election results.
Why not just pack up and go home? It’s a real dilemma.

The arguments on both sides are outlined for Bush in a thirty-minute conference call with Austin. Zoellick and Bush domestic-policy
adviser Josh Bolten are worried—what if they lose? Then the Florida legislature will be completely demoralized. But others—Olson,
Carvin—are more optimistic. We’re right on the law, they say. We’re going to win it. The toughest thing is to get the U.S.
Supreme Court to accept the case to begin with, so we’re over that hurdle. Plus, it’s good to have the
SCOTUS
out there, hovering around. It will keep the Florida Supreme Court on its toes.

Bush considers it the toughest choice he has to make.

“We’re going to stick with the appeal, because it’s the right thing to do,” Bush finally says.

When Harris, Clay Roberts, and Agricultural Commissioner Bob Crawford walk into the cabinet room at the state capitol and
step up to officially declare victory for the man all three of them endorsed, the news is watched with angry eyes in Palm
Beach County.

“I think it’s over,” says Crawford. “It should be over.”

Then he botches the famous Yogi Berra quote “It’s not over ’til it’s over” (Yogi said “ain’t”) but makes a cogent point. “Both
sides have enough legal talent to keep this tied up through Christmas,” he says. “But the one thing the lawyers can’t do for
us is to bring this country together.”

Of course, one wonders if Crawford would be saying that if he were declaring Gore the winner. One wonders what decision Harris
would have made about late returns from Palm Beach County if
Bush
had needed them to win.

No, one doesn’t, actually. One knows.

Harris “hereby” declares that “our American democracy has triumphed once again,” and gives the certified vote results for
Florida: Bush beats Gore by 537 votes—2,912,790 to 2,912,253.

In Washington, Lieberman is there to immediately rain on the parade, lest anyone think that there’s a chance that his side
finds this decision final. “How can we teach our children that every vote counts if we are not willing to make a good-faith
effort to count every vote?” Lieberman asks. Good question. One he might put to his own lawyers and pols down in Florida who
are decidedly not putting forth any serious effort “to count every
vote.” “Vice President Gore and I have no choice but to contest these actions.”

At 9:30
P.M
. EST, bookended by American flags, a
somewhat
presidential-looking Bush appears before the cameras and waxes bipartisan. So much of the Bush strategy, dating back to before
the primary season, has been about inevitability, about declaring himself the winner. And tonight—despite reports that he’s
been sulking about his 500,000-person popular-vote loss—Bush is on top of his game. He wants to work with Democrats and Republicans
alike, he says, on education, tax reduction, Medicare reform, a prescription-drug benefit for seniors. “I will work to unite
our great land,” he says. “Now that the votes are counted, it’s time for the votes to count.” He says that Cheney will set
up the transition team in Washington, and former transportation secretary Andy Card will be his chief of staff.

Bush says that he’s heard Gore’s lawyers are talking about contesting the election. “I respectfully ask him to reconsider,”
Bush says. “Now that we are certified, we enter a different phase.” Protesting votes before the certification is one thing,
Bush argues, but “filing a contest to the outcome of the election—that is not the best course for America.”

Ginsberg does a conference call with reporters. “It’s impossible to overstate the importance of having the certificate,” Ginsberg
says. “Governor Bush and Secretary Cheney have been declared the winners of this contest,” and now the burden is on the Gore
team to overturn that—not an easy task.

In Berger’s Tallahassee office, Klain and Boies are doing the math. They have a conference call with Gore scheduled for Monday
morning, 9
A.M.
, and they need to decide what will be in the contest lawsuit.

Boies is downing Diet Cokes, and Klain is popping M&M’s, as they tear through the figures.

How can they make up the 537-vote gap?

When I call Bash to find out what’s up, I get a strange comment.

“We won!” he tells me, based on the Gore team’s new math.

First off are the 192 votes that Palm Beach County handed in about two hours past the Florida Supreme Court–mandated deadline,
though it did get them in before Harris’s announcement. Why not count them? the Gore team asks. Shouldn’t Harris have used
her discretion to count votes?

But when I ask Ginsberg about them, he responds that it’s the simple question of a deadline missed. The Palm Beach canvassing
board knew what the deadline was and followed through with typical Democrat incompetence. So tough shnoogies.

Then, the Gore folks say, there are the net 157 Gore votes from the partial hand recount of Miami-Dade County that was never
completed. Those are 157 votes that the world already knows belong to Gore.

C’mon,
says Ginsberg. “The law makes it clear that partial-recount results can’t be included in election certification, for any
number of reasons. If you were going to accept partial returns, you could just recount the most Democratic precincts in a
county, then call off the recount and say, ‘OK, we win.’ It’s just not done,” Ginsberg says.

The final tally should also include 51 Gore votes from Nassau County, the Gore team says. “The law says we have to have it,”
Klain says.

But in Nassau County, Ginsberg counters, “the Election Night votes were counted and reconciled. In the recount, the votes
for both candidates were lower. So rather than disenfranchise voters, the board decided to go back to their Election Night
statistics.”

With those three figures—192 + 157 + 51—that’s 400 votes right there, the Gore attorney goes on. That means just 137 more
to win! And, the Gorebies say, there are more!

But this is nonsense; the Gorebies are talking crazy talk. Do they really think that the Bushies can’t counter with votes
to chip away of their own? It’s precisely this shortsighted, desperate approach to the vote count that has completely lost
me. Bush has now won the certified election. The only vote total that could replace tonight’s in legitimacy is one that comes
with a statewide recount of
all
the undervotes and overvotes, by
all
the canvassing boards in
all
the counties. The Gorebies original plan—to enter the contest phase with as many new votes on the board as possible—is now
lost amid a pathetic scramble—here a vote, there a vote, everywhere, a vote vote. The clock is TICK TICK TICKing in their
ears, and they can’t think of anything but how to get Gore votes on the board. But that means this isn’t about “counting the
votes”—it’s about counting all the Gore votes.

Like the dimples. According to Democratic observers of the Palm Beach hand-recount process—the one that didn’t count—there’s
a net gain of 846 dimple-chadded ballots that belong to Gore. If the 846 dimpled Gore votes counted, Gore would lead Bush
by 709 votes, Bash says.

Then there’s the rest of the Miami-Dade hand count that the Gore team thinks should have proceeded. After all, the net gain
of 157 Gore votes
came after only 20 percent of the 400,000 or so ballots were recounted. Since Gore won Miami-Dade 53 percent to 47 percent,
that 6 percent edge could provide enough votes for Gore to eke out a win. But to include this 20 percent—largely Democratic
precincts—without the other 80 percent is completely unfair. Not to mention, as De Grandy pointed out, a possible voting rights
violation.

“The ten thousand ballots that they claim were the subject of an under-count, they were counted,” Ginsberg says. “First on
Election Night, then in a machine recount, so those ballots have been counted at least twice already.”

Okay, that’s not quite true either. The Bushies have now taken to referring to undervotes as “no votes,” as if there’s nothing
there at all. By that logic, the ballots
were
counted; it was just that the Floridians in question didn’t want to vote for any of the presidential candidates. And further,
a hand count or any other sort of recount is a waste of time, because there’s nothing to find.

As of Sunday evening, the Gore legal team is leaning against suing Seminole County. “Our legal papers will be about just trying
to get the votes counted,” Bash says to me. “We don’t want to deal with mischief—although clearly this was mischief—but we
want to keep the argument clean: Just count the votes.” They’re still thinking of challenging some of the more dubious military
absentee ballots that were allowed by counties that were, at the time, being sued by the Bush campaign. They call these ballots
“backwash,” before eventually deciding on a nicer name, which the Bushies are using, too: “Thanksgiving stuffing.”

By now, I can’t really truck either side. Klain and Boies conclude that they’d support a statewide recount, but their energy
and their rhetoric is devoted elsewhere—to plucking up Democratic votes wherever they can find them. After all, Gore offered
a statewide recount on national television—twice—and Bush refused both times, they say. We’ve been reminded again and again
that Florida law lacks a mechanism for a candidate to legally compel a statewide recount, so the only way to get one is to
go to all sixty-seven canvassing boards individually, and ask them, individually, to agree. And the only way to make that
happen is if both parties agree—otherwise, there would be sixty-seven separate lawsuits to file.

So what seems to be left for Gore? Sketchy vote plucking that makes the Gorebies seem like desperados, scrambling for a vote
here, a vote there, with no strategy focused on counting all 175,000 of the state’s undervotes and overvotes.

Is there a Gore vote in that garbage dump at the edge of town? Quick! Berger! Get over there!

That said, at least the Gorebies support a statewide recount, at least they acknowledge that there
are
unread votes that need to be examined. The Bushies stand in the way of votes being counted, an extremely offensive notion
on its face. They demean, they deride, they insinuate, they lie. They’ve fought tooth and nail to maintain the status quo,
to keep us in limbo. “Limbo” is a good word for it, if only because it happens also to be the name of a party game, the object
of which is to see how low you can go.

As the country sinks deeper into the quicksand of torts, one man, at least, emerges outside the Palm Beach Emergency Operations
Center to offer a solution. To reporters and real people alike, an entrepreneur hands out T-shirts. They say: “Just Keep Bill.”