Down & Dirty (72 page)

Frankel realizes something sophisticated is happening. These guys aren’t just deciding on their own, “OK, now we’re going
to take care of the Bush campaign.” And despite Jeb’s low profile, he isn’t just sitting at home in front of his fireplace
twiddling his thumbs. This thing’s just a game, she thinks, and everyone knows it.

The contest papers are filed at 12:14
P.M
., Monday, and a computer selects a judge to preside over the contest: circuit court judge N. Sanders Sauls.

“This is the worst judge we could have drawn,” Dexter Douglass tells his fellow members of the Gore legal team. “This is a
looong
draw.” He’s a slow judge, Douglass says, and he’ll be an obstacle in their goal to have an expedited trial so they can be
done with before December 12, the “safe harbor” day six days before the electors are to meet. Feeney and McKay have made it
clear that the Florida legislature will step in and appoint Bush the electors he needs if this thing hasn’t resolved itself
by then.

More important, Douglass tells the team, “Sauls is a dyed-in-the-wool Southern Democrat who’s for Bush.” Douglass, seventy-one,
doesn’t know this for a fact, of course. But he’s known Sauls, fifty-nine, since Sauls was a boy. And he knew Sauls’s mom,
chair of the Jefferson County
Democratic Party and a tax collector; he even knew Sauls’s father, a clerk of the circuit court.

Douglass sees Sauls as one of a breed of North Florida Democrats that clings to the ways of the past. “I could have been very
much like Sauls,” Douglass will later say, emphasizing that his direct contact with African-Americans throughout his life
is what made him ultimately stick with the Democratic Party—despite what he deemed in the ’60s and ’70s to be some radical
moves. To be sure, his concern for African-Americans started out paternalistically, but Douglass—a Korean War veteran, losing
congressional candidate in ’62, close friend and former general counsel to Chiles, and cattle farmer—has evolved. He doesn’t
think Sauls has.

We’re not going to win with Sauls, Douglass says.

And just to complicate things further, Douglass says, Sauls really got into a public pissing match with the Florida Supreme
Court. In November 1998, he explains, Sauls fired the longtime liaison between the Second Circuit and the Leon County government.
The administrator had publicly questioned a hiring decision Sauls had made that ignored a search committee’s recommendation
for a family law administrator; Sauls had instead hired a friend’s daughter. But the larger issue was whether Sauls—as chief
circuit court judge—was running the Second Circuit in an autocratic and divisive manner, as both court employees and other
judges complained. Sauls was hauled before the justices, who chewed him out. The next morning he resigned as chief judge.

The tensions involve more than that one incident, however. Sauls isn’t respected by the Florida Supreme Court, Douglass says.
His rulings have been overturned more than pancakes on the griddle. Appellate courts are constantly reversing his decisions,
often finding that he too strictly enforces technical administrative matters.

Berger and one of his Tallahassee partners, John Newton, have another concern about Sauls. Newton has a history of publicly
and financially supporting candidates who have run against Sauls. As a result, at one Florida Bar event, Sauls refused to
shake Newton’s hand. Newton has heard from any number of people that Sauls doesn’t like him, that somehow he even holds him
responsible for his problems when he was essentially fired by the Florida Supremes as chief judge. Newton, truth be told,
thought it all a bit odd, and immature. But since Newton was Gore’s attorney of record in Tallahassee, his signature the one
at the bottom of the briefs, this was something that Klain and Gore needed to at least know about.

The Gorebies now debate whether or not they should move to have
Sauls recused. The friction with Newton alone could be grounds for Sauls to recuse himself under Florida’s rather expansive
recusal laws. Zack, back in Tallahassee to work on the evidence for the trial, is in favor of the recusal motion. But Boies
doesn’t think it’s such a hot idea. If we’re going to win this case, in order to maintain the legitimacy of that win, we don’t
want to have anybody with a view or argument that we’re engaged in judge-shopping, he says. Appellate courts and courts generally
do not favor recusal motions, he reminds the team. And, Boies thinks, in a way we might be better off appealing an adverse
judgment from Sauls because of the bad blood between him and the Florida Supreme Court.

Ultimately, Gore and Klain decide not to ask for Sauls to recuse himself. They do make a more subtle attempt to remove the
case from his courtroom, however, making a motion to consolidate the case with the
Volusia v. Katherine Harris
matter. Were Sauls to grant that motion, the case would return to Judge Lewis’s courtroom. But Sauls rejects the motion.

As another step in the Gorebies’ media plan, Gore himself goes before the cameras to personally explain to the world why he’s
taking the unprecedented step of contesting the election.

Public appearances by Gore are always fiercely debated within the Gore camp. Donna Brazile thinks that Gore isn’t doing enough,
she thinks he should be out almost campaigning again. Pollster Stan Greenberg, on the other hand, thinks that Gore’s completely
ineffective as a spokesperson—the less seen of him, the better. Fabiani’s attitude is: Look, this is our candidate. And he
needs to explain what he’s doing.

Gore steps up to the podium, and immediately the flashbulbs start going off. The Bushies don’t allow photographers to take
pictures during their man’s speeches—it ends up creating a distracting strobe effect. Usually the Gorebies don’t either, but
there’s a screw-up, and the photographers start shooting CLICKCLICKCLICK, totally ruining the mood.

“A vote is not just a piece of paper,” Gore says. “A vote is a human voice, a statement of human principle. And we must not
let those voices be silenced….Ignoring votes means ignoring democracy itself. And if we ignore the votes of thousands in Florida
in this election, how can you or any American have confidence that your vote will not be ignored in a future election?”

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“That is all we have asked since Election Day, a complete count of all the votes cast in Florida, not recount after recount,
as some have charged, but a single, full, and accurate count. We haven’t had that yet.”

That is, of course, not true, and it is nothing short of amazing that Gore would make this claim. Gore has now twice suggested
a statewide recount—but half-heartedly, and a statewide recount is not the goal of either his legal or his political teams
down there.

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“Great efforts have been made to prevent the counting of these votes,” Gore says, accurately. “Lawsuit after lawsuit has been
filed to delay the count and to stop the counting for many precious days between Election Day and the deadline for having
the count finished.” In Miami-Dade, Gore charges,“election officials brought the count to a premature end in the face of organized
intimidation.”

This is artfully phrased, since it doesn’t actually state that the intimidation caused the count to end, but Gore’s insinuation
borders on demagoguery.

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“There are some who would have us bring this election to the fastest conclusion possible,” Gore says. “I have a different
view. I believe our Constitution matters more than convenience. So, as provided under Florida law, I have decided to contest
this inaccurate and incomplete count in order to ensure the greatest possible credibility for the outcome.”

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Gore’s poll numbers continue their free fall.

On Tuesday, November 28, Baker parades what one CNN correspondent refers to as “the Boies Killers” before the TV cameras,
and Phil Beck’s about to faint.

It’s not because he’s nervous. It’s because he quit drinking coffee about a year ago, so he could sleep better. This morning,
however, after pulling a near all-nighter studying the case, his ass is dragging. As he was about to be introduced to the
press corps with great aplomb, he thought he should violate his system’s caffeine embargo. GLUG GLUG, two giant cups of coffee.

He almost instantly regrets it. He’s completely lightheaded. He thinks he’s going to pass out. Baker’s talking to the packed
room of reporters, who have no idea who Beck is. Beck’s standing there before them alongside Terrell and Bristow and Barry
Richard, who also have no idea who he is. And all Beck can think about is how he’s about to faint in front of the world and
be sent home in a box.

“This is an extraordinary procedure, and we are entering new, uncertain, and controversial territory,” Baker says. “Therefore,
I would like to
introduce the senior members of the litigation team, who will be defending the vote of Floridians in favor of Governor Bush
and Secretary Cheney.”

The white-maned Richard steps up.“We believe that the election contest is without legal substance,” he says. “We have divided
up the issues among the lawyers, and each one here with us today is prepared to comment on a specific issue.”

Terrell’s first up. “I’d like to talk to you about one of Mr. Gore’s pet theories in the case, and that is the myth that there
are ten thousand votes that are not counted in Miami-Dade County,” he says. “In fact, those are non-votes. And indeed, it
is not unusual for people not to vote fully in every election on a ballot. In fact, those ten thousand non-votes are about
1.6 percent of the votes cast in that county.”

Then comes Bartlit. “I’m going to talk about myth number two,” he says. “That’s the myth that Miami-Dade would have conducted
the manual recount unless a—if it wasn’t for a Republican mob that intimidated the canvassing board. A Gore lawyer, Ron Klain,
said that a mob stormed the counting facility to stop the count. That’s the myth.

“Here are the facts,” Bartlit says. One, the protest was over the fact that the move to the nineteenth floor “was a violation
of the Florida sunshine law.”

Second, Bartlit says, laying it on a bit thick, the protest was benign, “peaceful” even. “There were babies in the crowd.
There were little kids there. There was, in some ways, a holiday atmosphere.”

Beck steps up, mentions the butterfly ballot case, which is heading toward the Florida Supreme Court. It “is not fair to wait
until the votes have been counted and then, if you don’t like the outcome, to say that… there was something wrong with the
form of the ballot,” Beck says. He does not faint.

Lastly, Bristow pops up to talk about Nassau County, throwing the “count every vote” rhetoric back in the Gorebies’ faces.
“These two hundred eighteen votes were real votes by real people who did what they needed to do to express their will,” Bristow
says. “No one, at no time, declared these votes illegal….The board unanimously voted—including two Democrats, and that included
the supervisor—that this should be done to express the will of two hundred eighteen people who had really cast their votes.”