Down & Dirty (79 page)

“You don’t have to say who you voted for, “ Sauls says to laughter.

“And if somebody actually puts the card in the machine like they’re instructed to, and attempts to vote, rather than attempts
to make a dimple, it’s not all that hard to knock out the little chad, is it, sir?” Beck asks.

“Well, it depends on the template in there,” Brace says. He shows how it can be difficult to punch it in sometimes. “Well,
I mean, I’m hitting right here… I’m pushing down, and finally, it went in.”

“
Long last,
you’re able to vote,” Beck says. This is like slapping a punching bag.

“Do you know the difference between synthetic rubber and natural rubber?”

No.

“Do you know whether natural rubber over time tends to get harder or softer as it ages?”

No.

And on and on. He’s cooking now, sounding and carrying himself in a way that’s eerily reminiscent of Kevin Spacey at his Oscar-winning,
arrogant best.

Brace is not cooperative. “Would you answer my question?” Beck impatiently asks him.

“I thought I did,” Brace replies.

“No,” Beck says. “Answer yes or no. Then if you need to explain…”

“OK. That would certainly be the main thing that I…”

“You’re supposed to answer yes or no,” Beck says.

“Yes,” says Brace.

“Yes?”

“Yes,” Brace says again.

“Thank you,”
Beck says, his voice dripping with a candy-covered combination of exasperation and disdain.

Beck soon turns to chad buildup.

“The theory is that there’s a bunch of people voting for president of the United States, and all these little chads fall down,
and they kind of stack up on one another, and then they stop somebody from pushing the stylus through the hole, right?”

“Not necessarily,” Brace says. It stacks up on the left side, he says.

“Do you know how many people, on average, use one of these voting machines in the presidential election?”

“I don’t,” Brace says. “It would be a good number to know.”

How many chads would have to be in a Votomatic to cause chad buildup? Beck asks.

“I don’t know.”

Beck then wonders how chad can build up on the left side in a Votomatic when the devices are taken to and fro, hither and
yon, in between elections. Brace has no answer to that.

Zack has two of the actual Votomatics from Palm Beach County. He’s hoping one of them will be full of chad. When no one’s
looking, he opens the latch of one of them, looks underneath, and sees that it’s empty. He pushes the device back into place.
He opens the second one—it’s full of chad. He smiles. It’s his birthday today, and this is his present, he thinks.

He takes this second Votomatic over to Brace.“Have you ever seen somebody, after they get through voting, go ahead and shake
it up so that they get all the chads moved around?” he asks, shaking the Votomatic, hoping to discredit Beck’s theory about
the chad getting shaken. “Have you ever seen anybody do that?”

“No, I have not,” Brace says.

Zack brings the device to Brace.

“There’s a lot of chad falling out,” Brace says.

Zack asks him “to remove this cover, and, Judge, I want to show that this cover, this machine is full to the brim with chads….
May I dump this, Your Honor, on a piece of paper?”

“You need my knife?” the hammy Sauls asks, quickly brandishing a blade. Brace accepts it.

I ask a courtroom cop if a lot of judges carry knives. “I dunno, I never searched one,” the cop says. “A couple carry sidearms.”
But then again, the cop says as he takes out his own knife, “We all carry knives in the South.”

Brace opens the machine and chad confetti spills all over Sauls.

“I’m putting chad all over Your Honor’s counter,” he apologizes. Gore attorneys smile, seeming to think that the fact that
masses of chad built up in this third-party-selected machine proves their point.

Beck asks Brace to read the Votomatic’s instructions, under “Important Notice to Voter.” Brace does: “Look at the back of
the ballot card, then be sure all holes are cleanly punched, and then pull off any partially punched chips… that might be
hanging.”

“They don’t even talk about the
possibility
that somebody could come in here and end up just dimpling the thing rather than punching through, do they?” Beck asks.

“Dimples are a newer phenomenon in American electoral history,” Brace says. Not a good answer.

Brace steps down, and it sure feels like Beck just ate Brace alive.

Beck returns to his table. He likes cross-examining [read: destroying] experts more than anything else, ever since he was
a kid in the 1950s watching
Perry Mason
on TV. (I wonder if the producers of
Perry Mason
know how many baby-boomer lawyers they inflicted on the world. Terry Lewis, Steve Zack, Phil Beck all cite the show as one
of the many reasons they entered the law.) He’s been waiting his whole career to get someone to confess on the stand to being
the real murderer, he jokes. But this is pretty good, too.

Richard hands him a note: “One of the finest cross-examinations I’ve ever seen.” Terrell, too: “That was brilliant.”

In the court administrator’s office—where the Bush legal team has set up shop for breaks—the responses are the same. Beck
is getting slapped on the back, high fives.

“You should dial it back a little,” Bartlit says. “You were having a great time up there, and you did a nice job, but you
were close to going over the top. You should dial it back a little for the next guy, rather than be quite as theatrical and
flamboyant.”

“I don’t think I can,” the cocky Beck replies.

But he promises to try. Bartlit loves Beck, thinks he’s fantastic, talented, has loved watching him blossom at the firm they
created together. And he knows that lawyers love
wiseass remarks and clever sarcasm, which Beck is great at. But in past cases, Bartlit Beck has conducted tests of Beck’s
arguments on potential jurors, using focus groups of judges and lawyers and just plain folks. And every time Beck unleashes
one of his cutting remarks, the approval meter ratings go up with the lawyers and down with the jurors. The judges tend to
be mixed.

Just dial it back a little, Bartlit says again.

Hengartner is next up, Douglass announces.

Douglass has largely been relegated to the position of Team Gore MC. He doesn’t volunteer much in terms of suggestions or
ideas; he doesn’t think Boies Klain and the others want him to.

Gore attorney Jeff Robinson—the only African-American attorney I’ve seen on either side—begins questioning Hengartner, a gangly
Canadian who, Robinson quickly establishes, isn’t a Democrat, or someone being paid for his testimony, or even an American
citizen. At Yale, he teaches applied statistics, probability, and the theory of statistics. He’s here today because “it’s
an exciting problem, it’s important,” and “it provides visibility for both Yale University and also for myself.”

Hengartner discusses charts that show that there were far more undervotes in Palm Beach County than anywhere else in Florida—an
aberration the Gore team wants Hengartner to say can only be because of the county’s faulty punch-card machines. Only 0.3
percent of the votes cast in optical-scanning machines have “no recorded votes for president,” Hengartner says. By contrast,
1.5 percent of punch-card ballots were undervotes. And that figure was 2.2 percent in Palm Beach County.

Robinson then tries to get Hengartner to provide evidence that somehow Palm Beach County’s hand recount wasn’t done correctly.
During their hand recounts, the canvassing boards in Broward and Miami-Dade Counties recovered votes in 26 percent and 22
percent of their counties’ undervotes, respectively, Hengartner says. But in Palm Beach, the recovery rate was much lower,
8 percent.

Beck comes at Hengartner hard, too, seeking first to paint his knowledge of the undervote figure as incomplete, and then going
after his credibility. Hengartner, Beck establishes, doesn’t know about undervotes for other offices. Why didn’t he ask Harris
for the data?

He did, he says, but “she was less than helpful.” Surprise, surprise.

To test your hypothesis, though, you’d have to look at other offices, right? Beck asks.

“It would be interesting,” Hengartner says. “But I want to remind you, again, not all the races in each county will be competitive….There
would be popular judges, and hated judges—”

“That’s why you would look at all the counties,” Beck says, “rather than picking one county where there is the dirty rotten
judge, and one county where there is a real popular judge—”

“Can we move this to another subject?” Sauls asks, always a jokester. But Beck has made a point.

Beck produces the Hengartner affidavit from Palm Beach County—to Hengartner’s surprise and, it would seem, confusion.

Gore’s attorneys start objecting frantically. They seem to know what’s coming. Beck points to Hengartner’s analysis of the
undervotes in the 1998 Florida senate race versus those in the governor’s race. Using a projector, Beck shines the offending
graph onto the wall, as Robinson and Boies whisper to one another frantically.

“A closer inspection of the Palm Beach County ballot reveals that the senatorial race was recorded in the first column, and
the gubernatorial race in the second,” it says. The document goes on to say that “it seems unusual and indicates that the
punch-card reader does not record all the votes cast in the first column.”

“You bought into their hypothesis about the left-hand column,” Beck presses.

“I am trying to put one and one together,” Hengartner says in his stilted English.

“You haven’t inspected the ballot,” Beck asks, even though Hengartner’s statement said that “a closer inspection” of the ballot
helped prove the Gore team’s thesis.

“Have you?”

“I have not seen the ballot,” Hengartner admits.

Well, guess who has?

Beck says that he subpoenaed the elections board and has a copy of the ballot from November 3, 1996. With Sauls’s permission,
he approaches Hengartner on the stand and shows it to him.

Both
the Senate
and
the governor’s race are listed in column 1.

Bum-bum-
BUMM!

Robinson stands; he wants to see the ballot.

“It’s the only one we have,” Beck says mockingly. “If you want to come up here and stand with us, I sure invite you to.”

“You said in your statement that what was in column one was in column two,” Beck charges.“That just wasn’t true, was it, sir?
You never even looked at the ballot.”

“It contained a mistake,” Hengartner says.

“When you signed that sworn document, you were relying on the Gore legal team to give you the straight facts, weren’t you?”

“Well, I relied on the facts that I received, yes,” Hengartner says meekly.

“That’s all I have, Judge,” Beck says, as he glides back to his seat.

Bartlit is so proud of Beck his eyes well with tears.

It’s a pretty devastating moment, and Hengartner leaves the courtroom visibly rattled.

I’ve seen it a million times in D.C.: Democrats can be so fucking sloppy.