Down & Dirty (83 page)

“He says, ‘Well, maybe there are some votes there, maybe there are some people who intended to vote. But it’s too late, and
that’s that,’” Boies says of Richard, characterizing this euphemistically as a “bad things happen” argument. “With respect,
Your Honor, Florida statute and Florida case law do not permit the court to say, ‘Well, we’re simply going to ignore the will
of the voter.’”

As for Miami-Dade, Boies continues, whether you believe the bumbling Nicolas Hengartner or the creepy Laurentius Marais, the
canvassing board there “was able to discern the clear intent of the voter in between one-fourth and one-fifth of all the ballots
that the machine could not read…. So what needs to be done with these nine thousand ballots? We think the answer is obvious.
They need to be counted. They need to be reviewed.”

What about counting
all
the ballots statewide? “I challenge them to cite the case that says that,” Boies says, “because the statute doesn’t say that.”
The contest statute asks us to prove that there are legal votes that haven’t been counted, Boies says. “And we’ve done that.”

Richard’s turn. Two weeks ago, he says, the Florida Supreme Court ruled, in
Palm Beach v. Harris,
that “the decision whether to conduct a manual recount is vested in the sound discretion of the board.” Well, the Miami-Dade,
Palm Beach, and Nassau County canvassing boards exercised their discretion responsibly. And no one has proven otherwise. “I
kept waiting for a witness to come in here and testify that there was a problem somewhere in this state, and that the problem
was of sufficient magnitude to overturn the county anywhere,” Richard says. That witness never showed up.

Boies is misreading the statute he cites for Nassau County, Richard says. The statute “is not about the difference between
the first machine count and the second machine count, it’s talking about the distinction between the machine count and the
returns that were submitted” to the canvassing board. “A voter can’t come into court and say, ‘I forgot to go to the polls
on Election Day,’ and say, ‘You need to give me another chance.’ And the voter can’t say, ‘I went to the wrong precinct and
voted the wrong place; let me vote again,’” Richard pleads. “Why is it any different when a voter walks into the booth and
either fails to read the instructions properly or, if he can’t read them or she can’t read them, fails to ask the personnel
who are available for such person to help, and votes wrong?…The voter has some obligation to do it right.”

The burden of proof is on Gore’s team, Richard says. “We are light-years
from any carrying of that burden. There is no proof of any problems. There is nothing but two witnesses with speculation.
There is no evidence.”

He puts it to Sauls: Is Florida “prepared to tell the American people that it will disqualify its electors and possibly hinge
the election of the presidency on the only two witnesses presented by the plaintiffs?”

Under pressure to speed things up, the Gore team limited their case to two witnesses. Just as the Gorebies’ original decision
to limit the hand recount to four counties, rather than all sixty-seven, was rooted in the pressure they felt to have the
matter resolved quickly, the Bushies successfully spin the results of their opponents’ hypersensitivity to PR and the ticking
clock as evidence of an inherent disingenuousness.

In the midst of some of the riff-raff closing arguments—Klock’s, and some of the voters’ attorneys—there’s an off-the-record
discussion about Shirley King, elections supervisor of Nassau County. Sauls says, “I salute Miss King as a great American.”
That makes two great Americans in one trial. Not bad.

Terwilliger steps up and makes a motion to dismiss.“The relief they have asked for is a partial recount of votes. And here
they disagree in their papers without contention that a manual recount has to be
all
the votes, or that any recount has to be of
all
the votes.” Boies said that the Bushies needed to cite a case in order to push for a statewide recount. “We don’t need a
case,” Terwilliger says. “The statute says it all. It is self-evident, and logic dictates that it be all the ballots that
would be subject to a recount.”

In fact, the Bushies are now convinced that the Gore legal team will never go for a statewide recount. They believe that the
Gorebies think that they would lose a statewide recount—especially one with clearly defined standards—and so, even though
the Bushies don’t want one, they shrewdly seize it as a PR and legal maneuver.

As for their argument that the Miami-Dade canvassing board erred by not continuing their hand recount, though its members
were convinced that they could never make the November 26 deadline, this is ridiculous, Terwilliger says. “Surely the irony
is lost on no one, no less Your Honor, that the board is now being sued” for not abiding by a situation that the Gorebies,
using the Florida Supreme Court, created, “for failure to meet a deadline that the Gore-Lieberman campaign asked for.”

At 11:18
P.M.
, the case is closed. “I will give you a decision in the morning,” Sauls says.

“I think Barry Richard’s a fine lawyer,” Boies says to a scrum of us. “I think he made the best case he could with the material
he had to work with.” After recouping in a conference room in the circuit court judges’ chambers, Boies is handed a beer,
which he guzzles in the elevator down to the parking garage.

It seems to escape at least a few of those following this whole mess that it has now become a war between thieves. Perhaps
it always was. Bush doesn’t want any recounting of ballots, and you don’t need to be a politics junkie to know what that means.
If you’re confident you scored the touchdown, you’re not going to worry too much about the instant replay. But Gore, bar a
few offers he knew would be rejected, hasn’t exactly wanted a replay, either. He’s only wanted to review a select chunk of
Florida where statistically he should clean up. Yes, an argument could be made that limiting the recount to those few counties
made lots of sense; it would be logistically much more feasible than a statewide recount, and it certainly was playing by
the rules to choose the counties where they wanted a second look. Bush could have chosen some Republican counties if he’d
wanted to, but of course he didn’t want any recounting anywhere.

Was there any way Gore could have avoided getting to where he is right now, his top lawyer heading for his car, his case in
tatters? Possibly not. Maybe in California or New York or Illinois. Maybe in Massachusetts or New Mexico or Oregon. But this
is Jeb Bush’s backyard. This is Katherine Harris’s home. They pull the strings, they hold the cards, and they’re the ones
folks like Sauls and Burton and Penelas are going to have to answer to once David Boies and Ron Klain have gone back home.
But even if this is the Jeberglades, there was never—not once—a good-faith effort by the Gorebies to go statewide and find
out who really won if the 175,000 unread ballots were examined. There were Republican officials—not a lot of them, but enough,
like Nebraska senator Chuck Hagel—who had said that a statewide recount seemed the only reasonable solution; Gore could have
taken cover by standing with him. But he didn’t, because his lawyers and his pols told him he didn’t have to, and that he
might not win that way. So in enemy territory, Gore ceded the small amount of high ground he had. Between that and the fact
that the Bush team has out-lawyered, out-intimidated, and out-maneuvered the Gore folks at just about every turn, it is hard
not to be left with an inescapable conclusion. Al Gore may well have won more votes than George Bush here in the Sunshine
State. But assuming the SCOTUS keeps to form, this is over.

Boies should probably think about a second beer. At least.

W
e in the media may not have been paying much attention to the Seminole County case up until now, but the Gore and Bush teams
sure have been. And even before the case is tried, all sorts of odd machinations go down.

After Thanksgiving weekend, Seminole County circuit court judge Debra Nelson is preparing to hear the suit, when her campaign
manager reveals that Nelson’s campaign, too, had forgotten to put voter ID numbers on absentee-ballot applications, and thus
it, too, had fixed about five thousand applications. The Republicans move that the case be shipped to Tallahassee to be consolidated
with the Sauls case. They get one out of two: it moves to the capital but to the courtroom of circuit court judge Nikki Ann
Clark.

“I think this might be the sleeper case over here,” an intrigued Judge Terry Lewis says to Clark.“Everybody’s looking at the
Sauls case over there, but we’ve got thousands of votes over here, and if they get thrown out, the election will go the other
way.”

Some of the Bush legal team chieftains are intrigued as well. Clark’s an African-American woman, an appointee of Governor
Chiles. Sounds to them like a Gore voter. They want her recused.

But Barry Richard disagrees. She’s very intelligent, very independent, she’s a good judge, he tells them. She’ll rule on the
case on the merits, he says. Others on the Bush team aren’t so sure. Ginsberg, Terwilliger, and Baker learn that Clark was
one of eight judges who’d been nominated in September to fill a vacancy on the Court of Appeals for the First District—and
one of six whom Jeb Bush
hadn’t
selected. They decide to ask her to
recuse herself. Her failure to get a promotion is entirely a secondary consideration.
^*
But it gives the Bush team a barely legitimate-seeming excuse to ask for her disqualification.

Barry Richard disagrees. This “promotion” thing is a ruse; the recusal motion is because she’s black, a woman, a Chiles appointee—and
the reaction of his colleagues offends Richard. That she wasn’t promoted to the appellate court is nowhere near grounds for
recusal, he says. And it could look bad, too. But the Bushies don’t care about the merits or how people will interpret their
actions; all that matters is that there are 15,000 absentee ballots that Judge Clark could possibly throw out, and they have
to stop her.
^†

Though he’s signed almost every Leon County court motion that comes out of the Bush Building, Richard refuses to sign the
recusal motion against Clark. A Tallahassee lawyer named Segundo Fernandez does so instead.

On Wednesday, November 29, the Bush lawyers file the motion. After Clark denies it, the Bush lawyers on Thursday appeal the
decision to the district court of appeals—using language that even Baker Botts attorney Daryl Bristow finds a bit harsh. The
DCA also rejects the motion. And though there have been concerns expressed that both the motion and the appeal might garner
them bad press, neither action merits much media coverage at all. Once again the Republicans are given a pass. So much for
the “liberal media.”

Clark has been in highly charged situations before—assistant state attorney in Miami, assistant public defender in West Palm,
appellate defenders’ office in Detroit, staff attorney with Legal Services of North Florida, aide to Chiles, assistant attorney
general of Florida under Butterworth, director of legislation for the Florida Department of Environmental Regulation under
Carol Browner. And that, in many ways, was the whole point. She wanted to be where the action was. Growing up in Detroit in
the ’60s, she could see that the legal arena was the place to be if you wanted to make a difference. In her mid-teens, she’d
cut class to watch civil rights lawyers like Elliot Hall making their cases. She didn’t know what those lawyers were even
saying, but she knew that they were right, and that they were making a difference.