Down & Dirty (87 page)

But there’s a big “but”: Richman has found no smoking gun that shows that Democratic voters suffered because of Goard’s actions—the
Democratic Party’s absentee-ballot request form, after all, in almost all cases had the space for the voter ID number properly
filled in. And an elections employee testifies that of the 263 applicants that didn’t receive an absentee ballot, 176 of these
were Republicans and 16 were Democrats.

Richman calls to the stand a statistician, Cal Berkeley economics professor James DeLong, who offers a suggestion, based on
proportions, of how many votes they can throw out so as to be fair, while not tossing all 15,000. But as with Hengartner,
DeLong’s inexperience serves Bush well. Richman sees him fall apart on cross-examination, expressing opinions outside his
area of expertise. He sees from Clark’s body language that she’s not accepting his testimony. Or forget body language: her
language
is enough for Richman to know he’s in trouble. In his rebuttal closing argument, Richman says that this “is a case that has
to send a message and establish a very important precedent….What else would come next if the court does not enforce the law?”

“My job is not to send a message,” Clark snaps back.“My job is to rule on the case that is before me. My job is to apply the
existing case law and statutory law to the facts as I find them from the evidence.”

Court is in recess. Thirty minutes to Martin County.

Except: Where the hell is Judge Lewis?

Having not gotten much exercise since this all began, while the ball was in Clark’s court, Lewis went to shoot a little hoop.
He brought his cell phone, but it didn’t ring. Court administrators are going bananas. Where the hell is he? At 7:20, Lewis’s
wife runs into the gym. “Clark got through early!” she says. “They’re looking for you! They can’t find you!”

“Oh, my goodness,” Lewis says. After a quick shower, he “hauls buggy” back to court.

Incidentally, just in case anyone was wondering what the Florida legislature intends to do, on Wednesday, McKay and Feeney
sign a proclamation that Florida’s 25 electors are going to go to Bush.

“The action taken today is done so with considerable reluctance on my part,” says McKay, whose affair with that lobbyist he
left his wife for was probably consummated with considerable reluctance as well. “My primary objective is simple: to ensure
that the voters of Florida are not disenfranchised….If the election disputes are resolved by December 12, there may be a possibility
that the legislature will not have to act,” he explains.

Feeney is asked about the extent to which he and McKay have been setting up the safety net in cahoots with the Bushies.

“I haven’t had any contact with any members of the Bush team probably since”—and here he pauses a second to think about it—“in
a good twenty-four hours,” he reassures the world.

Democrats “have raised concern,” another reporter asks, “not just about both of you supporting George W. Bush, but about the
fact that you are electors, about the fact that Mr. Feeney ran with Jeb Bush in his unsuccessful bid for governor. How do
you convince the American people, whose votes are all at stake, that this is not partisan but a constitutional concern?”

“I think what they need to do is watch us,” says McKay. “The proof’s in the pudding.”

And what does house minority leader Lois Frankel think about all this?

“I think it would be naive to believe that the speaker of the Florida house and the senate president are really calling the
shots here,” she says. “I think that they waited as long as they could in hopes that the courts may have
decided in Mr. Bush’s favor or that Al Gore would have conceded. And that hasn’t happened, and I think what we see is just
them following through on something that they had predetermined.

“The only thing missing from the proclamation today was the postmark from Austin, Texas,” she says.

Bush spokesman Dan Bartlett’s lie about the Bushies’ coordination with the legislature has just been rebutted by no less than
Feeney himself. So
finally,
on December 8, thirty days after communications began between Feeney and the Bush team—on the one-month anniversary of Rubottom’s
communiqué with Jeb counsel Canady—Tucker Eskew acknowledges that Bush lawyers “provided legal interpretations when asked
by legislators.

“No one could be surprised by that,” Eskew adds. Indeed. Thanks for that.

The Martin County case has a few different shades of gray. As opposed to Leach, the Republican operative in this case is evasive,
responding, “I don’t recall” or “I don’t know” more than thirty-five times in his deposition. Additionally, the man Hauck
reported to, Martin County’s GOP committeeman, Charlie Kane, is a former CIA security chief. But in the end, other than the
fact that Hauck was permitted to actually remove the ballots from the elections office, the issues are the same, and the parties
assume the same rhetorical exchange.

Robert Harper, representing the Democrats, again preaches the Gospel of Hypertechnicalities, urging that the 9,000 or so ballots
be tossed, since absentee voting “is not a right, but a privilege.” Attorney Edward Stafman tells Lewis that previous case
law could have Lewis “throwing out all of the absentee ballots” as a result of the Republicans’ shenanigans, but if not, he
could at least go for some sort of proportionate slice—like removing 673 of the 9,000-some ballots. Which—
hey! Whaddaya know?!
—would also deliver the presidency to Gore.

Bristow counters that this is all nonsense. No vote should be tossed as a result of what was merely a “hypertechnical computer
glitch fix,” he says.

The Martin County case treads until 12:30
A.M.
Thursday, then picks up again seven and a half hours later before trudging to a close.

“By noon tomorrow I will have something,” Lewis says, “and I want to consult with Judge Clark, who has a similar case—similar
issues….But I hope at least by lunch tomorrow I’ll have something for you.”

And then Lewis and Clark go off into the wilderness to decide just what they’re supposed to do.

A bunch of the Bush lawyers and staffers convene for a nice dinner in one of the two upstairs dining rooms at Chez Pierre.
Unfortunately, an FSU fraternity mixer is raging in the other one.

Don Evans and Missouri senator John Ashcroft are special guests of the small group. They’re here to buck up the troops, thank
everyone. It’s almost over, they say. The end is near. But every minute or so, the door to their room opens and Evans’s and
Ashcroft’s words to the troops are drowned out by the sounds of Rick James’s “Superfreak”: “That girl is pretty wild now /
(The girl’s a super freak).”

One last dinner for the Democrats at the Governor’s Club Wednesday night. Klain isn’t here; he pulled an all-nighter the night
before, but Boies is, in his white turtleneck, one of the only variations in what seems to be a never-ending supply of the
exact same nondescript dark suit.

“Win, lose, or draw, we’ve accomplished some important things,” Boies tells the team. “People all across the country know
in their hearts that Al Gore won Florida. The facts are on our side, the law is on our side, and now it’s up to the court
to do the right thing.”