Down & Dirty (88 page)

I
t’s Last Call at the Last Chance Bar & Grill.

“Hear ye, hear ye, hear ye!” bellows the marshal. “The supreme court of the great state of Florida is now in session! All
who have cause to plea, draw near, give attention, and you shall be heard!” And indeed, David Boies once again draws near
and gives attention, explaining Al Gore’s cause to plea.

But before he can do so, Chief Justice Charlie Wells has a bone to pick. Last time they all were here, no one said a lick
about the U.S. Supreme Court case
McPherson v. Blacker.
But then they went off to the SCOTUS, and
McPherson v. Blacker
was all the rage.

Boies insists
McPherson v. Blacker
shouldn’t mean anything to Wells, because in Florida,“the legislature has provided this court with the authority to interpret
these laws.” What’s more, Boies says, it’s true that the legislature has the “power to determine the manner of the selection.
I don’t think they’ve got the plenary power to determine the time of choosing.” That power was left up to the U.S. Congress,
which picked November 7, so clearly it’s the election
method,
not the schedule, that the legislature has discretion over. (As has been the case throughout this mess, when federal law
works, that’s the way the Gorebies or Bushies will argue. If state law can be read in their favor, they’ll go state. When
it comes to consistently choosing one or the other, both sides have dimpled chad.)

Despite Boies’s assurances, Wells is clearly fired up, almost like he’s mad at what Boies talked him into doing last time.
“What you’re asking this court to do is to have the courts of this state get involved in any instance in which someone comes
in and merely alleges that there needs to be a
count…. Someone would say they lost by one hundred thirty thousand votes in Dade County, and we’d have to have the court count
those votes.”

Boies, of course, sees it differently. “This is not a situation in which somebody has simply come in and said, ‘We’ve lost.
We’d like to have a recount under the contest statute.’ This is a situation in which we have identified specific votes, many
of which were agreed by the district court were votes in which you could clearly discern the voter’s intent.” He lays them
out, including the nonexistent 215 Palm Beach County votes, citing John Ahmann, who “testified that you had to have a manual
recount in a close election” if you use punch-card ballots.

So why not hand-recount all punch-card ballot counties instead of just those three? Quince asks.

Boies’s answer is no more satisfactory to Quince than it is to many of us. “That’s where ballots were contested,” he says.

“Did anyone ever pick up one of the ballots and hold it up and show it to the judge and say, ‘This is an example of a ballot
which was rejected but [on] which a vote is reflected?’” Harding asks. Boies says no. Boies says, “although we did tender
them in evidence and we did ask him [Sauls] repeatedly to look at the ballots as part of the evidence.”

This is one of the central thorns the Bushies have snared the Gore lawyers’ britches on. From the get-go, the Gorebies had
asked Sauls to look at the ballots, to examine them, so he could see that there were uncounted votes. (Not that Boies thought
he needed to do so—to him, the mere fact that so many votes had been found in the 20 percent of the 10,750 Miami-Dade undervotes
that had been counted indicated that there were votes in the other 9,000.) But every time the Gore legal team tried to get
Sauls to take a gander, the Bushies made the argument that Richard makes today, when asked by Justice Anstead if Sauls examined
the evidence: “I think there was no basis in law for the trial court to do that until after the plaintiff had carried its
burden of proving that there was some necessity to do so.” That is, until the Gore lawyers proved the undervotes contained
votes, Sauls had no need to examine the ballots. But until Sauls examined the ballots, it was impossible to prove they contained
votes.

Richard (who is the main man today; Carvin’s up in Washington, D.C., working with Olson and the other constitutional lawyers,
preparing the brief for when the Florida Supreme Court responds to the SCOTUS homework assignment from Monday) immediately
agrees with Justice Wells’s take on
McPherson.
“This court does not have the ability in this particular
case, involving presidential electors, to disregard the statutory scheme and fashion a remedy based upon extraordinary equitable
powers of the court set forth in the constitution,” Richard says.“The legislature… has given us five, and only five, grounds
for an election contest, and one of them is not that there is a close election in which Votomatic machines are used.”

When the Third District Court of Appeals rejected the Gore team’s Wednesday, November 22, writ of mandamus to force the Miami-Dade
canvassing board to continue its hand recount, the DCA judges did so because they felt unable to compel someone to accomplish
the impossible. But the Third DCA also made mention that while the canvassing board had the discretion to order a hand recount
or not, it did not have the discretion to stop in the middle of the process. When Miami Bushie Bobby Martinez read that section,
he winced. He thought it gratuitous, thought it might come back to bite the Bushies in the ass. And here it comes.

The DCA found “that they did have a mandatory obligation to continue the count,” Anstead says of the Miami-Dade canvassing
board. “How can we overturn that ruling?”

“This court also said you must have votes by November 26,” Richard replies, throwing the court’s own fabricated deadline back
in its face. “And the canvassing board, having made the decision it was impossible, had two choices. One was to not continue
the count. And the second was to send up a partial count, which, according to the evidence before the board, would not only
have cut off a substantial number of precincts that might have been significantly different from the result, but also would
have disenfranchised a particular minority within Dade County.

“They have not met their burden of proof,” Richard insists. “The only thing they did was put two witnesses on the stand to
say that they were speculating that Votomatic machines are inherently unreliable. And so, in essence, what Mr. Boies is saying
to this court is any time there’s a Votomatic machine in a close election and somebody says count all the ballots, you must
do so.”

A supreme court case is like an amusement park game in which you have to knock down the bare majority of cans. They need four
here. And Justice Leander Shaw, Jr.—Florida’s first African-American chief justice (the chief justice position rotates)—doesn’t
look like a can that Boies can knock down. Shaw speaks only three times, but every time, it’s to talk about Sauls, and the
fact that he found “that there was no credible statistical evidence and no other competent, substantial evidence to establish
by a
preponderance of a reasonable probability that the results of a statewide election in the state of Florida would have been
different.”

Boies tries to argue that Sauls made three errors of law, but even Al Gore, watching on TV hundreds of miles away, can see
that Shaw’s a lost cause.

As is Wells. On rebuttal, Wells makes his displeasure even clearer. How could Miami-Dade have been counting only its undervotes?
That’s not what the law says. “Shall recount manually, recount all the ballots,” Wells says, quoting the statute. “That would
definitely be a change in the law.” You can tell he’s bitter about all the cries that his court is made up of crazy liberal
activists. Wells was once talked about as a possible senator, governor. Now
this
is his legacy.

Boies says that it’s possible to interpret the law a different way, manually recount all the ballots that have been requested
to be recounted. “And they stopped only because they didn’t have time,” Boies adds, forgoing the allegations of Miami-Dade
“intimidation.”

Pariente asks, “In terms of the remedy… what is the time—we’re here today, December seventh—what is the time parameter for
being able to complete a count of those undervotes?” And how much time does it take to count undervotes?

“The record shows that the canvassing boards were doing about three hundred an hour,” Boies says.“That was obviously slower
than it would be if it were being done by one judicial officer. We believe these ballots can be counted in the time available.
Obviously, time is getting very short. We have been trying to get these ballots counted, as this court knows, for many weeks
now.”

Anstead has one last question for the Gore team, about “the problem that continues to reoccur in the case of not having recounts
in other counties where the same voting mechanisms were used and where there may have been undervotes, but that the proportion
of votes, for instance, may have favored your opponent.” Not only that, but there are five days until December 12—the date
that, during the first Florida Supreme Court arguments, assistant attorney general Hancock had asserted, and Boies had readily
agreed, is the deadline.“How can we resolve an issue like that at this late date?”

Boies says,“There’s never been a rule that says you have to recount all the ballots in an election contest.”

“Thank you, Mr. Boies,” Justice Wells says. “I think your time is up.”

How’d it go? How’d it go?

Very few in the Florida legal community seem to think the Florida Supreme Court is going to rule for Gore. Daley doesn’t think
so, either. Gore is more optimistic, though he’s ruled out the votes of Shaw and Wells. Boies and Terrell go to dine at Andrew’s
Capital Bar and Grill—one suspects Boies didn’t order the “Jeb-burger”—and they agree on one thing: the court will be split
4 to 3. They just disagree on which side will get the swing vote. Richard thinks he’s going to win, maybe even 5 to 2.

In Austin, Bush is continuing as he’s instructed. The self-coronation goes on. In addition to picking his cabinet, Bush has
a lot of homework to do. This has been a frustrating thing for some of his advisers; Bob Zoellick and Condoleezza Rice have
lost their patience with Bush in the past: he’s unwilling to read a memo longer than a page. “General Powell and I discussed
the Middle East,” Bush says on Wednesday. “Condi [Rice] and I are in constant discussion about the Middle East. And what concerns
me is peace.”

Yowza. On Friday, Bush opens the governor’s mansion to the press again. In a small room called the conservatory, Bush sits
at a small table with Karen Hughes, Karl Rove, and Andy Card. X-mas decorations about; one has Santa twirling a lasso.

“We’ve just been in a conference call with our folks in Washington and continuing making progress on the White House setup
and just had a long discussion with Secretary Cheney and [gubernatorial chief of staff] Clay Johnson about potential cabinet
officers,” Bush says. “I also had a good visit with Jimmy Baker today. Our folks in Florida anticipate a decision, and they
feel like our lawyers made a good, strong case….We are hopeful that we’ll finally see some finality when it comes to this
election….We’re prepared to, if need be, take our case back to the Supreme Court. But I hope that doesn’t have to happen.”

Have you finalized White House staff?

“I haven’t decided on a couple of them,” he jokes, casting sidelong glances at Rove and Hughes. “I don’t know whether or not
they can pass the background checks, if
yaknowwhatImean.
” Big yuks all around.

Lewis and Clark spend Thursday conferring, talking about their interpretations of the law, how they’re going to rule.

This is exactly what Gerald Richman was worried about when he heard Lewis say that he was going to consult with Clark. Lewis
is more conservative than Clark, he thinks. Is he going to sway her views? Of course, in
many ways, this is in the same neighborhood as the attitude of the Bushies who assumed she was going to march lockstep with
whatever Rev. Jackson wanted her to do.

Clark, in fact, is decidedly not doing so, she is ruling on the law. Both Lewis and Clark are leaning heavily on the 1976
Florida Supreme Court precedent
Boardman v. Esteva,
^*
one of Boies’s favorite cites when he was arguing for an extension of the certification deadline. Boardman argues that when
voters are in substantial compliance with the law, their votes should be heard—with that value paramount, that “courts are
to overturn” elections “only for compelling reasons when there are clear, substantial departures from essential requirements
of law.” Which does not seem to be the case here.