Down & Dirty (89 page)

“The proof offered at trial failed to show that she [Goard] treated other political parties differently than she treated the
Republican Party,” Clark writes. “That the supervisor’s judgment may be seriously questioned and that her actions invited
public and legal scrutiny do not rise to the level of a showing of fraud, gross negligence, or intentional wrongdoing….Faulty
judgment is not illegal, unless the legislature declares it so.”

Lewis comes to essentially the same conclusions. Elections Supervisor Robbins clearly allowed violations of election office
protocol, but the same laws in question provide no remedy for such violations.And more important, Lewis writes of Martin County,“there
is no evidence of fraud or other irregularities in the actual casting of the ballots, or the counting of the ballots.”

Early afternoon on Friday, Leon County Court administrator Terre Cass reads the summary of both Clark’s and Lewis’s decisions.
“Based upon the evidence presented and in accord with the controlling legal precedent of the Florida Supreme Court, the trial
courts in both the Seminole County case and the Martin County case have determined that despite irregularities in the request
for absentee ballots, neither the sanctity of the ballots
nor the integrity of the elections has been compromised and that the election results—”

The Bush-backing crowd cheers. HURRAY!

“Hold on,” Cass says. “‘— and that the election results reflect a full and fair expression of the will of the voters. Accordingly,
all relief requested by the plaintiffs has been denied and judgment entered for the defendants.’ Thank you.”

A Bush press conference breaks out.“We are, of course, gratified with the two strong rulings from the two judges here on the
Leon County circuit court affirming the right to vote,” Ginsberg says. Quite wary of Clark before, Ginsberg now seems as though
he’s about to break into a chorus of “Ebony and Ivory.”

A reporter asks Bristow what he thinks about a comment Richman made, arguing that the state attorney should pursue criminal
charges against Goard.

“This is a very fine woman,” Bristow says, “and I think it is absolutely pure one hundred percent bogus.”

Do you regret trying to get Clark recused?

“Well, we—that was a motion to bring to her attention an issue, so that she could consider it,” Bristow says. “We never wanted
history to look back and have any second guess about this proceeding. She had it, she considered it; she decided that she
did not have an issue that would influence her. And as everybody on our team and every team knows, she handled this case in
a masterful way.”

Is this a final blow to the Gore campaign, in your opinion?

“We have one more case still pending,” Richard says, motioning toward the Florida Supreme Court. “A little matter down the
road.”

Florida Supreme Court spokesman Craig Waters finally has this all down to a science. Being fairly Web-savvy, he was already
ahead of the game when it came to preparation to put court materials on-line in the blink of an eye—he even set up a secondary
backup server for when the first Web site gets too much traffic, which it does. On November 13,
http://www.flcourts.org
scored
two thousand hits; by now they’re getting 3.5 million hits a day. His one mistake was to have included his cell phone number
on the site, resulting in all sorts of yahoos buzzing him in the middle of the night, urging him to tell the Florida Supreme
Court justices how to vote.

“The court today has issued its opinion in the case of
AlbertGore,Jr.,versus Katherine Harris, George W. Bush, and others,
” Waters says.“By a vote of four
to three, the majority of the court has reversed the decision of the trial court in part. It has further ordered that the
circuit court of the Second Judicial Circuit here in Tallahassee shall immediately begin a manual recount of the approximately
nine thousand Miami-Dade ballots that registered the undervotes.

“In addition, the circuit court shall enter orders insuring the inclusion of the additional two hundred fifteen legal votes
for Vice President Gore in Palm Beach County, and the one hundred sixty-eight additional legal votes for Miami-Dade.

“In addition, the circuit court shall order a manual recount of all undervotes in any Florida county where such a recount
has not yet occurred. Because time is of the essence, the recount shall commence immediately. In tabulating what constitutes
a legal vote, the standard to be used is the one provided by the legislature. A vote shall be counted where there is a clear
indication of the intent of the voter.

“Chief Justice Charles T. Wells and Justice Major B. Harding have written dissenting opinions. Justice Leander J. Shaw, Jr.,
has joined in the dissenting opinion of Justice Harding. Thank you.”

The patient has a heartbeat. Al Gore’s execution has been stayed.
^*

“It’s even better than I expected,” Boies says when he hears the ruling.

From reading the documents it is clear that Justice Wells didn’t just write a dissenting opinion. He wrote hate mail, a blistering
condemnation of his colleagues’ ruling, one that Baker reads from liberally soon after. The majority’s decision “cannot withstand
the scrutiny which will certainly immediately follow under the U.S. Constitution.” Wells stated that the decision has “no
foundation in the law in Florida as it existed on November 7, 2000.

“Prolonging the judicial process in this counting process propels this country and this state into an unprecedented and unnecessary
constitutional crisis,” he continues, a crisis that will inflict “substantial damage to our country, to our state, and to
this court as an institution.”

Baker immediately announces that his legal team is on the case. In Atlanta, at the Eleventh Circuit Court of Appeals, the
Bush legal team petitions for an emergency hearing. In Washington, D.C., the team will deliver an emergency petition to U.S.
Supreme Court justice Anthony Kennedy, under whose purview the eleventh circuit lies, to stay the Florida court’s
ruling until the eleventh circuit rules. The court’s “reasoning and result places the court once again at odds with the sound
judgment” of lower courts, the Florida legislature, and local canvassing boards, Baker said. He said the court’s decision
“could ultimately disenfranchise Florida’s votes in the electoral college.”

“This is what happens when, for the first time in modern history, a candidate resorts to lawsuits to try to overturn the outcome
of an election for president,” says Baker. “It is very sad—for Florida, for the nation, and for our democracy.”

Christopher listens to this.
Oh, please,
he thinks, finding Baker’s remarks over the top.

However much Baker may now love to quote Wells, he was but a dissenter; his four colleagues on the bench wrote the decision
that matters. And they think Gore is fundamentally right: there are votes that have yet to be counted.

“The Legislature has expressly recognized the will of the people of Florida as the guiding principle for the selection of
all elected officials… whether they be county commissioners or presidential electors,” said the four. “The clear message…
is that every citizen’s vote be counted whenever possible.” They seem most concerned about Sauls’s refusal to let Boies show
him even one ballot. It presented Gore with “the ultimate Catch-22,” they wrote,“acceptance of the only evidence that will
resolve the issue but a refusal to examine such evidence.”

They even sent out a footnote to their three colleagues, saying that “the dissents would have us throw up our hands and say
that because of looming deadlines and practical difficulties, we should give up any attempt to have the election of presidential
electors rest upon the vote of Florida citizens as mandated by the Legislature….We can only do the best we can to carry out
our sworn responsibilities to the justice system and its role in the process.”

Daley immediately heralds the court ruling as “an important victory for what has been Al Gore and Joe Lieberman’s basic principle
since Election Day, and that is a full and a fair count of all the votes.”

It’s a “victory for fairness and accountability and for our democracy itself,” Daley says, adding that the court “wisely”
ordered that the hand recount take place “in every Florida county where undervotes have yet to be counted. Then Florida and
America will know with certainty who really won the presidency.” Well, if that’s so wise, it would have been nice if Boies
hadn’t been arguing against it. But whatever.

Carvin’s cursing at his computer. The first time the Florida Supreme Court ruled, the clerks were nice enough to give them
a fifteen-minute heads-up, so they could log on before the rest of the world did, and download and print the ruling. This
time they got no such call. And the server is busy. Busy. Busy. For forty-five minutes Carvin can’t get on the site.

Finally he gets through. Downloads it, prints it out. He starts looking for the part that responds to the SCOTUS remand from
earlier in the week. Carvin’s been working on that part of the brief, anticipating their argument, and he wants to see how
close he came to guessing how they would justify their action.

But there’s nothing there.

Nothing about the remand. No response at all. They just ignored the Supreme Court of the United States. Who does that?! he
wonders. When a cop pulls you over for going sixty and you get off with just a warning, you don’t pull out and start doing
eighty-five!

“We won,” he says to himself. No way the U.S. Supreme Court doesn’t get involved now. George W. Bush has just sealed the presidency.

There are some who aren’t so shocked by Chief Justice Wells’s stinging dissent: those who know him.

“That’s a typical Charlie Wells dissent,” says former chief justice Kogan with a chuckle, when I ring him up. “This is not
something that is new. Read some of his decisions in capital cases, and you’ll find that’s what he does. He’ll be just as
strident, and he’ll take the whole court to task when they don’t agree with him.”

What of Wells’s warning of a constitutional crisis?

“That’s going overboard, way overboard,” Kogan says.“This republic has endured for over two hundred twenty-five years. I dare
say it’s going to last much longer than that. People have a way of healing very quickly.”

But what of the “substantial damage” he says the court will suffer because of its rather bold ruling?

“Oh, that’s just Wells,” Kogan says. “He says that a lot of times when he writes his dissents. It’s just the way in which
he does things. I don’t think they risked their credibility at all.”