Down & Dirty (90 page)

On November 8, Bush led Gore by 1,734 votes. The state-ordered machine recount brought this down to 357. On Wednesday, November
15, Harris’s partial certification put his lead at 300. Then absentee ballots brought the
margin back up to 930. After Broward County’s hand recount, the tally was then certified with Bush up by 537.

But the Florida Supreme Court has just ordered 157 votes from Miami-Dade and 215 from Palm Beach counted.

Bush’s lead has dropped to 154 votes.

One-hundred-and-fifty-four fucking votes! Yikes!

Even if you factor in the real number of votes Gore won in Palm Beach, that’s still a Bush lead of only 193. Who knows what
will be found in the 60,000 or so undervotes out there? Duval County went for Bush 57 percent to 41 percent—but Democrats
insist that many of the county’s 4,967 undervotes come from black precincts. A lot of the undervote counties are Bush counties:
Collier County with 2,082; Hillsborough with 5,531; Indian River County has 1,058; Lee County 2,017; Marion County 2,445;
Katherine Harris’s home county, Sarasota, has 1,809. But there are Gore counties in there, too. Pinellas County, which Gore
won by 15,000 or so votes, has 4,226; Pasco County 1,776; Orange County with 966; Osceola with 642…

Anything could happen. Anyone could win.

For the second and last time, Ron Klain actually thinks that Gore might really end up the forty-third president.

In Washington, D.C., the chieftains of the Gore team go out to celebrate at the Palm Restaurant.

Their underlings, and Bush’s, spend the night arranging for chartered planes full of hundreds of observers to zoom in at once,
to supervise.

Richman and Jacobs are appealing Seminole to the Florida Supreme Court. “Jesus Christ,” Daley says. A message is left with
Richman to call Daley. He wants to put an end to this nonsense. But Richman refuses to call him back. He calls Berger—a friend—instead.

“Tell them: the vice president wants to count votes,” Daley says to Berger. “He does not want to be
not
counting votes.”

This is the most difficult task of Berger’s whole experience. In his heart, he wanted Seminole to be part of the contest.
He thinks that the law was seriously violated. And Berger knows how hard Richman and Jacobs and Richman’s partner—and Berger’s
close friend—Alan Greer have worked on the case, essentially without their help. It’s actually a painful experience for him.
He thinks of himself as the Tom Hanks character in
Saving Private Ryan,
a captain doing what he’s told, sent off on a mission he doesn’t agree with. He meets with them and shares Gore’s thoughts.

“We can’t drop the case,” Richman tells him. “The only way we would even consider it is if Gore personally asks us to do.”

Richman still feels good, that if he looks the Florida Supreme Court justices in the eyes, they’ll do the right thing. Chief
Justice Wells is an old law school classmate of his. They simply will not be able to deny giving us relief, Richman says.
The disparate treatment is so clear in the record.

The Florida Supreme Court order for the undervote recount is shipped back to Sauls, but he isn’t going to have anything to
do with it. No, siree. Those liberal fools want to make up another law, fine, but he sure isn’t going to play a part in it.
Not when he doesn’t think it’s constitutional.

So Terry Lewis gets called back into the game and commences a hearing at 8
P.M.

Beck, who has been preparing to argue standards almost since he started on the case, scurries with his briefcase full of chad-related
notes back to circuit court. He says that he’s “concerned that this is a proceeding that’s fraught with peril constitutionally
and otherwise.”

Douglass, conversely, wants everything to start as soon as possible. There are going to be counties that aren’t going to do
a thing ’til they get a court order from Lewis telling them to do so. “That’s all that we have to offer, really, is to get
this going.”

Klock objects, of course. He objects to Lewis supervising the counting of the Miami-Dade ballots when they’re to be counted
by a three-person canvassing board, he objects to the overvotes not being counted, he objects to the fact that all the votes
aren’t being counted. He’s right about the overvotes, of course. But no one’s listening.

“This is how we believe you ought to proceed, Your Honor,” Beck says. “These votes or these ballots need to be evaluated using
a consistent standard, because if instead you let several people start evaluating ballots using a purely subjective standard
that varies from person to person, you’ve guaranteed yourself several legal problems.”

“Let me stop you for a second,” Lewis says again. “Didn’t the supreme court indicate exactly what standards apply?”

Not really, says Beck. “The supreme court said, look at the voter’s intent. And what we had was a two-day trial, and much
of the evidence went to how one would ascertain voter intent from indentations and dimples on a ballot. And so we have a wealth
of evidence on that, Your Honor, and unfortunately Judge Sauls has recused himself. And so we’re frankly going
to need to educate you.” We’re going to put together a presentation tonight and maybe show it to you tomorrow, Beck says.
Keep slowing it down.

Lewis now comes face-to-face with one of the complaints Olson, Carvin, et al. filed in their complaint to Middlebrooks way
back when. “What’s the legal standard in Florida for determining” the intent of the voter? he asks. After Beck refers to the
1990 Palm Beach County standard, Lewis asks,“was that a statewide standard?”

No, Beck says. He catches himself on one of the Bush campaign’s own right-hook, left-hook combinations. He says there is no
legal statewide standard, then says that coming up with a new one would be changing the rules in the middle of the game.

“You’re confusing me,” Lewis says.“I thought you said there was no standard, so how can I change it?” Regardless, “the standard
is what the supreme court says it is, because that’s what I’m bound by.”

“What I think you ought to do, Judge, with the other counties… is tell these counties that job number one is to segregate
the undervotes in a way where they keep records, accurate records, this time around, of how many votes are being recorded
for Bush and how many are being recorded for Gore and how many are being recorded as undervotes.”

The Gorebies think Beck is stalling. “We think the court meant immediately when it said immediately,” Boies says.“Hours make
a difference here.”

Beck doesn’t see it that way. He tells Lewis that he’s being “cooperative.” They don’t want the counting to occur, but if
it does, they want it to be sound. They want it to be able to pass constitutional muster. Their field guys—Mehlman, Enwright—insist
that with their idea of a real standard, Bush will win, even statewide.

But Beck also wants this standard reapplied to Gore votes he thinks are sketchy. The Broward County surge, for example, should
be reexamined. He also suggests that when Lewis supervises counting the Miami-Dade undervotes tomorrow, he should start all
over again since the 20 percent that were counted were done so with a loose standard, and at the very least a different standard
from the one Lewis will probably use. Otherwise,“a lot of Hispanic voters who tended to vote Republican in this last election
are going to have their votes evaluated under a standard that’s different than was used for the Democrats. That creates big
problems under the Voting Rights Act for a protected group like Hispanic-Americans.”

But Lewis is not going to take Beck’s advice. He wants the Miami-Dade ballots to be counted starting at 8
A.M.
tomorrow at the local library; he puts
out word to Leon County judges that he’d appreciate their help. The other sixty-three counties have until 2
P.M.
Sunday to finish and by noon Saturday to fax him information on what their plans are. He gives out his fax number on international
TV; big mistake. Faxes start humming in from all over. Cartoons. Angry letters. Jokes about chad and Palm Beach County voters.

Beck continues to talk about standards. About hanging chad. About patterns. About how just dimples cannot be considered votes.
On and on. He agrees that if all the votes on the ballot are just dimples, that should count as a vote, but he asks Lewis
to check out any questionables.

Lewis, of course, has seen that the Florida Supreme Court has begged off the opportunity—not once, but twice—to set standards.
He’s certainly not going to infer that they want
him
to come up with something. But Beck’s not even talking to Lewis anymore. He figures that canvassing-board members have their
TVs on and are watching, and worrying, and wondering what the hell they’re supposed to do tomorrow, what standards they’re
supposed to apply. He’s hoping that they’ll take his advice. After all, he’s the only one offering any. And even if they’re
not watching, well, he’s confident that a U.S. Supreme Court justice or two might be watching the Phil Beck show right about
now.

I
t’s 6:22
A.M.
Saturday morning, and I’m on my way back to Tallahassee. My cab driver is from St. Lucia, and he doesn’t understand just
what the hell’s going on with the elections here.

“It is much simpler there,” he says of voting in St. Lucia. “It is one man, one vote. We count all the votes by hand.”

St. Lucia stands in stark contrast with St. Lucie County, Florida, this morning. In St. Lucie County (Bush 34,705, Gore 41,559),
there are 537 undervotes that have yet to be inspected. According to my cabbie, at least, that never would have happened in
St. Lucia.

There are three Democrats on my plane into town—two from Boston, one from D.C.—all of whom have been asked by the Gore recount
team to fly down to the Panhandle and help supervise the statewide hand recount of the undervotes. After the connecting flight
from Atlanta lands in Talli, about a dozen Democrats converge near the Avis rental car counter, where they are given car keys
and instructions on where to drive. As with teams of Republicans, they’re being farmed out to supervise the recount efforts
across the state, from Pensacola to Naples.