Down & Dirty (93 page)

Out of gas, Beck heads back to the Radisson to pass out.

In D.C., Daley gets word that the Miami-Dade undervote count isn’t going so hot. The standard the judges are using is pretty
tough.

No surprise. Daley always knew that if regular judges looked at the ballots—people who had never looked at a ballot in their
life, as opposed to
elections judges, who look at ballots, who have seen this shit—they’d be skeptical, they’d say, “What
is
this?”

The judges are really moving through those things, Daley’s told. And they’re not counting many for Gore at all. This thing
is much closer than some of the political people think. This thing is still going to come down to just a few votes, one way
or the other.

Klain’s on the phone with Gore, briefing him on how the recount’s going, when an assistant sticks her head in and tells him
that Andy Pincus, a Gore attorney in D.C. working on some of the U.S. Supreme Court briefs, is on the phone.

“I can’t talk to him,” Klain says, turning to Jeremy Bash. “Jer? Can you?” Bash picks up the phone.

“Hey, Andy,” Jeremy says.

“I need to talk to Ron,” Pincus says, sounding like he was just kicked in the stomach.
“It’s an emergency.”

“He’s on the phone with Gore,” Bash says. “He’s gonna have to call you back.”

“Jeremy,”
Pincus says.
“The Supreme Court just granted a stay.”

“Ron!” Bash shouts. “The Supreme Court just granted a stay! Andy’s on line six!”

“Hold on, sir,” Klain says, putting Gore on hold.

Daley was right, it
does
come down to just a few votes.

Five, to be precise: Rehnquist, Scalia, Thomas, O’Connor, and Kennedy.

They vote to grant the stay on the Florida Supreme Court ruling. The case is set for oral argument on Monday, December 11,
2000, at 11
A.M
.

And just in case Al Gore feels even the slightest bit confident, Scalia writes a totally unnecessary love note to Bush.“It
suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented,
believe that the petitioner has a substantial probability of success.”

Counting votes that the Bushies consider to be “of questionable legality does in my view threaten irreparable harm to petitioner,
and to the country, by casting a cloud upon what he [Bush] claims to be the legitimacy of his election. Count first, and rule
upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability
requires.”

Scalia’s note is written in reaction to Justice Stevens, who puts forward an atypical dissent. “To stop the counting of legal
votes, the majority today
departs from three venerable rules of judicial restraint that have guided the court throughout its history.” The SCOTUS has
always deferred to the state supreme courts when it comes to that state’s own laws. “On federal constitutional questions that
were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion,”
Stevens writes, a reference to the fact that the Bushies kept their main U.S. constitutional questions—like
McPherson
—out of the Florida Supreme Court so that they could bring them up before the SCOTUS.“The majority has acted unwisely.”

Moreover, Stevens says, any questions about the legitimacy of the next president will come precisely from the majority’s action.
“Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,” Stevens writes.

One of the myriad faxes Lewis receives is an order from the U.S. Supreme Court sent to him personally by someone calling himself
“William Rehnquist,” telling him to stop the counting. It’s on official-looking stationery and letterhead, and Lewis would
have bought it completely if it hadn’t named him personally, as opposed to the more traditional reference to the Leon County
Circuit Court.

This time, though, it’s different. He hears of the stay from CNN first. And though he doesn’t doubt the cable news network,
he wants something official before he orders the recounts halted. And he gets it. This time it doesn’t mention him personally.
This time it’s real.

Lewis has a mixed reaction. A lot of people had been working hard to make the recounts work. He was heartened by the response
of his Leon County judicial colleagues, most of whom willingly were giving up their weekend to make the Miami-Dade recount
work.

On the other hand, maybe the thing’s finally over.

Boies and Zack are at Andrew’s, finishing up lunch. On one of the TVs, news flashes across the screen:
11th Circuit Denies Stay.

“Of course they denied it,” Boies says.“How can you ever have ‘irreparable harm’ from counting legal votes?”

“I guess you can order dessert,” Zack says.

But within minutes, another TV, on another channel, has another headline.
U.S. Supreme Court Grants Stay.

“I guess we’d better go back,” Boies says.

“Please stop the machines, Mark,” says Ion Sancho, Leon County’s supervisor of elections.

Then: “We should start packing up the ballots. We’ve got to stop the recount. I don’t think it’s going to start again.”

In Hillsborough County, Elections Supervisor Pam Iorio hasn’t yet opened the first box of undervotes—there are 5,553 total—before
she hears word that the SCOTUS has stepped in.

“Just another day in Election 2000,” Iorio says with a sigh.

The crowd of GOP observers starts chanting: “Bush! Bush! Bush! Bush! Bush!”

In Pinellas County, the canvassing board is two hours and 224 ballots into reviewing its 4,226 undervotes. Gore’s up 2, Bush
1.

Computer expert Noel Poyntz flew from Miami to Jacksonville, Duval County, Saturday morning to install software to separate
the 4,967 undervotes from the 291,000 ballots. Poyntz had just finished, when the canvassing-board chairman, chief administrative
judge Brent Shore, gets paged by his wife.

He calls her back; she holds the phone up to CNN. Shore tells the rest what’s going on and leaves the room to hit the Internet
to find out more.

At around 2:45
P.M.
, word of the U.S. Supreme Court decision spreads inside and outside the Leon County Library like those glow-in-the-dark germs
in the movie
Outbreak.

“SOOOOOOOOORRREE loser,” the Bush protesters chant. “SOOOOOOOOORRREE loser.”

The Gore forces weakly cry back: “This is America! Every vote counts!”

At 2:59, Leon County court administrator Terre Cass pokes her head out to tell us what’s up. “All I can tell you is that we
are in recess right now until we can figure out what has happened,” she says. “The teams finished up the precincts they were
currently working on.” The judges have yet to receive official word from the SCOTUS, she says.

Inside, Reynolds is given the official word from Lewis. He tells everyone to stop counting. Maybe fifteen minutes later, Cass
steps to the podium.

Reporters scramble around her.

“OK, are we ready?” she asks.

We nod.

“We’ve just received a call from Judge Terry Lewis,” Cass says. SCOTUS has ordered a stay on the Florida Supreme Court’s Friday
decision.