Down & Dirty (95 page)

The Bushies are livid. First of all, they think that “58” number is utter bullshit. It may have been real a few hours ago,
before the Miami-Dade recount at the Leon County Library hit the Latino precincts, but when the SCOTUS stopped the count,
the Bushies’ numbers had their man in the lead.

Moreover, they had told their observers to keep the numbers quiet; they had argued before Lewis that the numbers needed to
stay secret until the very end, and Lewis’s ruling indeed stated that “no partial recounts shall be reported, either formally
or informally.”

Some of the younger lawyers—ones Beck would later describe as “hot-heads”—want to bring Klain and Boies before Lewis on contempt-of-court
charges. Older, more seasoned lawyers agree to an emergency motion that will shut Boies and Klain up, though nothing as harsh
as a formal contempt motion. Besides, they have an idea of Lewis’s MO by now, and the even-keeled author isn’t going to hold
anyone in contempt for one
ambiguous line he wrote in his motion late at night. It wasn’t even part of the oral complaint Lewis issued. Let’s not get
crazy here, they say.

So at 5:03
P.M.
, Jason Unger files an emergency motion, complaining that Boies and Klain “are in violation of this Court’s Order… in that
they are reporting, formally or informally, partial counts.” They “must cease and desist immediately,” says the complaint.

Klain’s still pissed off—and a little anxious. He understood the gag order to have applied to canvassing boards, not parties
in the legal dispute. It seems nonsensical. The counts were in public, AP was reporting the results every hour. And he considers
the motion to be close enough to a contempt charge to be insulting.

Truth is, Lewis did mean it to apply to everyone. He was trying to avoid a circus-like atmosphere, with press conferences
every three minutes. He’s not going to take any action against Klain; the order was pretty vague, whatever. Still, as a matter
of policy and protocol, he reminds the Gore team that it would be better for them not to report the partial totals anymore.
Not that it matters.

Democrats will forever wonder what would have happened had the SCOTUS not stepped in and stopped the count. There are two
reasons why they shouldn’t. One: the Florida Supreme Court’s order to count the undervotes, without counting the overvotes,
was wholly without logic. If the intent of the voter can be discerned in the approximately 65,000 undervotes, then there is
no reason why the 110,000 overvotes shouldn’t have been given the same opportunity. The Florida Supreme Court order, therefore,
was based on a faulty comprehension of what any real attempt to truly get to the bottom of the matter would entail. As the
experiences in Gadsden, Jackson, and Volusia Counties proved, there were clearly discernible votes in the overvotes.

Second, the “58” number that Jenny Backus told Klain to use at the press conference shortly after 4
P.M.
was complete bullshit.According to the spreadsheets put together by the Democrats’ numbers guy, Achim Bergmann, at no time
during the day was Gore up 58 votes. Before Klain and Boies went out to speak to the press, the numbers Bergmann had in his
computer had Gore up 31 votes (+3 in Escambia, +2 in Highlands, +1 in Liberty, +2 in Madison, +2 in Manatee, +10 in Okechobee,
+18 in Orange, +4 in Osceola, –1 in Collier, –3 in Desoto, –3 in Pasco, –1 in Pinellas, and –3 in Suwanee). This may be a
net gain, but it is not 58 votes, leading one to the conclusion that the “58 votes”number was invented out of whole cloth.

Moreover, the numbers that came in to Bergmann subsequent to the Boies-Klain press conference showed Gore losing votes, so
that Bush was actually ahead by 15. (Gore registered –44 in Miami-Dade, –1 in Flagler, –5 in Okaloosa, –8 in Santa Rosa, +7
in Franklin, +2 in St. Lucie, +1 in Taylor, +2 in Wakulta.) As throughout the whole fracas, those Gore backers looking for
reassurance in their hopes for the Gore strategy would be advised to steer clear of the hard numbers and concrete facts.

Boies wants to argue the case before the SCOTUS. He doesn’t want Tribe to do it, he wants to do it. And he’s not alone.

It’s a real debate, because Tribe is one of the most esteemed Supreme Court attorneys alive, while Boies has argued before
the SCOTUS only once before. He lost the decision, 9 to 0. And he was arguing against Tribe.

Klain and Daley think that Gore should stick with Tribe. This is his terrain. But Boies has his backers, too: Christopher
and Gore’s brother-in-law Frank Hunger. And, ultimately, Al Gore. Gore makes this decision based on the fact that the case
will probably revolve a great deal around Florida law, which Boies now knows cold. Also, Gore feels that Boies deserves it—he
poured his heart and soul into the case, has been on the ground in Tallahassee since that second week. Rightfully, personally,
emotionally this is Boies’s case, Gore feels. Not that it’s not a close call. As Klain puts it, it’s like choosing between
Magic Johnson and Larry Bird. Christopher sits Tribe down and tells him that he’ll be on the bench Monday.

Unless they’re permanent Supreme Court reporters, journalists are assigned fairly crappy seats at high-profile oral arguments.
Not that we won’t take them; hey, we’re happy to be there. But we’re thrown together in rows of cheap chairs wedged behind
immense gray columns. If you’re lucky, you can see two justices at a time. It’s my luck that I see the two whom everyone’s
watching: Kennedy and O’Connor.

While all the other legal cases in the Florida fracas have had names like
Volusia County canvassing board v. Katherine Harris et al.
and
George W. Bush and Richard Cheney v. Palm Beach County canvassing board et al.,
today’s showdown finally has the right name:
Bush v. Gore.
Throughout the ninety-minute hearing—thirty-five minutes for Olson, ten minutes for Klock, forty-five minutes for Boies—O’Connor
and Kennedy hold their heads in their hands. Perhaps they’re just trying really hard to concentrate. But it looks as though
the burdens of their pending decisions are literally weighing them down.

They offer conflicting clues. Democrats take heart in the fact that Olson’s only 125 words into his opening argument when
Kennedy grabs the Achilles’ heel of his case. “Where’s the federal issue here?” is the first question of the day.

Kennedy and O’Connor both seem skeptical of—or at least reluctant to embrace—Olson’s proposition that this is just
obviously
a federal issue. But both also seem concerned that the county-by-county judgments of ballot standards might violate the equal
protection clause of the Constitution.

“Can you begin by telling us our federal jurisdiction?” Kennedy asks.

O’Connor soon chirps up. “I have the same problem Justice Kennedy does, apparently,” she tells Olson. Article II of the Constitution,
which sets out the rules for assigning electors, “certainly creates a presumption that the scheme the legislature has set
out will be followed, even by judicial review in election matters. I would have thought that that would be sufficient,” O’Connor
says, rather than to make a federal case out of it.

Olson replies that “there is a breakout with respect to various aspects of Florida statute and Florida election law. There’s
a specific grant of authority to the circuit courts. There’s no reference to an appellate jurisdiction.”

“It may not be the most powerful argument we bring to the Supreme Court,” Olson allows.

“I think that’s right,” Kennedy says, to laughter from the crowd.

At the previous SCOTUS hearing, it seemed a majority of the justices were concerned the Florida court had rewritten the law,
while at the same time a majority also seemed skeptical that this was a “federal issue” that warranted a federal court’s meddling.
Its subsequent unanimous ruling, which asked the Florida court to better justify its action based on Florida law, seemed a
reasonable middle ground, one that kept them—for the time being—from entering the political fray. There are no such options
here. The ticktocks from Tallahassee are deafening, and the very fact that the Court put a stop to the manual recount of Florida’s
approximately 65,000 “undervotes” seems to indicate the SCOTUS’s serious disapproval of its Sunshine State counterparts.

Olson refers to Friday’s ruling by the Florida court as “a major, major revision” of Florida law.

Stevens takes issue with that, asking why Olson’s arguments“rely very heavily on the dissenting opinion in the Florida Supreme
Court” by Florida chief justice Wells. Who cares what Wells wrote in his one-man dissent? Stevens asks.“Which opinion do we
normally look to for issues of state law?” he asks.

More important, Olson is asked by Breyer, if the Court were to allow the recounts to continue, “What in your opinion would
be a fair standard, on the assumption that it starts up missing the twelfth deadline but before the eighteenth?”

Olson doesn’t really have an answer for this, except to say that he would hope that the standard would be uniform. “At minimum,
Justice Breyer, the penetration of the ballot card would be required,” he says. When asked, he seems perfectly willing to
let Harris set a standard. This apparent hypocrisy—Olson giving a rah-rah to the idea of Harris setting a post-election standard
while objecting to the Florida court’s post-election rulings, saying the court changed the rules after the game—gets Ginsburg’s
back up.

“You have said the intent of the voter simply won’t do. It’s too vague, it’s too subjective,” she says. “But at least those
words, ‘intent of the voter,’ come from the legislature. Wouldn’t anything added to that be—wouldn’t you be objecting much
more fiercely than you are now if something were added to the words that the all-powerful legislature put in the statute?”

Florida statute, after all, allows for “the circuit judge” to “fashion any order he or she deems necessary to prevent or correct
any wrong, and to provide any relief appropriate under the circumstances,” she says.“I couldn’t imagine a greater conferral
of authority by the legislature to the circuit judge.”

Olson is also taken to task by the left wing of the Court after he asserts that “undervotes” are actually not votes, since
the machine didn’t read them as such.

“As to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn’t pick up,
the majority of the Florida Supreme Court says you’re wrong,” Souter says. “They interpreted the statute otherwise. Are you
saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled
in effect, to the presumption of reasonable interpretation under Article II?”

“Yes, that is our contention,” Olson replies.

“Very well, Mr. Olson,” Rehnquist says.

Klock approaches the mike to give us a few moments of levity. The somewhat-unpolished lawyer twice refers to justices by the
wrong names. He calls Stevens “Justice Brennan,” a reference to the legendary jurist who died in 1997. He’d done this in his
practice moot courts, too. Klock, an active University of Miami Law School alum, used to see Brennan periodically when the
justice would come down to Miami during the winters. Brennan would set up dinners, meetings, and Klock got to know him a bit.
And for some reason, Stevens reminds him of Brennan.