Down & Dirty (97 page)

He’s not alone. Both the Bushies and the Gorebies have kept their observers scattered throughout the state of Florida, in
preparation.

Talked to Joe and Mindy and Mehlman this morning. This is what we want to do for press purposes. Mehlman is going to talk
to Joe about what they need for observation of counting purposes—that will have to be a much bigger operation than anything
we can handle out of our mini–press office. The following needs to be ready if the Court calls for a recount. If a larger
surrogate operation is put into place, we can fold these folks into that program as well.

We need to be prepared to cover the following major media markets in FL:

1. Miami
   
2. Palm Beach
   
3. Tampa/St. Pete
   
4. Orlando
   
5. Jacksonville
   
6. Tallahassee
   
7. Pensacola
   

Because Congress is in session, Governors and non federal surrogates should be the easiest to get.

Suggestions: in NO order of preference—All are retired or federal office-holders

Gov. Racicot

Gov. Pataki

Gov. Thompson

Gov. Engler

Gov. Whitman

Gov. Gilmore

Gov. Keating

Gov. Ridge

Sen. Alan Simpson

Ken Blackwell

Gov. Taft

Gov. Cellucci

Sen. Ashcroft

Howard Baker

Lynn Martin

Bob Dole

Elizabeth Dole

Lamar Smith

Susan Molinari

Gore calls speechwriter Eli Attie. He’s working on an op-ed for the
New York Times
about why it’s important that the fight be carried on, and he wants some help.

“How soon can you get here?” he asks him. Attie says he can be there in five minutes, but when he goes to catch a cab, he
realizes he’s out of money.
He goes to a money machine, but it’s broken. So he walks over. Since he’s now late, he decides to walk in the front gate instead
of the back.

Big mistake. Reporters have been calling Attie, a dozen a day, to see if he’s working on a concession speech. Attie hasn’t
been, really, though every now and then he sketches out an idea, unbeknownst to Gore. Now that he’s here, walking through
the front gate, however, reporters are convinced that he’s here to work on the concession speech. Attie runs in, fending off
ABC’s John Yang, among others. He hasn’t even arrived at Gore’s house before Gore senior aide Monica Dixon calls him on his
cell. “What are you doing at Gore’s house?!” she asks him. “I just got calls from five reporters asking me why you’re there!”

When Attie walks in, Gore greets him with a shake of his head. “You should’ve used the back gate,” Gore says.

Meanwhile, everyone in the world is wondering what the justices are up to. Speculation about political biases fills the air.
Does it matter that Scalia’s son works for Olson’s law firm? Or that Thomas’s wife is collecting résumés for the new Bush
administration? Or that Thomas himself owes his job to Bush’s pop? Or that O’Connor and Rehnquist clearly want to retire,
and clearly want to do so when a Republican is in the White House? Or that Ron Klain himself led the team that selected Ginsburg?
Or that she and Breyer were appointed by the Clinton-Gore administration? Maybe; who knows? It’s naive to pretend that the
justices aren’t as human as the rest of us, that their politics don’t play any role whatsoever in their decisions, just as
the Florida Supreme Court justices’ biases surely reared their heads on one or more occasions.

Rehnquist, Scalia, and Thomas are fired up against the Florida Supreme Court. They want to vacate this decision, too. They
feel that the Florida Supreme Court stepped on the legislature’s job. O’Connor and Kennedy no longer see it that way. But
they, like Souter and Breyer, do have equal protection concerns about the standardless, county-by-county way the ballots are
being analyzed. Of course, this potential problem was pointed out in the Bush legal team’s first argument, not to mention
in its brief before Middlebrooks, so they’re coming to terms with this issue a little late.

Ginsburg and Stevens don’t think that the SCOTUS should have ever even taken this case to begin with. The Court almost never
steps in to tell a state supreme court how to interpret their own law.

Souter and Breyer don’t want the Court to issue a ruling that can be seen as divisive, political. They suggest to Kennedy
and O’Connor that they all
try to fashion a solution to the equal protection problem, establish a standard, send the thing back to Florida, and have
them do it right. But Kennedy and O’Connor aren’t biting. They don’t think that there’s really any way to come up with standards.
They don’t trust the Florida Supreme Court to supervise a recount that will pass muster. What’s more, time runs out at midnight
tonight, the date that the Florida Supreme Court set—with Boies’s consent—as a deadline for any count to have been completed.

Soon Breyer and Souter leave the Supreme Court altogether. TV news networks show them buzzing out of the underground SCOTUS
parking lot.

Stevens thinks the whole equal protection argument is nonsense. The ballots of voters in counties that use punch-card systems
are more likely to be disqualified than those in counties using Opti-scan systems, he says.

Nonetheless, Rehnquist, Thomas, and Scalia—despite never having shown much interest in the issue—join with Kennedy and O’Connor
on the equal protection argument. They will reverse the Florida Supreme Court’s decision and send it on back to Tallahassee.
They—and their clerks—begin writing. Rehnquist, Thomas, and Scalia then write another opinion, overturning the Florida court
on 3 U.S.C. 5 grounds.

What the majority produces on equal protection will not be known as one of the better written, or more carefully reasoned,
arguments to come out of the Supreme Court. The precedents they use to back up their equal protection argument are questionable
at best. Sure, the argument can be made that county-by-county standards are unfair. But what of the clear votes—174 solidly
identified in Palm Beach, who knows how many else unexamined—that have yet to be counted, especially those in counties where
there is a higher rate of ballot spoilage due to punch-card ballots? Why is there any less of an equal protection argument
when one compares the overvotes of Lake County with the previously worthless overvotes of Volusia County, since discovered
in the hand recount and included in the final vote tally? What about the Jackson County overvotes fixed on Election Night?
How come there’s no equal protection problem comparing those with the 110,000 or so overvotes remaining in Florida? Thus,
given a choice between two potential equal protection violations, why not try to chart a course to find a solution? Or, if
one supposes that there isn’t enough time to chart a solution, why not defer to the plan the state supreme court already has
in place? These questions will never be answered satisfactorily.

Stevens and Ginsburg are furious. Stevens writes an angry—uncharacteristically furious—dissent. The federal questions in this
case “are not substantial,” he writes. “The Florida Supreme Court’s exercise of appellate
jurisdiction was wholly consistent with, and indeed contemplated by, the grant of authority in Article II.” The canvassing
boards’ “intent of the voter” interpretations are no “less sufficient,” nor did they “lead to results any less uniform than,
for example, the ‘beyond a reasonable doubt’ standard employed every day by ordinary citizens in courtrooms across this country.”

Moreover, Stevens writes, the majority’s thought process doesn’t even make sense. This recount isn’t being conducted correctly,
so we’re just going to put an
end
to it?! “Under their own reasoning, the appropriate course of action would be to remand to allow more specific procedures
for implementing the legislature’s uniform general standard to be established,” Stevens writes. “In the interest of finality,
however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their
intent—and are therefore legal votes under state law— but were for some reason rejected by ballot-counting machines.”

And then Stevens writes the paragraph that he will be known—both beloved and derided—for in perpetuity:

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence
in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.
Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only
lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women
who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that
confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete
certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It
is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

At least Stevens signs his blistering letter “I respectfully dissent.” Ginsburg’s doesn’t even come with the “respectfully”
(though, to be fair, this isn’t unprecedented for her). She points out that the SCOTUS has directed a state supreme court
on how to interpret its state’s own laws only three times that she can think of—in 1813, 1958, and 1964—the latter two times
being when southern states resisted civil rights laws.

Just last year, she says, a prisoner in Pennsylvania claimed that the state had been mistaken in its interpretation of state
law, and we sent it back to the Pennsylvania Supreme Court for help. “The Chief Justice’s willingness to reverse the Florida
Supreme Court’s interpretation of Florida law in this case is at least in tension with our reluctance in [that case] even
to interpret Pennsylvania law before seeking instruction from the Pennsylvania Supreme Court.” We’re always telling federal
courts to exercise a “cautious approach” to matters of state law. Why aren’t
we
being so cautious?

What’s more, Ginsburg continues, how can the majority argue that tonight’s deadline is the problem, when it’s the Court itself
that stayed the recount on December 9? There are at least three other dates that the Court could assume to be the deadline:
December 18, when the electors are set to meet, December 27, when Congress is to request certified returns from the secretary
of state if there still aren’t any electors for that state; even January 6, when Congress is to determine the validity of
the electoral votes.

Stevens, Ginsburg, Breyer, and Souter, however, are but four on a bench of nine. And without a fifth, they’re pretty much
guaranteed that any future colleagues, appointed by now-all-but-finally-declared-President-elect Bush, will keep them in the
minority for at least another four years.