Down & Dirty (98 page)

Legal correspondents are on TV even before they’ve had a moment to read a page of the majority’s complex ruling, penned by
Kennedy. Live, skimming pages, they stumble on telling passages.

“The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with
its obligation to avoid arbitrary and disparate treatment of the members of its electorate,” reads one passage. “The problem
inheres in the absence of specific standards to ensure its equal application.”

In Washington, one of Tribe’s protégés, Tom Goldstein, is faxing the decision to Tallahassee, where Bash runs each page, one
by one, from the fax machine to Ron Klain, who has two phones going—Boies on one, Gore on the other. Klain reads the pages
aloud. They’re trying to figure out what this muddled mess means.

“This is a crazy opinion,” Klain says. “There must be something missing.” He tells Bash to make sure all the pages are there.

There is no standard, the majority writes. And “[t]he want of those rules here has led to unequal evaluation of ballots in
various respects….As seems to have been acknowledged at oral argument, the standards for accepting or
rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team
to another.”

In the Bush Building, the Bush lieutenants—Ginsberg, Terwilliger, Van Tine—are all in General Baker’s office. In an effort
to psychically force the Supremes to issue a ruling, earlier in the day, Don Evans and Ginsberg had even taken a walk to get
their shoes shined, hoping that by being out of the office and away from the TVs, the Court would have no choice but to rule
at that very moment. It didn’t work, but here it is. They’re trying to figure it out. The decision’s complicated, and each
channel they turn to has a different take on what it all means. Evans is on the cell phone with Bush. “Find Olson,” Bush tells
him. “Find out if we won.”

They get him. Olson says yes, they won,

“Congratulations, Mr. President-elect,” Baker says to Bush.

The majority opinion goes into the record as established at the Sauls trial. King, Lehr, and Leahy all using different standards.
Palm Beach County changing its standards twice—the 1990 standard, then the Sunshine Rule, then the 1990 standard again—during
the 1 percent recount on Saturday, November 11. “Then the board abandoned any pretense of a per se rule, only to have a court
order that the county consider dimpled chads legal.” Miami-Dade’s undervotes were counted differently midstream. Broward’s
standards differed from Palm Beach’s, the former using “a more forgiving standard than Palm Beach County, and uncovered almost
three times as many new votes, a result markedly disproportionate to the difference in population between the counties.” Recounts
in Broward, Miami-Dade, and Palm Beach were not just of undervotes, but of all the ballots—but the Florida Supreme Court ordered
a statewide recount of just all the undervotes. And what of the 110,000 overvotes?

“This is not a process with sufficient guarantees of equal treatment.”

The SCOTUS majority make the motions about how, in a perfect world, they could correct this problem instead of just giving
the presidency to Bush. In order to do it and not violate equal protection or due process, standards would have to be established
statewide—complete with arguments, procedures for implementation, judicial review.

“That sounds like a devastating paragraph for Vice President Al Gore,” NBC anchor Tom Brokaw suggests to correspondent Dan
Abrams. “They’re saying time has run out. We can’t come up with a standard, nor could we review it in time to resolve all
of this. Would that be a correct reading, Dan?”

“Tom, I can’t answer that question quite yet,” Abrams says.

The majority opinion goes on, outlining what they’d have to do to get a legit hand recount going. The voting machines would
have to develop programs to screen out the undervotes. And the overvotes. Harris would have to evaluate the accuracy of the
software. And it is here, in this graph, that the answer seems to lie. Because Florida statute “requires that any controversy
or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us.”

Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have
discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.

Klain pauses after he reads this.“Sir,” he says to Gore,“ I think this means you’re hosed.”

He turns to the rest of the lawyers in the room. “I need everyone to leave the office. Now.”

Brokaw interviews DNC chair Ed Rendell. “Do you think that it’s time for Vice President Al Gore to concede, Mr. Rendell?”

“Oh, I think he will concede, Tom,” Rendell says.

Inside the DNC, Democrats are booing their chairman.

Inside NavObs, Gore is angry and incredulous. How could Rendell,
the DNC chairman,
have just said that?! Relations between the Gore campaign and the former Philly mayor have always been tense—the feeling’s
been that Rendell’s too much of a loose cannon, not loyal; he wasn’t much help during the primaries. As if Gore needed more
reason to dislike him, here he is calling for Gore to concede on national television!

Brokaw tries to get Tribe to say the same thing, but twice he demurs until he’s read the opinion. Finally he gets his hands
on a copy, and he joins Rendell.

“I’m sure that Vice President Gore has the kind of reverence for the Supreme Court as an institution that he will not really
undertake to be less than complete and gracious in his acceptance of this result,” Tribe says.

Not that Tribe’s happy about the decision. “As I teach it to my students over the years, I’m going to be rather critical of
what the Court did, both in terms of some of the legal reasoning and in terms of the institutional performance, having so
precipitously stopped the recount dead in its tracks, now to say in effect, ‘We’re shocked, we’re shocked that it can’t be
completed
by midnight on December twelfth,’” Tribe says to Brokaw. “It does come across as not entirely convincing. And to be divided
seven to two is somewhat misleading, because it’s five-four on some of the critical issues. To be divided closely on the one
instance in American history where the Supreme Court chooses the president rather than the other way around is not likely
to sit well over time either with the American people or with historians. But I think the Court’s place in our lives is such
that we should all rally around, even if we disagree with the result.”

Klain yells at Bash, “Tell Larry Tribe not to say Gore should concede!” Bash calls Tribe, delivers Klain’s message.

“CNN still has up on the screen ‘Tribe says Gore should concede’!” Klain yells. Bash calls the CNN assignment desk, delivers
Klain’s message.

Klain calls in Douglas Hattaway and Jenny Backus. Take a deep breath, he tells them. Relax. We’re not sure what’s going to
happen yet.

President Clinton is sleeping at the Belfast Hilton Ireland when all this comes down. His aides decide not to wake him. This
has been such a nice trip for the president. The negotiated peace in Ireland is one of his greatest foreign-policy accomplishments.
He’d spend the earlier part of the day in the Republic of Ireland–Northern Ireland border town of Dundalk, where sixty thousand
greeted him so enthusiastically, so effusively, in a way Americans just haven’t since the whole Lewinsky thing.

“Why wake him up in the middle of the night just to tell him bad news?” asks White House deputy chief of staff Steve Richetti.

The next morning, at 8:15 or so, a bunch of senior White House staffers are meeting in the lounge area of the senior staff
room, running through the day. There’s Richetti, and national security adviser Sandy Berger, White House counsel Bruce Lindsey,
and press secretary Jake Siewert. They’re preparing for the day, preparing to debrief the president. He’ll have a meeting
later with individuals who, four years ago, wouldn’t have even sat in the same room with one another—namely Sinn Fein’s Gerry
Adams and Ulster Unionist leader David Trimble.

Doug Band, the president’s aide, calls Richetti. “The president needs to see you right away,” he says. Clinton just heard
about the Supreme Court’s decision.

Oh boy.

Richetti, Berger, Lindsey, and Siewert make their way up to Clinton’s suite. There are already three or four copies of the
decision there by the time they arrive. Clinton’s leafing through one of them. He’s in a full state of outrage.

“It’s an incredibly political decision,” the president fumes. He points out that the majority decision was issued per curiam,
issued on behalf of the Court instead of signed by any justices in particular—kind of an odd thing to do, being that there
were four such strong dissents. “No one wanted to sign the thing!” Clinton says.

He starts tearing through the Stevens dissent, reading parts aloud.“That’s right!” he says after he finishes a sentence he
agrees with.“That’s right.”

“Um, you’re going to have to take questions on this later today,” Richetti says.

“I don’t think you should say any of that in public,” Berger cautions, stating the obvious. But Clinton takes the bait.

“I am
not
going to be
silent!
” the president responds, fuming. “I will
not
validate this opinion in
any way, shape, or form!
I don’t wanna be sitting around ten years from now, saying I signed off on
the most political
decision the Supreme Court has
ever made!
” He starts tearing through a list of other notorious Supreme Court decisions he feels this one will earn a place next to—
Dred Scott,
which in 1857 ruled slaves property not citizens,
Plessy v. Ferguson,
which in 1896 codified legally enforceable segregation.

“I am
not
going to be on the wrong side of history on this!” Clinton fumes.

The president is reminded that Gore has yet to give a statement on the matter. He probably shouldn’t say anything until Gore
does, at least. Clinton agrees; he asks them to check with Daley first, find out what Gore’s going to say. And with that,
Clinton is put back in his box. For the time being.

Phew!