Down & Dirty (102 page)

In other words, the American system worked exactly as it’s supposed to.

Was the Gore team any better behaved? With two exceptions, no. Generally, the Democrats were just as disingenuous, just as
power-thirsty, and just as hypocritical. They co-opted Theresa LePore and lied about the official number of votes that came
in from Palm Beach County after the extended deadline. They, too, cajoled, misrepresented, misled, lied. Daley bullied Butterworth;
Wexler lied about LePore; Gore told the American people just plain falsehoods about Seminole County; Strep Throat spread malicious
gossip about Harris; Burton and Penelas were slammed for selling out voters for their own personal gain, with little evidence
to back up the claims.

But in two respects, the Gore team was better behaved. First, the Democrats were more restrained on the ground, and with a
few exceptions—Nadler, Jackson, Dershowitz—more responsible in their rhetoric. Of course, maybe they had to be calmer. After
all, they were the ones asking for hand recounts, getting deadlines extended, contesting the election. Gore was never officially
ahead in the Florida vote count; they
had
to be more temperate.

And, let’s not forget, Gore
did
call, however lamely, for a statewide hand recount, the only thing that could have truly and honestly brought us to at least
the neighborhood of an answer as to whom a majority of the citizens of Florida really chose on November 7. But, on the other
hand, despite Gore’s lofty rhetoric, at no point did his political operatives or lawyers make an attempt to have all the votes
counted. Not during the protest, not during the contest, not on the ground when various counters called and asked if they
wanted the votes in, say, Lake County, checked out.

Throwing a huge question mark into any depravation assessment, of course, is the Republican overseas-absentee-ballot conference
call. All the other shenanigans that took place in this mess—delaying tactics, vote trolling, standards adjusting—did so within
the confines of the law. Except for this. If this order was carried out, it was illegal. If ballots cast after the election
came in, and were counted, that was cheating.

I seriously doubt, however, that there will be any investigation into the matter. People want this thing to be over with.
And remember who’s in charge of the country now. There is, in my mind, a much greater likelihood of Bush team dirty-tricksters
and spinners launching a campaign to discredit this author and this book than there is of any sort of law-enforcement investigation
into the overseas-absentee-ballot matter. Despite the fact that this book also points out examples of nasty behavior of Democrats,
and lies by Gorebies ranging from the Veep himself to Reverend Jackson to Congressman Wexler, since the Republicans are in
the White House, the charges against them might seem harsher. After all, at this point, who really cares if Harry Jacobs lied
on
Hardball?
But this, too, is part of the problem.

The race was hardly over before the second-guessing began, and journalists and pols began asking what, if anything, could
have been done differently.

To be sure, Daley, Boies, et al., had an uphill fight from the first minute. The Republicans had four things going for them.
First, Bush had been declared the winner that night by the media, i.e., the TV networks. This was in no small part thanks
to John Ellis,
unbelievably
put in charge of calling the election results for Fox News Channel. Second, and perhaps most important, Bush actually
did win
the vote tally that night, by 1,500 or so votes, and the machine recount, by 300 votes, and the system is set up to make
it rare that an election is overturned. Third, Bush’s brother was the governor, and he had the state wired, top to bottom.
And fourth, the Bush team did a better job during the recount.

Team Gore took a horribly chaotic situation—created by shortsighted state legislators with rather limited legislative gifts—and
made it worse. It was all too easy for five justices of the U.S. Supreme Court to step in, find a troublesome constitutional
issue swirling around in the stew, and slam the lid down, putting an end to the madness. It was the Democrats who asked canvassing
boards to change their standards, who took them to
court
to change their standards, not because they were concerned that voters were being disenfranchised, though that was the rhetoric
in which they cloaked their cause. They did it because they felt that was the only way they could get enough votes so Gore
could win.

Of course, the Gorebies were also hobbled by what David Leahy calls “the horrible law.” “All the politicians were complaining,
‘
This
judge,’ ‘
This
court,’” Burton said to me in January 2001. “But
they
wrote the laws! The laws are horrible! ‘Intent of the voter’?!”

True enough; there was no mechanism for a statewide recount. But would it have been impossible? Judge Lewis likes to fantasize
about how he would have solved the problem, had he been assigned the election contest. He would have gotten both Bush and
Gore themselves in his courtroom, laid out the problem, and worked with them from the bench to resolve it. Maybe he would
have even let Bush choose the standard.

This was fantasy, of course. And the case ended up before Sauls. But what kind of a case did the Gore legal team present?
Not a strong one, not a particularly convincing one. And yet, Boies points out that Sauls’s judgment was ultimately overturned,
and had it not been for the SCOTUS stepping in, the undervotes, at least, would have been counted.

Indeed, Team Gore did have this one ally. Even if they didn’t have Butterworth—who clearly took his position as an impartial
arbiter of state law far more seriously than the disturbingly ambitious Harris ever did—the Gore team had the Florida Supreme
Court. The seven justices in the first ruling, and then the four justices in the second, were willing to take a bold stand
to ensure that votes were counted. But with the guidance of Boies, the justices manufactured an ill-conceived way to get to
the bottom of it all; first clearly rewriting Florida election code, then ordering only the undervotes counted.

In some ways, it’s not the justices’ fault. Harris and the secretary of state’s office (Kerey Carpenter, for instance) abused
their positions. They may have ruled that way so as to retaliate against the clearly partisan actions of individuals like
Commissioner Carol Roberts, but they did so nonetheless.
The Florida Supreme Court was trying to figure out a way to smooth out the wrinkles in contradictory statutes and provide
aid to counties shanked by Harris’s partisan maneuvers. But they did so in a way that awoke the slumbering giant of the U.S.
Supreme Court—as nudged by Olson, Carvin, Terwilliger, etc.—who clearly outwitted the Florida justices. Thus the Florida Supreme
Court tried to help the “Count Every Vote” cause, but they did so in ways that ended up hurting the state’s chances of ever
finding out who really got the most legal votes.

It didn’t have to be this way. There was, after all, the
contest
phase of the election, which could have put the entire statewide deal in front of one judge. Gore and his legal team wanted
to avoid this for PR reasons—not exactly a lofty excuse. And when they did finally contest it all, it wasn’t the statewide
results they wanted examined—it was 51 votes here, 157 votes there, 215 votes that never were. “Count every vote,” indeed.
How easy for randy SCOTUS justices to deride. Hell, the Gore team had given them a layup.

Sadly, none of this should have come as a shock to the Democrats. Sitting right there in their files, in the postscript of
The Recount Primer,
was a lesson no one learned.

The Ultimate Recount

(Indiana’s 8th Congressional District—1984)

There is no better case to demonstrate how and how not to conduct a recount than the 1984 battle between incumbent Democrat
Frank McCloskey and his Republican challenger Richard McIntyre for Indiana’s 8th Congressional District seat.

The 8th Congressional District of Indiana has become known as the “Bloody 8th” because of the closeness of its election outcomes
and the intensity of its political campaigns…. Election night results… showed a handful of votes separating McCloskey and
McIntyre. Over a period of six months, three complete vote tallies were conducted: an election night canvass, a state recount
and a federal recount. Eventually, McCloskey was seated based on a margin of four votes out of a quarter of a million cast….

The 8th District recount illustrates most of the key points addressed in this primer.

First, the importance of quickly gathering data. McCloskey’s team immediately identified areas of information to be gathered,
created a format to insure consistency, and had workers in the field within two
days after the election, gathering information…. Thus, strategic decisions concerning the conduct of a state recount, such
as the probable effect of the lack of district-wide rules, were made on the basis of reliable information.

On the other hand, once the state recount started, McIntyre’s campaign blindly charged ahead seeking new votes, indiscriminately
disqualifying McCloskey ballots and pursuing immediately advantageous positions without regard to their impact upon the contest
district-wide. Thus, McIntyre’s aggressive, but misguided, strategy played to the advantage of McCloskey.

The immediate effect was to provide McIntyre with a Pyrrhic victory of over 500 votes in the state recount. But this margin
was reached by rulings so seemingly inconsistent as to appear part of an improper use of the nominally Republican dominated
election system to benefit the McIntyre cause. Particularly susceptible to being made offensive was the disqualification of
thousands of ballots for technical reasons in predominantly black precincts in Evansville, Indiana. Ironically, these disqualifications
were not needed by the McIntyre interests, a fact apparently not known to his team at the time. McCloskey supporters were
able to characterize the state recount as a sham and obtain a federal recount overseen by the House of Representatives.

Sound familiar?

Some Democrats have no interest in a serious analysis of what happened in Florida, however. Like Terry McAuliffe. Clinton
money-man and, as of February 3, 2001, chairman of the Democratic National Committee.

“Folks, let us never forget it,” McAuliffe says at his inaugural address as DNC chair. “Al Gore won that election….If Katherine
Harris, Jeb Bush, Jim Baker, and the Supreme Court hadn’t tampered with the results, Al Gore would be president, George Bush
would be back in Austin, and John Ashcroft would be home reading
Southern Partisan
magazine.

“George Bush says he’s for election reform. Reform
this,
”bellows McAuliffe. “I say park the state police cars, take down the roadblocks, stop asking people of color for multiple
forms of ID, print readable ballots, open the polling places, count all the votes, and start practicing democracy in America.”

McAuliffe later claims that his speech was just intended to fire up the Democratic base, but such rhetoric is just as overheated,
spurious, and
fact-deficient as the various speeches made by Republicans—like, say, Racicot—during the recount. Which may be, regrettably,
the lesson Democrats learned from this: Lie all you want, it doesn’t matter. The media won’t call you on it, and if they do,
who cares? Surely this is not a healthy development.

But what
of
the charges of wholesale intimidation of African-Americans? I have no doubt that there were shady instances where blacks
didn’t get to vote, but even Henry Latimer, the civil rights attorney made point man on this issue by the Gorebies, doesn’t
allege any grand conspiracy. That surely won’t prevent Democrats like Jesse Jackson and other demagogues from making claims
devoid of fact, or evidence, of continuing to exploit Florida for political gain.

Truth is, though the NAACP and other civil rights organizations continue to rail against the disenfranchisement of black voters,
the most glaring instances of black Floridians’ votes not being counted—in Duval County—is due to a toxic combination of two
things: (1) ballot spoilage from new voters and uneducated ones, and (2) inattentiveness to the issue of ballot spoilage,
rooted in the indifference of elections officials. It might score McAuliffe political points to paint a picture of Election
Day in Florida that conjures images of Bull Conner and civil rights struggles of generations ago, but the reality is far more
complex.