Down & Dirty (107 page)

Respectfully submitted,

W. Dexter Douglass

Florida Bar No.0020263

Douglass Law Firm

211 East Call Street

Tallahassee, Florida 32302

Telephone: 850/224-6191

Facsimile: 850/224-3644

Ron Klain

c/o Gore/Lieberman Recount

430 S. Capitol St.

Washington, DC 20003

Telephone: 202/863-8000

Facsimile: 202/863-8603

David Boies

Boies, Schiller & Flexner LLP

80 Business Park Drive, Suite 110

Armonk, New York 10504

Telephone: 914/273-9800

Facsimile: 914/273-9810

Jeffrey Robinson

Baach Robinson & Lewis

One Thomas Circle, Suite 200

Washington, DC 20003

Telephone: 202/833-7205

Facsimile: 202/466-5738

Andrew Pincus

c/o Gore/Lieberman Recount

430 S. Capitol St.

Washington, DC 20003

Telephone: 202/863-8000

Facsimile: 202/863-8603

Kendall Coffey

Florida Bar No. 259861

2665 S. Bayshore Drive, Suite 200

Miami, FL 33133

Telephone: 305/285-0800

Facsimile: 305/285-0257

John J. Corrigan, Jr.

896 Beacon St.

Boston, MA 02215

Telephone: 617/247-3800

Facsimile: 617/867-9224

Mark R. Steinberg

2272 Live Oak Drive West

Los Angeles, CA 90068

Telephone: 323/466-4009

Benedict E. Kuehne

Florida Bar No. 233293

Sale & Kuehne, P.A.

100 S.E. 2d Street, Suite 3550

Miami, FL 33131-2154

Telephone: 305/789-5989

Facsimile: 305/789-5987

Dennis Newman

580 Pearl St.

Reading, MA 01867

Telephone: 781/944-0345

Facsimile: 617-742-6880

COUNSEL FOR ALBERT GORE, JR., AND JOSEPH I. LIEBERMAN

1
. In any event, Justice Breyer correctly pointed out that whether it would be possible to finish or not was “a matter for
the state courts to determine,”
Id.
at 3 (Breyer, J., dissenting). Even more, this is a prediction of fact, not a point of law, on which the record was inconclusive.

2
. This Court can therefore impose an interim plan to remedy the equal protection problems noted by the U.S. Supreme Court.
The Legislature would be free at a later date to choose the same or a different remedy to govern future elections.

3
. When quick action is needed to remedy an equal protection problem that threatens an active election cycle, courts may propose
an interim solution to remedy the problem pending legislative action.
See, e.g., Burns v. Richardson,
384 U.S. 73, 85–86 (1966);
Reynolds v. Sims,
377 U.S. 533 (1963).

4
. 65 out of 67 counties in Florida use either opti-scan ballots or punchcard ballot systems. In addition, Martin County uses
both punchcard ballots and a mechanical voting system and Union County uses manually-tabulated paper ballots. See election.dos.state.fl.us/votemeth/cvs.shtml.

5
.
During proceedings of the Miami-Dade County Canvassing Board Hand Recount, Supervisor of Elections David Leahy stated that
the unvoted ballots had been separated out by the card readers the previous day. See Miami-Dade Transcript (Nov. 20, 2000),
at 7.
See also
Miami-Dade Tr. at 4 (Nov. 18, 2000) (Judge King stating that his “first recommendation is to use the software and the program
that was developed for us to identify the undercounted ballots in the presidential race… and that we would run the ballots
through the readers”). Again, the software program is designed to stop where there is not a punch for a presidential candidate
and those ballots would be segregated but kept with the precinct.

6
. Examples of overvote ballots in the record include a damaged ballot on which the voter wrote in the phrase “Al Gore for
President” but was not counted (Tr. Palm Beach County Bd. 11/18/00, at 94–97), and ballots where the voter mistakenly voted
for one presidential candidate, taped over the wrongly punched chad and then voted for Al Gore, but was not counted (Tr. Palm
Beach County Canvassing Board, 11/19/00, at 66, 75–76, 82, and 84–85). The clear intent of the voter standard outlined herein
would address these overvote ballots and allow them to be counted for the appropriate candidate.

7
. This standard is well represented in Florida law through the years.
See State ex rel. Carpenter v. Barber,
198 So. 49 (Fla. 1940) (“The intention of the voter should be ascertained from a study of the ballot and the vote counted,
if the will and intention of the voter can be determined, even though the cross mark “x” appears before or after the name
of said candidate”) (
citing Wiggins v. Drane,
144 So. 62;
Nuccio v. Williams,
120 So. 310;
State ex rel. Knott v. Haskell,
72 So. 651).

8
. As this Court noted in its quotation from the Illinois Supreme Court case of
Pullen v. Mulligan,
“The legislature authorized the use of electronic tabulating equipment to expedite the tabulating process and to eliminate
the possibility of human error in the counting process, not to create a technical obstruction which defeats the rights of
qualified voters. This court should not, under the appearance of enforcing the election laws, defeat the very object which
those laws are intended to achieve. To invalidate a ballot which clearly reflects the voter’s intent, simply because a machine
cannot read it, would subordinate substance to form and promote the means at the expense of the end.”
Harris v. Palm Beach County Canvassing Bd.,
Slip op. at 34–35 (
quoting Pullen v. Mulligan,
561 N.E.2d 585, 611 (Ill. 1990)).

^*
After he learned that a Democrat in Columbia, South Carolina, named Sam Tanenbaum was supporting McCain, Bush mentioned
Tanenbaum’s name with suspicious frequency. Additionally, Christian activist Pat Robertson placed thousands of prerecorded
phone calls to likely supporters, letting them know that McCain’s New Hampshire campaign had been co-chaired by “an anti-Christian
bigot”—former New Hampshire Republican senator Warren Rudman, a Jew. (Rudman himself, not exactly a Gore supporter, feels
that this was Jew-baiting.) Rudman’s religion was mentioned, and his name was mispronounced in other pro-Bush Christian conservative–channeled
phone calls to sound more ethnic,“ROOD-mahn.”

^*
This anti-Bush African-American zeitgeist will be outdone, remarkably, in Bush’s home state of Texas, where a full 95 percent
of black voters will pull levers against the self-described compassionate conservative.

^*
In the coming days, assistant state attorney general Paul Hancock will say that the FHP checkpoint “was not done in accordance
with normal procedure.” By not getting the location approved, or announcing the checkpoint ahead of time to the media, the
checkpoint violated standard FHP protocol.

^*
In a July 3, 1999, op-ed for the
Boston Globe
entitled “Why I Won’t Write Any More About the 2000 Campaign,” then-columnist Ellis wrote,“I am loyal to my cousin, Governor
George Bush of Texas. I put that loyalty ahead of my loyalty to anyone else outside my immediate family. That being the case,
it is not possible for me to continue writing columns about the 2000 presidential campaign. A columnist’s allegiance must
be to the reader. This is an annoying and pretentious thing that journalists say, but it is, in fact, true. Columns depend
upon trust…. There is no way for you to know if I am telling you the truth about George W. Bush’s presidential campaign because
in my case, my loyalty goes to him and not to you.”

^*
As with “fish” or “sheep,” the correct plural of “chad” is actually “chad.”

^*
In an interview on January 16, 2001, Ron Klain will say, “What’s so interesting and ironic about this, as this process unfolded,
the decision by us that’s been the most second-guessed was, Why not the whole state?’ At the time, the pressure we felt was
the exact opposite pressure…. It’s painfully ironic; the pressure we felt was to count as little as possible, to keep the
thing limited and confined.”

^*
When I ask Daley what would have been the reaction had a first cousin of Gore been the one to call the election for Gore
for one of the networks, he laughs. “They would
indict
him!” He guffaws. “[Congressman Dan] Burton [R-Ind.] would haul him before his subcommittee!”

^*
In January 2001, Jacobs will tell me that he was not lying, that he “did not know the breadth or the depth of the involvement”
of Berger on the Gore team. He’ll say that he simply assumed that Berger—as well as Democratic National Committee counsel
Joe Sandler, with whom he had also spoken by the time of the
Hardball
interview—were just outraged Democratic volunteer lawyers, much like him. That may have been true at the time of the talk,
but it strains credibility that by November 29 Jacobs was
still
unaware of Berger’s involvement.

^*
And it will turn out that, as Butterworth tried to explain to judges Rouse and McDermott, many of these fifty-three counties
didn’t even conduct a recount—some just double-checked their computer numbers with the total, some didn’t even do anything
at all.

^*
The days following the nail-biter August 1948 runoff between LBJ and Gov. Coke Stevenson had plenty of vote buying and malfeasance
on both sides. After a few days of this, however, LBJ was still behind by 157 votes. Until, six days after the election, in
the town of Alice, 202 additional votes were found for LBJ in the fabled “Precinct Box 13.” All of these votes, except for
2, went for LBJ, who thus won the election by 87 votes. These 202 voters had supposedly come to Precinct 13 and signed in
using a different color ink than the previous 840 or so voters—and in alphabetical order. In a subsequent investigation, not
one of the 202 voters claimed to have voted that day, and some even were, of course, not alive at the time of the election.

^†
When I interviewed them in December 2000, both Bartlit and his law partner Philip Beck—Illinois residents who worked on Bush’s
legal team—expressed deep admiration for both Richie and Bill Daley. Both used the word “cheap” to describe Republican potshots
against Daley because of the sins of his father.

^*
When it’s all over, Keating will be denied a position in the Bush cabinet at least partially because of questions about
his
ethics, namely his acceptance of personal gifts of approximately a quarter of a million dollars from a financier.

^*
Actually, the “large unexplained shifts” have perfectly legit explanations: incompetence. In Palm Beach, it turns out that
on Election Night, the card-reader computer operator inadvertently hit “cancel” instead of “accept” when reading the cards
for West Palm Beach precinct 29-E. The mistake was corrected. In Pinellas County on Election Night, according to Republican
elections supervisor Deborah Clark, one election worker counted 937 absentee ballots twice, and another completely missed
counting 1,435 absentee ballots. So Gore was awarded an additional 417 votes from the Election Night count, and Bush lost
61. Nothing conspiratorial about either occurrence, however much making such a charge served Baker’s duplications ends. Baker
will never correct himself.

^*
United States Code, Title 3, Section 5 states that if “any State shall have provided, by laws enacted prior to” Election
Day a way to settle any “controversy or contest” of the election “by judicial or other methods or procedures” and the shit’s
all come down and been decided by six days before the electors are to meet, December 18, that law “shall be conclusive.” The
argument can be made, of course, that what’s going on is just “judicial or other methods or procedures,” but the Bushies will
show an interesting propensity to omitting that clause from their briefs.

^*
After it’s all over, I’ll go to hear a talk by Broward County commissioner Suzanne Gunzburger at a breakfast meeting of
the Hollywood Hills Democratic Club at Orangebrook Country Club. There many members of the largely Jewish group—including
several who think Bush stole the election—will roll their eyes and throw out a disgusted “Feh!” when I mention Jackson’s name.

^*
The thoroughly soporific items of law Harris depends upon are: “101.111 (1) Immediately after certification of any election
by the county canvassing board, the results shall be forwarded to the Department of State concerning the election of any federal
or state officer. The Governor, the Secretary of State, and the Director of the Division of Elections shall be the Elections
Canvassing Commission. The Elections Canvassing Commission shall, as soon as the official results are compiled from all counties,
certify the returns of the election and determine and declare who has been elected for each office. In the event that any
member of the Elections Canvassing Commission is unavailable to certify the returns of any election, such member shall be
replaced by a substitute member of the cabinet as determined by the Director of the Division of Elections. If the county returns
are not received by the Department of State by 5
P.M.
of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on
file shall be certified.”

and

“102.112 (1) The county canvassing board or a majority thereof shall file the county returns for the election of a federal
or state officer with the Department of State immediately after certification of the election results. Returns must be filed
by 5
P.M.
on the seventh day following the first primary and general election and by 3
P.M.
on the third day following the second primary. If the returns are not received by the department by the time specified, such
returns may be ignored and the results on file at that time may be certified by the department.”