Down & Dirty (108 page)

^*
The actual date for this, of course, is
December
18.

^*
“Beckstrom” is a case that will be bandied about quite a bit. It stems from a November 1996 sheriff’s election in Volusia
County, in which fraud was alleged against the winner by Gus Beckstrom, the loser. In March 1998, the Florida Supreme Court
upheld a circuit court judge’s ruling that Beckstrom still was the loser—but it disagreed with one sentence in the trial court
judge’s decision: “I do not have jurisdiction to set aside this election.” “The trial court clearly had jurisdiction” to do
so if it wanted, the Florida Supreme Court wrote. “Thus, the correct statement is that the trial court found no factual basis
for requiring that the election be set aside.”

^*
It’s apparently this incident, as well as questions about how much Harris has spent on official travel, that leads Harvard
Law professor Alan Dershowitz to say to CNN on November 14 that Harris is “corrupt. She’s had all kind of corruption allegations
about expenditures of money. She’s a crook. She’s a crook and an operative of the Bush campaign.” Dershowitz is too smart
to commit slander, but this is pretty close to it, were it not so amusing coming from an attorney who helped ensure the freedom
of O. J. Simpson and Claus von Bulow.

^*
Stolen from
MAD
magazine’s December 1976 parody of
All the President’s Men
.

^*
In an interview on January 15, 2001, I’ll ask Boies if while he was in Florida he wasn’t wasting his time when he would
talk to the media instead of preparing for trial, working on the case. He’ll say to me, “What do you think working on a case’
is? It’s thinking, it’s answering questions, it’s refining the arguments. And this was not a situation like in antitrust cases,
where there are lots of obscure market-definition issues and you have to go into records and cases and research. When I got
on the plane, I had in my hand the stack of statutes and cases Jonathan had pulled for me,” and there weren’t very many more
cases he needed to learn about, he says. “This was not a situation where there was a great deal of undone legal analysis.
A lawyer needs to be able to answer any questions the court is going to have; lots of lawyers have elaborate moot courts,
which I don’t do because I find them artificial. There weren’t any questions that the Florida Supreme Court asked me that
hadn’t been asked to me by members of the press, sometimes several times.”

^*
In March 1991, Al Hogan was defeated by just 3 votes in his race for Oakland Park city council against Douglas Johnson.
A computer recount increased Johnson’s margin of victory to 5 votes. Hogan wanted a hand recount, since there were undervotes
not read, but the Broward County canvassing board denied his request. He sued the board in circuit court and won, but in November
1992, the Fourth District Court of Appeals ruled that the canvassing board had the right to deny his request.

^†
At the time, of course, it was not 2001. It was November 14, 2000.

^*
The one being vacated by then–state senator Ileana Ros-Lehtinen, who was running for U.S. House. More on this race in a
bit.

^*
Big mistake. Lake County—where Bush beat Gore 50,010 to 36,571—reported 3,114 overvotes. In December, the
Orlando Sun-Sentinel
will review them and clearly identify 376 Gore votes—ballots where the oval had been filled in for Gore, and either Gore
or Lieberman’s name had been filled in under the “write-in” section. Likewise, the newspaper finds 246 similarly botched Bush
votes. This is a net gain of 131 Gore votes.

The machine rejected these ballots, but a thorough canvassing-board review likely wouldn’t have.

“To publish illegal votes as legal votes would be to mislead the readers and the public,” the inimitable Eskew told the
Sun-Sentinel
. “These are illegal votes, and your paper is publishing them as legal votes.” He calls the media investigation “mischief.”

^*
In fact, the Democrats’ communications shop is so harried, Mark Herron himself won’t even know about the Smith press conference
until I tell him about it during an interview in January 2001.

^*
The only reason I don’t tell you Strep Throat’s name is that I made a solemn promise that I wouldn’t ever do so, and I,
at least, consider my credibility to be a valuable asset. Unlike Mr. Throat.

^*
I do so now, only after the presidential dispute is all over, and because I think Strep Throat—and whoever else on Team
Gore knew about it—should be ashamed. I realize that even mentioning it circulates it even further, and for that reason I
had second, third, fourth thoughts about including it here. But when all is said and done, I do it because I think Democrats
need to be slapped out of their delusion that their advocates acted honorably. Strep Throat was not a fringe player on the
Gore campaign. Strep Throat was a senior adviser who dealt with the vice president on a regular basis.

^*
In a perfect example of how the shoddiness of the media benefited the Bushies, this “some real games are being played” anecdote
will be reported by the Associated Press without the explanation that the Republican woman was complaining about Republican
games. Then the story will be e-mailed out by Bush communications senior staffers Ari Fleischer and Dan Bartlett on November
18 at 5
P.M
., with the subject line “GAMES BEING PLAYED” as an example of Democratic dirty tricks.

^*
Not all of Latimer’s work is on behalf of aggrieved African-Americans, of course. In 1984, he represented the city of Miami
in a suit brought by a twenty-year-old black man shot and killed by a Hispanic city cop. In 1991, he represented Miami again
when former police chief Perry Anderson, an African-American, sued the city for not paying legal fees for his private attorney
when he was named in lawsuits against the police department in various police brutality cases. In the past, the city had paid
for counsel to represent white police chiefs.

^*
The ugly 1876 dispute between Democrat Samuel Tilden and Republican Rutherford B. Hayes began when Florida submitted two
slates of electors, one for Hayes from the GOP state canvassing board and one for Tilden from the Democratic state legislature.
Congress formed an Electoral Commission, made up of five congressmen, five senators, and five U.S. Supreme Court justices.
On a vote completely split on partisan lines—giving 185 electoral votes to Hayes, the popular-vote loser, and 184 to Tilden—Hayes’s
one-term presidency was born. To prevent this from ever happening again, on February 3, 1887, Congress passed the Electoral
Count Act, which established a number of laws kicking it all back to the states, hopefully forever.

^†
“A clever court could have figured out a way to do this,” Carvin will say to me on January 16, 2001, with a devilish grin.
“But they were not particularly clever.” He goes on: “The kind of cases I do—civil rights cases, affirmative action cases—I
see the judges, I basically know the result, I mean a lot of times. If I’m arguing
Prop. 209
, and there are three Carter appointees,
I basically know how they’re going to come out, and vice versa if it’s three Reagan appointees.”

California’s
Prop. 209
, which bans consideration of race or gender in state school admissions or in state hiring, was adopted
by public initiative in 1996. Carvin argued in favor of it all the way to the
SCOTUS
, and the Court refused to hear arguments on the matter in November 1997, one of Carvin’s many victories against affirmative
action and civil rights measures. In October 1998, for instance, he worked to erase a 1993 Cincinnati city-charter law prohibiting
discrimination in housing and employment based on sexual orientation.

“I’ve been in a lot of courts where I sort of know that I’m just here for stopover purposes. Then all you’re trying to do
is get through, lay down your markers, and move on.”

^*
The
Pullen
decision will be a side issue from here on in, with the Republicans using it to attempt to paint Boies as a liar, so it’s
probably worth going into here.

In the March 1990 Republican primary in Illinois, a conservative state representative, Penny Pullen, lost to pro-choice paralegal
Rosemary Mulligan. After a recount, the two were tied, and a coin toss gave it to Mulligan again. Pullen appealed to the state
supreme court, which in September told Cook County Circuit Court judge Francis Barth to examine 27 undervotes and assess if
there were any votes that “can be reasonably ascertained.”

Barth judged that 19 ballots had no clear intent. He accepted 4 with pinholes in the chad, one dimpled chad on a ballot with
a pattern of misaligned punches, and three hanging chad. Of these 8 accepted questionables, 7 were for Pullen and 1 was for
Mulligan. Thus, Pullen was declared the winner, 7,392 votes to 7,386.

Two years later, Mulligan ran against Pullen again. This time she beat her.

^*
Live by the media, die by the media. Boies should know better than to trust everything he reads in the paper; this
Chicago Tribune
article will prove to be wrong. Dimpled ballots were not
all
considered votes in the
Pullen
case. The
Chicago Tribune
will prove to be an irritant to the Gorebies, which we’ll get to in a bit.

^*
The U.S. Chamber of Commerce had been running ads against state supreme court candidates and not disclosing who was funding
the ads, using the preposterous campaign-finance loophole that rules that such ads aren’t expressly political ads if they
don’t use specific advocacy words, like “vote for” and “vote against.” A judge ordered the ads pulled.

^*
The petition is signed, in order, by Rachel A. La Corte, Associated Press; Ellis Berger of the
Sun-Sentinel,
Paul Lomartire and Lou Salome of the
Palm Beach Post,
Dana Canedy of the
New York Times,
Daniel McGrory of the
Times
of London, Bill Redeker of ABC News, Don Finefrock of the
Miami Herald,
Sue Anne Pressley of the
Washington Post,
Henry Goldman of Bloomberg News, Dahleen Glanton of the
Chicago Tribune,
and Jane Sutton of Reuters.

^*
How both Bush and George Washington University Hospital deceives the public about Cheney’s fourth heart attack is remarkable
for no other reason than the Bushies’ ability to drag a normally respected physician into their MO of prevarication. Cheney’s
heart attack would not have been ruled as such a year prior, before the American Heart Association changed its classifications,
but still, Dr. Alan Wasserman, president of the George Washington Medical Faculty Associates, assuredly knew what he was saying
when right off the bat he said that neither Cheney’s “
initial
EKG nor his blood work indicated that he had a heart attack.” (Emphasis added.) Of course, it was Cheney’s
subsequent
EKG and blood work that indicated that he had a heart attack, which Wasserman clearly knew at the time, since at that very
same press conference, he referred to the fact that “a second EKG showed minor changes”—“minor changes” as in a heart attack.

Bush, too, made this same deceptive assertion about Cheney’s condition when he used the very same weasel language to assert
that “the initial EKG showed that he had no heart attack.” And, as always, despite the blatant disdain for the American people
that Bush and his lie—and Wasserman and
his
lie—would indicate, the issue was dropped soon enough, and media outrage was minimal.

^†
The U.S. Congress once concluded about the Civil Rights Act of 1968 that there was “no question of the constitutional power
of Congress to punish private interference with voting in Federal elections, interstate travel or interstate commerce.”

^*
The idea that a band of agitated white Republicans is simply incapable of intimidation is intriguing, especially when one
pokes the thesis beneath its surface—imagining, for example, the exact same protest, with the exact same vigor, as carried
out by, say, young Democratic African-Americans, and the subsequent reaction by, say, Brit Hume.

^*
Gorebies will be further infuriated with Fabiani and Lehane after the recount fight ends and the
Washington Post
writes a rather flattering profile of the two, despite the fact that the Gore campaign’s communications weren’t quite the
gold standard of media strategies, especially during the recount. Though, to be fair, Bob Shrum, Carter Eskew, and Daley were
of course the ultimate arbiters of everything that went out.

^*
Informally called a “cert” or a “cert petition,” a petition for a writ of certiorari (from the Latin for “to be informed
of”) is what lawyers write when they want a higher court to reexamine any actions of a lower court. The writ itself comes
when the court agrees to hear the appeal.

^*
Article II, Section 1, clause 2 of the Constitution provides: “Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may
be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United
States, shall be appointed an Elector.”

The 14th Amendment to the Constitution says that “No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”