Down & Dirty (37 page)

Clearly Miller seems to hold Boies in a kind of awe usually reserved in times past for emperors. And it’s been this way since
that first week at Northwestern. Professors held him in such regard, Miller says, that one told him, “He is teaching the faculty,
we’re not teaching him.” (Well, not every professor; Boies later had to transfer to Yale after he had an affair with a professor’s
wife, a woman who became wife no. 2.) But Boies does have his detractors. During the Microsoft case, Gates attacked him personally,
saying Boies was “out to destroy Microsoft… and make us look bad.” Robert Levy, a senior fellow in constitutional studies
at the libertarian Cato Institute, says that Boies’s Microsoft arguments were over the top for the benefit of the cameras.
“The case played to the media. It didn’t focus on substantive legal issues, but instead emphasized the ridicule of both the
company and Bill Gates in particular.”

When I ask his best friend about Levy’s criticism, Miller says that playing to the media may have been the only way to win
the Microsoft case. And Boies can hardly be faulted for pursuing a legal plan that worked, at least in the short term.

But last night I did wonder what Boies was doing gingerly, leisurely talking to David Bloom of NBC while Rome burned.
^*

On Tuesday morning, Martinez and De Grandy face off against Coffey and Democratic trial lawyer Steve Zack before the Miami-Dade
canvassing board: King, Leahy, and circuit court judge Myriam Lehr. (Lehr was assigned to the board when every single commissioner
recused himself or herself due to involvement one way or another with a race on the November ballot.) They’re there to debate
a motion from county Democratic chair Joe Geller, that Miami-Dade should conduct the “1 percent” recount of the county’s ballots,
as well as inspect the 10,417 undervotes.

On Election Night, Zack had been asked by Gore lawyer Chris Koch to come on board, but he’d turned him down, saying he was
too busy with an HMO trial. But Zack was intrigued by the Middlebrooks case, primarily since two of his University of Florida
buddies were there—both Middlebrooks and Tallahassee attorney Steve Uhlfelder, who was arguing in favor of cameras in the
courtroom on behalf of ABC. So Zack had ducked in to see the trial, whereupon Coffey asked him to help him argue the recount
today.

Zack’s no great legal mind, but he’s a skilled trial attorney, full of rhetoric and histrionics, which he often uses effectively.
Zack begins by discussing the seal of the Florida Supreme Court: its motto,
Sat Cito Si Recte,
“soon enough, if done rightly”; the goddess of justice, “which is blindfolded to symbolize the impartiality of the law,”
and the eagle, “which has been interpreted as the power of justice ruling the world.” Zack’s description of the motto is cribbed,
nearly verbatim, from the Florida Supreme Court’s Web site. He talks about Middlebrooks. He talks about
Profiles in Courage.
He quotes Will Rogers.

“May I ask a question?” Judge Lehr interrupts. “Which three precincts?”

They are precincts 103, 203, and 234—astronomically Democratic precincts, two largely black and Hispanic (though not Cuban)
and one largely Jewish and elderly.

Martinez is called to speak. He refers to a document provided him by the Bushies, the testimony of the former director of
elections for the state of Oregon, who says that the more you handle ballots, the more “their quality as evidence of the voters’
original intent is degraded.”

Lehr, flipping through the copy of the document that’s been provided by Martinez, jumps in again. “Mr. Martinez, I apologize,
what page are you on?”

Page four, paragraph six, Martinez says.

“Page four is missing,” Leahy says.

“That’s a major oversight,” Martinez says, but continues. He argues that there has been no error in vote tabulation. He quotes
Florida statute
Broward v. Hogan
^*
and Katherine Harris. Martinez also offers a touch of rhetorical panache; not quite Zack-level, but close. “Ours is a country
of laws,” he muses.“It is a country that is governed by the rule of law. That is a term that this area in particular has heard
quite a bit in the last year. We must respect and follow the rule of law. There are many people in this country—and in this
area in particular—that come here because our system of government follows the rule of law, and they have escaped those systems
of government where the governmental officials act arbitrarily.”

There is more than a touch of Emma Lazarus underlining Martinez’s comments. Both elected officials on the board—Judges King
and Lehr—were elected with significant support from the Cuban-American community. Both retain the services of Armando Gutierrez—politico
and spokesman for Elián’s Miami relatives. Martinez is sending a message.

Coffey rebuts some of the arguments about ballots being degraded in the process. Zack says that
Hogan
doesn’t apply until the board makes a decision. He quotes Dickens and, again, Middlebrooks. “You know, I was thinking about
how prophetic the movie
2001
was,” Zack rambles.“When I saw it, it was 1960-something. It’s now 2001.
^†
And in
2001,
a computer called Hal controlled our lives. Not individuals. Computers still in this century hopefully will not control our
lives.

“You know, Bob Martinez is a very good friend of mine,” he continues, as those listening strain to understand where he’s going.“He
came from Cuba in the sixties, and I did, too. I was born in the United States, but my grandfather is Cuban, and my mother
is Cuban.” (After Zack was born in the United States, his family moved to Cuba, and then he returned to the States in 1961.)
“My grandfather was a refugee for the second time in his life. He had come from Russia to Cuba in the early 1900s to avoid
oppression. He was obviously very, very upset having to leave Cuba, as was my mother, and I remember his words, and I asked
him how he was feeling.

“He said, ‘You know, it’s a horrible thing to be a refugee twice in your life. I take solace in one thing, that I’m going
to America. I know I will never be a refugee again, because I know that if America falls, there will be no place to go.’

“And I know that he never heard of Thomas Paine at that time before he died or at any other time. But had he, he would have
stated the same thing Thomas Paine said when they founded this nation. That is, the right of voting for the representatives
is the primary right by which all other rights are protected. All we are asking you today is to protect that right.”

All three members of the canvassing board vote to do the 1 percent hand recount.

About eight years ago, circuit court judge Terry Lewis, appointed to the bench in ’97 by Chiles, finished off a junky mystery
novel and thought, “They actually paid this person? They actually spent money to publish it? I really think I could write
something as good as that.” Five years later, a small publishing house published his magnum opus,
Conflict of Interest,
a decent thriller about Teddy Stevens, an alcoholic Tallahassee attorney assigned to defend a young black kid for murdering
a woman with whom Stevens secretly had an affair.

Katherine Harris’s conflict of interest in the decision before Lewis is a little less steamy, but a lot more consequential.

Some in the Bush camp are worried about Lewis. He’s a registered Democrat, and the last time he was asked to issue an injunction
this weighty was in July 1999, minutes after a Jeb-backed law took effect that would require abortion providers to notify
a minor’s parents forty-eight hours before the procedure was performed. Lewis granted the temporary injunction almost immediately,
based on state constitutional privacy issues, and in May 2000 he ruled that the law was “exactly the kind of government interference
into personal, intimate decisions that the privacy clause protects against.”

Bush attorney Barry Richard gives the team his take on Lewis, as he’ll do for every Florida judge. He thinks Lewis is intellectually
one of the most competent judges on bench anywhere, an independent judge who presides over a good courtroom. He and Lewis
like each other’s styles: just as Lewis appreciates the fact that Richard will acknowledge weaknesses in his case, thus earning
credibility, Richard likes the fact that Lewis gets to the meat of the matter right away in his questions, zeroing in on the
core issues right off the bat. He tells his colleagues not to worry.

True to his Solomonic reputation, shortly after noon Lewis issues an “order granting in part and denying in part” Volusia’s
motion for the temporary restraining order.“I give great deference to the interpretation by the secretary of the election
laws, and I agree that the canvassing boards must file their returns by five o’clock
P.M.
today,” he says. “I disagree, however, that the secretary is required to ignore any late filed returns absent an Act of God.”

Lewis points out that the hand-recount provision in state law exists for a reason. If Harris weren’t meant to accept any hand
recounts, that would mean that the law were valid “only in sparsely populated counties,” where such recounts can be completed
by the deadline mandated for seven days after the election. “Just common sense tells you that if you have discretion, you
can’t decide ahead of time what the possibilities might be that a canvassing board can’t get the results in,” he thinks. You
have to at least hear the reasons why.

“That the secretary may ignore late filed returns necessarily means that the secretary does not have to ignore such returns,”
Lewis rules.“It is, as the secretary acknowledges, within her discretion. To determine ahead of time that such returns will
be ignored, however, unless caused by some Act of God, is not the exercise of discretion. It is the abdication of discretion.

“If the returns are received from a county at 5:05
P.M.
on November 14, 2000, should the results be ignored? What about fifteen minutes? An hour? What if there was an electrical
power outage? Some other malfunction of the transmitting equipment?… Obviously the list of scenarios is almost endless…. The
secretary may, and should, consider all of the facts and circumstances.”

That said, Lewis doesn’t really get why anybody’s putting up a fuss about the certification deadline. The law provides for
anyone to contest the election. And since one reason for such a challenge is the “rejection of a number of legal votes sufficient
to change or place in doubt the result of the election,” it would seem that the canvassing boards can go ahead and count and,
once completed, contest the certified results. Or Gore can. Or the guy in the street can.

So yes, the deadline stands, Lewis says. But it is “ordered and adjudged that the secretary of state is directed to withhold
determination as to whether or not to ignore late filed returns… until due consideration of all relevant facts and circumstances
consistent with the sound exercise of discretion.”

Harris is no longer only using Kearney. The secretary of state’s office has officially retained Joe Klock of Steel Hector
& Davis, a firm with a Democratic history, where Janet Reno once practiced law. When Harris hears of Lewis’s ruling, she decides
to go ahead and certify tonight. But Kearney and Klock caution her otherwise. This is a legal order, they tell her. The judge
is ordering you to consider reasons for returns filed late. They recommend that she at least take a breath.