Down & Dirty (60 page)

Gore and he have talked about it, and Gore, too, knows that there’s a very short fuse on this thing. Gore wants Fabiani to
come up with a communications plan to convey that the process is making progress, that there’s an endgame that can work. So
Fabiani lays out his thinking:

COMMUNICATIONS PLAN: CONTESTING THE ELECTION

This plan makes two basic assumptions:

• By Saturday morning, because of various adverse court decisions and local canvassing board decisions, it is clear that Gore
will not have amassed sufficient votes to take the lead by the Sunday 5:00
P.M
. deadline.

• Gore has definitely decided to file an election contest if he is not in the lead by the Sunday 5:00
P.M
. deadline.

• A decision to file an election contest must be explained to the country by Gore personally and in significant detail. This
is not a decision that can be explained in the first instance by lawyers and spokespeople.

• Gore must announce his decision to contest as soon as possible (once the two assumptions discussed above become fact). The
alternative—delaying an announcement until Monday—is untenable for these reasons:

• If it becomes clear on Friday or Saturday that Gore is unlikely to have the recount votes to prevail, the bulk of the news
coverage will shift to the issue of whether or not Gore will nonetheless contest the election. In this kind of environment,
Gore’s political support will quickly and inevitably erode.

• As a result, by the time Gore is ready to make a contest announcement on Monday, he will already have come under tremendous
pressure not to take such an action.

• By making an announcement sooner rather than later, Gore at least has the chance to hold potentially wayward supporters in
line.

• In addition, an early announcement allows Gore to set the parameters of the contest and explain how it can be conducted fairly
and within a strictly limited period of time.

• Everyone associated with Gore must begin immediately to speak from the same page. Already there are comments from Gore advisers
in the media saying that Gore’s challenge must end on Sunday evening if Gore remains
behind in the vote. In light of Miami-Dade’s decision, the facts have changed dramatically, and so should the posture of everyone
speaking on behalf of Gore.

• If Gore has decided not to contest the election, there is still great value in maintaining the viability of the contest option
right up until Sunday. In this case, the dominant themes would be these:

• An election contest would be extremely strong and stand a great chance of success. We will need surrogates to make this point
again and again over the weekend.

• Gore is weighing his options, with one overriding goal in mind: Doing what is best for the country.

• Gore’s approach throughout this entire situation has been contrasted sharply with the opposition’s win-at-any-cost, the-voters-be-damned
strategy.

To the Gorebies, clearly, the Miami-Dade incident is the turning point in the post-election wrangling. Their thinking: Gore
would have gained around 150 votes, propelling him to victory, a stronger position in the contest provision (
Bush
would have been the one contesting), and the
SCOTUS
would have been harder-pressed to issue the divisive, controversial ruling that it eventually handed down.

The one problem with this theory: it’s questionable that the Gore votes were there. At least in the 10,750 undervotes.

In early December, I sit down with Cuban-American political consultant Armando Gutierrez, who was doing the math, showing
me that there were plenty of undervotes in the Cubano precincts as well. Eighty undervotes in Opalocka precinct 246, he calculates,
where Bush beat Gore 543 to 530; 58 in Hialeah’s precinct 310, where Bush won 825 to 329; 78 in precinct 311 on West 4th Avenue,
where Bush won 1,067 to 431. In the precinct that he worked on Election Day—precinct 543 at Gate 14 at Orange Bowl Stadium—there
were 898 Bush votes, 351 Gore votes, and 106 undervotes, which would have presumably cut the same way, roughly 3 to 1 Bush.
A subsequent analysis by the
Palm Beach Post
bears this out.
¹
Inspecting the 10,750 undervotes under the loose standard the Miami-Dade canvassing board had been using before it all shut
down, the
Post
ruled that Bush
would have actually gained 6 votes had the count been completed, 251 new Bush votes to 245 new Gore votes.

However, when the
Post
counted the 5’s and 7’s—the more than 2,250 Miami-Dade ballots seemingly mis-inserted in the Votomatic machines, there were
1,023 punches for the nonexistent candidate at no. 7, and only 721 punches for Mr. Nobody at no. 5.

But those ballots were being set aside, and Young was planning on trying to convince the canvassing board to count these 2,250-some
votes for both candidates.

Had these been counted—and who knows, perhaps Young could have been able to convince the board to do so—Gore would have picked
up 302 additional votes. Though Leahy later tells me, “I don’t think the canvassing board would have changed its mind” on
the 5’s and 7’s. “It was something for the [Democratic] party to use in a court case, in the contest.” But we’ll never know
what would have happened, of course. At least in part because of the GOP protesters and the obstacle they put in the path
of the hand count continuing, as well as who knows what else that influenced the Miami-Dade canvassing board.

I
nternally within the Bush legal team, the initial decision to push forward with the federal case—the one that landed before
Middlebrooks—was hotly debated. Did they really want to be the first to file a lawsuit? Did they really want to be asserting
that the federal government should involve itself in a state’s election process? Baker calmly ruled that the insurance policy
was necessary, but there were those on the other side of the debate.

On the other hand, the decision to appeal the Florida Supreme Court’s ruling to the U.S. Supreme Court isn’t even a close
call.

The brief, chiefly prepared by Olson, Carvin, and Olson’s colleagues at Gibson Dunn & Crutcher, is filed Wednesday, November
22. It requests a writ of certiorari,
^*
throwing every argument under the sun at the Florida Supreme Court ruling.

The Bush lawyers raise the 3 U.S.C. 5 issue. They also argue that since the extension was essentially a new law, it’s “inconsistent
with Article II, Section 1, clause 2 of the Constitution, which provides that electors shall be appointed by each State ‘in
such Manner as the Legislature thereof may direct.’” This decision, they claim, was also inconsistent with the 14th Amendment.
Lastly, the Bushies say, “the use of arbitrary, standardless, and selective manual recounts that threaten to overturn the
results of the
election for President of the United States violates the Equal Protection or Due Process Clauses, or the First Amendment.”
^*

Something
’s gotta stick. Especially with a U.S. Supreme Court that consists of seven Republican appointees.

Tribe, brought back to work on the vice president’s response, writes that this is a task that has been expressly delegated
to the state of Florida by the U.S. Constitution’s command in Article II that “[e]ach
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.” (Emphasis added.) The brief “thus is a patent attempt
to federalize a state law dispute over whether a manual recount is authorized and appropriate.”

Equal-protection claims are nonsense, Tribe writes; “manual recount procedures, like those that are included in Florida law,
are a completely ordinary mechanism for ensuring the accuracy of vote-counts in close elections.” Meanwhile, Tribe writes,
“different counties within states routinely use different equipment and different ballots for the conduct of their elections”—why
wouldn’t that fact be considered an equal protection violation?

If the
SCOTUS
cuts in, Tribe maintains, “it would only diminish the legitimacy of the outcome of the election.”

“I have a brief statement to make,” house speaker Tom Feeney tells reporters on November 22. “I would encourage you to pay
close attention to it.”

Feeney’s itchy. He’s been looking for a way to help Bush and put an end to it all since the day after the election, when Don
Rubottom told him the legislature might have the power to step in. And the Florida Supreme Court just opened the door and
invited him into the chaos.

“In my view, the court’s ruling indicated the tremendous lack of respect that the Florida Supreme Court has for the laws of
the state of Florida and the legislature,” Feeney says. The court “could have given us a resolution. Instead, I fear, it has
given us a potential constitutional crisis.”

Deadlines exist to be followed, the state house speaker says. But the court doesn’t seem to have any respect for the election
scheme as designed by the legislature. This is just the latest in a long list of feuds between the two bodies—a crossfire
that Al Gore has run straight into.

Feeney’s charged by Rubottom’s research and the work his aide’s done with legal scholars. Rubottom has been in touch with
UC-Davis professor Michael Glennon, who wrote a November 19 op-ed in the
Washington Post
that Rubottom liked about “a curious provision in the 1887” Electoral Count Act, which “makes it possible for the legislature
of a state to resolve disputes concerning the validity of its electors. If a state fails to make a choice on Election Day—because,
for example, of recounts, court challenges, or the need to count absentee ballots—the law provides that ‘the electors may
be appointed on a subsequent day in such a manner as the legislature of such state may direct.’” After reading that, Rubottom
called Glennon, who advised them to immediately step in.

Rubottom then called around, looking for lawyers to hire. Over at the Bush Building, Jimenez and John Manning recommended
a University of Utah professor named Mike McConnell. And though McConnell couldn’t do it, he recommended Harvard Law professor
Charles Fried, a former solicitor general in the Reagan administration and Bush–Cheney campaign adviser. Fried gladly agreed
to come on board ($350 an hour, capped at $60,000), but he was savvy enough to realize that—as a former Massachusetts supreme
court justice who ruled in favor of counting dimples in
Delahunt
—the state house might want a legal spokesman who didn’t have to defend such a ruling. So they also brought in his Harvard
Law School colleague Einer Elhauge.

Elhauge is an antitrust Harvard Law professor who wrote a November 20 op-ed in the
New York Times
supporting Bush’s
SCOTUS
case against the Florida canvassing boards. “The Bush lawsuit is not against manual recounts,” he argued, “but against an
election system run by partisan county officials who lack any objective standard for whether or how to conduct manual recounts,
and who have allegedly exercised their power in a discriminatory fashion.”