Down & Dirty (61 page)

“I have spoken to a prominent law professor today,” Feeney says, referring to Fried. “I have invited him and have issued an
opportunity for him
to decide to give the Florida house of representatives advice about our constitutional responsibilities, our options, and
prerogatives. And until I have that advice, I don’t intend to take any further formal steps.”

Not publicly at any rate. But Frank Jimenez spends some time Wednesday with house republican leader Mike Fasano. When asked
about this, Jeb’s spokeswoman, Katie Baur, tells reporters, “If the legislature were to call a special session, Frank would
be the person solely responsible for advising the governor on the appropriate action.”

Waitasec. I thought Jimenez had recused himself to work for the
other
Bush. Unless of course they’ve dropped the pretense?

In the actual
Pullen
case cited by the Florida Supremes, Judge Francis Barth was ordered to reexamine twenty-seven ballots with all sorts of marks
on them. Barth took the Illinois Supreme Court’s order to mean that dimples
could
count, but he didn’t say they necessarily
would
count. A hanging chad would be a vote, sunlight through the chad would be a vote, and a dimpled chad could be a vote, based
on “other considerations of the ballot itself.”“I do not infer from that [the Illinois Supreme Court order] that there had
to be a partial dislodgement in order for the ballot to be considered,” he said.

Barth tossed out nineteen ballots for having no clear intent, he accepted four ballots with pinholes in the chad, three with
hanging chad, and one other, Remand Exhibit 19. He ruled that Exhibit 19 was a vote because of a pattern of seven other dimples
on the same ballot—and not one clearly punched-out chad. He referred to the
Delahunt
case twice—in which the Massachusetts Supreme Court ruled that it wasn’t convincing that a voter would have come down to
vote and not cast a vote for anyone.

On the other hand, Remand Exhibit 27 featured maybe twenty dimples, along with some clear punches, and Barth ruled that in
that case the pinhole in the
Pullen
chad was not sufficient.

In entering the murky world of the chad rulings of Barth’s courtroom a decade ago, a couple things are clear:

1. the references by both Baker and the Bush talking points to the Illinois case being only applicable to “hanging chads” are
   dead wrong, either a mistake or a lie; and
   
2. the
   Chicago Tribune
   account of it all, which Boies is relying upon—“An indentation in the chad can clearly indicate the voter’s intent”—is too
   simplistic, whether the fault of the reporter or the source, Pullen attorney Michael Lavelle, or both.
   

On Tuesday night, Gore attorney Mitchell Berger seeks out Lavelle, after having read that day’s
Chicago Tribune
story. The team is disappointed that the Florida Supreme Court didn’t give them a specific statewide standard other than
“intent of the voter.” But since the court did cite
Pullen,
the team thinks it would be a great idea to get Lavelle to sign an affidavit testifying to the fact that dimples counted
in
Pullen,
as the
Tribune story
stated.

Shortly before midnight, Berger calls former Democratic committeeman Larry Suffredin, who suggests that Berger conference-call
in Illinois state senator John Cullerton, who’s Lavelle’s buddy, and get him to phone Lavelle.

“Sorry for waking you up,” Cullerton says to Lavelle a few minutes later. He asks him if the
Tribune
story was correct today, and if so, if he minds if he gets a Gore attorney on the phone.

Sure, Lavelle says. No problem.

Berger gets on. “Is the story true?”

Yes, Lavelle says. Barth counted dimpled ballots.

“Do you have any records from the case?” Berger asks.

“No,” says Lavelle, “all I have is an abbreviated file.”

“Could you get the full file from the courthouse?” Berger asks.

“Well, since it’s ten years old, it won’t be in the courthouse, it would probably be in storage out at the warehouse,” Lavelle
says. “That’ll take a couple of weeks.”

Lavelle is asked if he would be willing to sign an affidavit attesting to the fact that dimpled ballots were counted.

“Yeah, no problem,” Lavelle says. “That’s what happened.”

“That could be very helpful to us,” Berger says, because the Florida Supreme Court’s opinion today was very unclear.

Berger asks Lavelle how early he could start on it.

Well, I’ve gotta talk to my secretary, he says. “Certainly not before seven-thirty or eight, local time.”

“Well, the earlier you can get in the better,” Berger says. “I would sure appreciate it.”

Wednesday morning, Lavelle gets into work early, and there’s a draft affidavit waiting for him from the hyperactive Berger.
“The trial court determined that seven (7) indented or dimpled ballots reflected the voter’s intent to vote for Pullen and
one (1) indented or dimpled ballot reflected the voter’s intent to vote for Mulligan,” it says. After a few changes here and
there, Lavelle signs it.

That afternoon,
Tribune
reporter Dan Mihalopoulos phones up Lavelle.
He’s being told by Republicans that only ballots with light shining through the chad counted. Do you have any of those records
left?

Lavelle doesn’t; he reduced his loads of paper long ago. He tells Mihalopoulos to check out the ballots. The warehouse where
the records are kept is only a couple miles from the courthouse. If you get a hold of the PR person down there, maybe you
can get a hold of the ballots, Lavelle says.

Two hours later, Mihalopoulos pages Lavelle; the courthouse employees have no idea what the hell case he’s talking about,
they can’t find it on the computer. Lavelle gives him some more information and steers him toward the county division of the
circuit court, which is a smaller division with better records.

Shortly after 5, Mihalopoulos calls Lavelle again. He found the file. While there, he also stumbled into Burt Odelson, who
was Mulligan’s attorney in the
Pullen
case, who was just returned by the Bushies. “Mike, I’m sorry to tell you that it looks like the only ones that counted were
the ones that had light through,” Mihalopoulos says.

“How many were counted with dents?” Lavelle asks.

“I can’t find
any
that were counted with dents,” the reporter says.

“Read me what Barth said,” Lavelle asks.

Mihalopoulos reads him a few snippets from the 155-page transcript, statements by the judge from the early part of the transcript
before Barth starts actually assessing the ballots.

Mihalopoulos does
not
read Lavelle the excerpt that has Barth saying,“The light standard is not the litmus test, in my view. If there is a dent,
a voter’s intent may be established from other considerations of the ballot itself.”

Mihalopoulos does
not
read Lavelle the excerpt that has Barth looking at Remand Exhibit 19, when the judge says that “the light standard shouldn’t
be the only standard” while accepting the ballot because there are eight other dimples upon it and none that are cleanly punched
out.

But what Mihalopoulos
does
read him, however, makes Lavelle panic. He thinks he’s issued an affidavit that could be construed as misleading. He never
mentioned light passing through.

Mihalopoulos goes to write his story. He’s on deadline.

Cullerton calls Lavelle that night.

“I’m glad you called,” Lavelle tells him. He tells him the problem, that his affidavit could be construed to be misleading.
After they talk a bit about it, they get Mitchell Berger on the phone.

I think I was wrong, Lavelle says to Berger. Dimpled ballots counted, yes, Lavelle says, but according to the
Chicago Tribune
reporter, it was only
dimpled ballots with pinpricks of light through the chad. So my statement was incomplete.

“We’re fucked!” Berger says.

“I’m sorry about that,” Lavelle says.

“We have got to get an affidavit on file!” Berger says, explaining that the Gorebies have already used the affidavit before
the Broward County canvassing board and submitted it to LaBarga. “We have got to correct the record!” Berger continues. “We
can’t let this sit!”

Lavelle arrives early at work on Thursday, November 23. He writes a corrected affidavit, saying that he had a “mistaken recollection”
that all dimpled ballots counted. He says that he was told by a
Chicago Tribune
reporter that the only ballots that counted were ballots with light shining through. At this point, Lavelle still hasn’t
read the transcript.

That morning’s
Tribune
has a story by Mihalopoulos and D.C.-based reporter Jan Crawford Greenburg, with the sub-headline “Illinois Case Offers Shaky
Precedent.”
Pullen
“may not be the legal home run they [on the Gore legal team] believe will aid his quest to win Florida’s 25 electoral votes
and the White House, an analysis of the ruling shows,” the
Tribune
story says. Barth “exclude(d) dented ballots, since he had decided he could not reasonably determine the voters’ will by
examining the ballots. In fact, in the Illinois case, the dented ballots were not counted at all.”

In fact, this is not the case. At the very least, the reason that Barth accepted Exhibit 19 was subject to debate, and should
have prevented the
Tribune
from making any definitive ruling along the lines of “in the Illinois case, the dented ballots were not counted at all.”
And of course, Mihalopoulos played a rather sizable role in establishing the “shaky foundation”
^*
referred to in the story’s sub-headline.

On Thursday, November 23, in Fort Lauderdale, Broward County Courtroom 6780, a GOP attorney named Michael Madigan shows up
at the canvassing board with the new affidavit and the September 1990 testimony from Barth’s courtroom. “You’ve been provided
a false affidavit and
we have the court transcript, which demonstrates that dimpled ballots or indented ballots, contrary to what Mr. Boies told
you, in Illinois were not accepted!” Madigan says excitedly. “It’s reported in this morning’s
Tribune
!”

So? Lee asks. “We have a supreme court decision of the state of Florida that trumps what the Illinois court says or what any
of the other courts say,” he says.

Madigan’s going a little bananas. “If we do our business based on a false affidavit, and you had a gentleman that came in
here and provided you with a false affidavit—”

“I need a deputy on standby to remove somebody who is out of order, please,” Lee says. “I’m not going to put up with this,
sir. You have not been asked to speak. I told you, we are bound by the supreme court case, I’m not basing my decision here
today on anything that someone says in an affidavit.” Madigan clams up.

Having failed to use the Lavelle fiasco to change anything in Broward, the Bushies now try a new attack based on the fact
that the Gore legal team waits until Monday, a full four days—until
after
Harris has certified the election on Sunday—before it presents the new affidavit to Palm Beach County. And what’s more, the
Bushies say, Boies and Berger
never
gave the new affidavit to the folks in Broward. Berger responds to this by saying that he had been told that Lee didn’t want
any more affidavits, that he found the whole Lavelle business irrelevant; he was focused on the ruling of the Florida Supreme
Court. And while it’s true that LaBarga won’t receive the new affidavit until Monday, November 27, that’s because the courthouse
was closed Thursday and Friday for Thanksgiving. As one senior Bush attorney will later confide to me,“That whole Lavelle
thing was bullshit.”

But
Pullen
will rear her head again.

Their work in Miami-Dade completed, the Bush protest caravan drives north on I-95 to the Broward County courthouse in downtown
Fort Lauderdale.

When they’re not hand-holding and canoodling, Bush advance staffers Todd Beyer and Leslie Shockley drum up the crowd. Literally—Beyer
actually beats a drum. Blakeman yells on his megaphone: “You’re not going to steal this election!” Meanwhile, Bush spokeswoman
Lani Miller organizes protesters.