Down & Dirty (75 page)

On Wednesday in the Bush Building, Beck is not feeling the love.

Richard’s going to be handling opening and closing arguments, Terrell’s handling the Miami-Dade deal, Bartlit’s on Broward
and Nassau, Bristow’s been dispatched to Orlando to help the Republicans fend off the Seminole war.

Beck’s in charge of destroying the Gorebies on dimples. But every time the team meets with Ginsberg and Terwilliger to discuss
strategy, and Beck
tries to turn the conversation to what might happen should Sauls—or, more likely, the Florida Supreme Court—actually order
ballots to be recounted, Beck starts talking about what standards he feels the Bushies should push for, and the Bush lieutenants
blanch.

We don’t ever want to get to the point where there’s a hand recount of anything, Ginsberg and Terwilliger say. We don’t want
to concede the point!

Beck knows this. Yes, he says.
Of course.
But if there ends up being a count, we need to have standards we can argue. Hanging chads, sunshine, dimples—they need to
be prepared to argue in favor of what Beck thinks are honest standards, like the ones Burton used in Palm Beach.

But the reaction Beck gets doesn’t fill him with confidence.
Like the ones Burton used in Palm Beach! Where Gore picked up votes in that bogus recount?
It’s my job to be a defeatist, Beck responds. That’s my job—to prepare for anything that can happen.

There’s another argument Beck is preparing that is met with a degree of reluctance: the idea that undervotes come not from
anachronistic voting devices but from the clear fact that there were a lot of people out there who found both Gore and Bush
unpalatable. It’s not that anyone tells Beck not to make the argument that plenty of Americans found both Bush and Gore rather
wanting. Indeed, in a way the Bushies’“no vote” claim is in sync with this line of thinking. But when Beck articulates the
idea that millions of Americans gagged at the prospect of either one of these jokers at the helm, the Bush lieutenants wince.
When Beck explains it to guys who’ve lived the last several months trying to persuade America to vote for Bush, their automatic
reaction is to cringe.

It had been agreed on Tuesday that when Boies tried to get Sauls to bring the Miami-Dade and Palm Beach undervotes up, the
Bush lawyers would argue that all the ballots should be brought up. They want to plop the whole 1.8 million—all 653,000 Miami-Dade
ballots, and all 462,000 Palm Beach ballots—in front of Sauls. Make him see the absurdity of it all, gum it up. And, of course,
the statute never refers to undervotes, it refers to all the ballots. But Richard, taking the lead, never really made that
position clear. Still, they got so much that it seems debatable whether to ask for any more.

On Wednesday, reports from GOP observers in Miami-Dade—mostly Lampkin—indicate, if you’re inclined to believe them, that there’s
some question as to how the ballots were being handled as the undervotes were being sorted out. Beck is preparing to argue
that there were questions as to whether the integrity of the ballots was being preserved.

As he’s leaving the Bush Building, heading to Sauls’s courtroom, a guy Beck thinks is Bush’s senior legal adviser approaches
him.

“Tell the judge that he’s gotta bring
all
the ballots up,” the guy says.

“I can’t tell him that,” Beck says.“That was yesterday’s argument, and that ship has sailed. He’s already decided that only
the undervotes are coming.”

The guy looks at Beck, as serious as a funeral.

“Tell him that he’s gotta bring
all
the ballots up,” the guy repeats. “It’s important. Tell him he’s gotta bring
all
the ballots up.”

Beck nods. OK.

Terrell and Beck get into the elevator.

“This is just great,” Beck says.“I got the client giving me these impossible instructions. We’re going to look like jerks;
the judge is going to think we’re idiots. But, you know, he’s the Bush legal adviser, so I gotta do it.”

First thing before Sauls, Beck raises the point: if you’re going to bring them up, you need to bring them all up.

Sauls asks Greenberg via speakerphone: is this possible?

“We will do that if Your Honor so rules,” the ever-agreeable Greenberg says. But it wouldn’t be until late Thursday night
before we could get all of them packaged up and driven up to Tallahassee.

The voice from Palm Beach County says the same.

“Is it going to be a convoy?” Sauls asks. “How many semis?”

Beck says that the Bushies are worried about the ballots. Our observers saw some things they didn’t like, he says. You gotta
bring them
all
up, Beck insists.

Greenberg objects to Beck’s characterization of what’s going on, but Beck doesn’t respond to this. He just keeps stating that
something is rotten in the county of Miami-Dade, and that all the ballots need to come up to Tallie.

And
he wants to have a representative in the convoy.

“You got a spare tire on the back of any of those that somebody could ride for each side?” Sauls asks Greenberg.

“I have a lot of ideas, Your Honor, but I won’t enunciate them,” Greenberg says.

Boies steps up and says that there’s no reason why the undervotes can’t come up at once. They don’t need to wait for the rest
of them to be shipped up.

Wrong, says Beck, vociferously.“I’m concerned about the integrity of the evidence here,” he says. “And we’ve had a lot of
sorting that I don’t think should have taken place….I think we ought to get all the ballots up in a unified way, ensuring
the integrity of the evidence.”

“I’m going to leave it to them,” Sauls says. “What do you all want to do down there?” he asks Greenberg. “Do you want to send
up two times or do you want to do it once? It’s your call.”

“One time, from Miami,” Greenberg says.

“One time it is,” Sauls rules. Court dismissed ’til tomorrow.

On the way out of the circuit courthouse, and back in the Bush Building, Beck is a hero. Everyone’s congratulating him for
the stroke of genius. Beck thinks that the lawyers are looking at him with a newfound respect. Like, “Oooh, this guy takes
the initiative!”

Amid the minor celebration, Beck confides in Summers.

“The reason I did this was because Bush’s legal adviser over here told me to,” Beck says. “I don’t even know the guy’s name.”

“That’s not Bush’s legal adviser,” Summers says. “That’s just some precinct captain who wandered in.”

What? Beck asks. You mean this is just some hanger-on who buttonholed me and was just giving me a piece of mind?!

The two crack up.

Wednesday, Theresa LePore finally sends Katherine Harris the official Palm Beach results. She had to audit the final count,
double-checking numbers on the spreadsheets.

It’s not 192 net Gore votes, as the Gorebies were asserting Sunday night, nor is it 215 net Gore votes, as they’re asserting
in their legal briefs. It’s 174 net Gore votes.

LePore keeps hearing the Democrats using this “215” number. She asks Newman where they got it. Newman tells her that that
was
their
count. LePore’s amazed. That’s simply not the number.

Over at the legislature, the fait accompli is well on its way.

When it starts up on Tuesday afternoon, the committee has changed its name to The Select Joint Committee on the Manner of
the Appointment of Presidential Electors. And as the old name is tossed, so is any pretense that this is about anything other
than setting up a safety net in case somehow Gore ends up with the state’s 25 electors.

McKay says that he and his colleagues “firmly and unequivocally believe the state supreme court overstepped its proper boundaries
in an arbitrary manner.” And the Select Joint Committee on the Manner of the Appointment of Presidential Electors’ “unbiased”
experts say the same thing. Argues
Elhauge,“There is no doubt of the right of the legislature to use that power at any time.” “It is your constitutional duty”
to appoint Florida’s electors if none are yet chosen by December 12, says John Yoo, a constitutional law professor at Cal
Berkeley and a former clerk for Supreme Court justice Clarence Thomas. “I don’t think it would be appropriate to avoid that
duty by waiting until the last minute….You don’t have the discretion
not
to pick the electors.” The legislature has to appoint electors, says anti-gay author Roger Magnuson. Your power to do so
is “plenary and full and absolute.”

What a coincidence! That’s just what McKay and Feeney were thinking!

And Jeb, too!

“If there is uncertainty, the legislature has clear delegated authority from the U.S. Constitution to seek the electors. I
admire them for at least on a contingency basis accepting that responsibility and duty,” W.’s younger brother states.

Democrats are just plain pissed.

“Are we meeting to set the stage for a special session to guarantee the presidency to George W. Bush?” asks Democratic state
representative Ken Gottlieb. “We should not serve as an insurance policy for a Bush presidency. We should serve to ensure
every vote is counted and the real winner, whoever he may be, receives Florida’s votes to be the next president.”

“Why are we here?” adds senate minority leader Tom Rossin, from West Palm Beach. “Florida
has
its legal electors.”

Rossin doesn’t appreciate the amicus brief Feeney filed on Bush’s behalf before the
SCOTUS
. “This brief hardly represents the Florida legislature,” he says. “There was not one meeting held, not one vote cast.

“Do you think the Supreme Court knows this brief only represents the views of one party?”

But a better question might be: do you think it cares?

T
he SCOTUS is
the
place to be Friday morning. An A-list affair with lines down the block to get in.

One pew alone features, from left to right: Daley, Christopher, former GOP Senate majority leader Howard Baker of Tennessee;
Sen. Fred Thompson, R-Tenn.; Barbara Olson; and Sen. Ted Kennedy. Karenna Gore Schiff is in the house, as is the Republican
governor of Michigan, John Engler, and Judge Burton. Al Cardenas is here, with losing Senate candidate Rep. Bill McCollum,
R-Fla., by his side. As are Gore veep short-lister Sen. John Edwards, D-N.C., and former Clinton Justice Department Microsoft
nemesis Joel Klein.