Down & Dirty (78 page)

Friday evening, Zack deposes a tall cowboy named John Ahmann. Ahmann, one of the refiners of the punch-card ballot back in
the 1960s, is a Bush witness flown in from California to try to shoot holes in Zack’s chad buildup theory. Sometime during
the deposition, Ahmann mentions that he holds a patent for a new kind of stylus.

“You know what? I bet he’s got other patents,” Zack thinks. He calls Jennifer Altman, a partner at the Miami office of his
forty-lawyer firm, Zack Kosnitsky, and asks her to find out everything she can.

Altman spends the weekend, she later says, “looking for anything on this guy. I spent a lot of time on the phone, on the computer,
finding whatever research I could.”

Before statistician Hengartner testified before the Palm Beach canvassing board last Friday, he was up all night preparing
the affidavit he was going to present to the board. In it, he hoped to outline his predictions of how many votes should turn
up while they waded through the undervotes. One of the comparison races Hengartner used involved the 1998 Palm Beach ballot,
and the fact that there were more undervotes in the senate race than there were in that year’s governor’s race. His guide
in Palm Beach was Neal Higgins, twenty-five, a second-year Harvard Law student, who, Hengartner believed, told him that the
governor’s race was in the second column—thus lending credence to the theory that there were more problems in the first column.

But after he’s flown to Tallahassee, Hengartner still hasn’t seen the 1998 Palm Beach ballot, he still doesn’t have the hard
data. So he asks one of the Gorebies, Mike Farber, to take the reference to those 1998 races out of his proffer
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before Sauls. This does not escape the notice of one of Beck’s favorite witnesses, Laurentius Marais, a statistician from
South Africa whom corporate America—Big Tobacco, lead-based paint manufacturers, etc.—relies on quite a bit to shoot down
the theories of plaintiffs. Theories
like, say, Philip Morris misrepresented the health effects of smoking. Or that kids who chew on lead-based paint have slower
intellectual development.

Marais calls Palm Beach, obtains a sample copy of the 1998 ballot that Hengartner referred to in his Palm Beach affidavit,
about which he has removed all mention in his proffer. “I think we may have a piece of information that will be quite useful
in your cross-examination of Professor Hengartner,” he says to Beck.

He explains.

“Holy shit,” says Beck.

That night, Bartlit Beck junior partners Shawn Fagan and Sean Gallagher are about to go depose Hengartner and Brace, respectively.

Beck tells them about all the good stuff he has on Hengartner and Brace, the ways he’s planning on taking them down. So he
tells Fagan, a Harvard Law grad who clerked for Rehnquist, and Gallagher, a Michigan Law grad who clerked for O’Connor, to
take a dive. Beck doesn’t want them to tip off the Gorebies’ witnesses as to what they have, so they can adjust their testimony.

“You are under strict instructions not to ask any smart questions,” Beck says with a smile.“I want you guys to take the worst
depositions ever taken. If you ask anything about the 1998 Palm Beach ballot, you’re fired,” he says to Fagan. And to Gallagher,
he says,“I don’t want you to ask anything about the rubber on the left-hand side of the Votomatic. We got great stuff, and
I don’t want to scare them off.”

Fagan and Gallagher go off, spending most of their depositions asking the Gore witnesses what courses they taught in college,
what books they used as course materials, where they went to school, inanities such as that.

Afterward, they huddle with Beck, talk about the few things they were able to learn, and brag about which deposition was dumber.
Before they all retreat to their hotels for an hour or two of sleep before the trial, Terwilliger and Ginsberg grab Beck.
Whaddaya think? they ask.

“I suppose I should be lowering expectations,” Beck says. “But the truth is, we’re going to massacre them.”

I
n Courtroom 3-D, circuit court judge Sanders Sauls doesn’t look like he’s enjoying this any more than the rest of the nation
is. He’s scowling, even frowning a bit. Sauls had said that he wanted this to be a twelve-hour hearing, winnowing down the
number of Bush witnesses from ninety to twenty.

Doesn’t he know that nothing happens quickly in Florida? Heck, that’s why people
live
in Florida. This is the state where a quartet of senior citizens can paralyze a four-way intersection for an hour while they
wait for the other Cadillac to move first.

“Let’s get all the fluff off,” Sauls said on Friday. Following his lead, Boies and Richard begin Saturday with a bipartisan
motion-and-second to try to keep their opening remarks concise.

And we’re off. Though we’ve all learned by now that this thing could end up anywhere—being decided by the U.S. Supreme Court,
the Florida legislature, the U.S. House and Senate, or the fat Baldwin brother—Gore’s legal team has pinned a lot on this
case. If not on Sauls, then at least on the case they’re about to present here.

Boies steps up and declares that “the issue before this court is ‘Is there, or are there, legal votes that have been rejected?’”
It doesn’t matter why Harris didn’t accept Palm Beach County’s post-deadline numbers, Boies argues. What matters is that the
county tabulated votes that Sauls now should include for Gore, votes that could certainly affect Bush’s margin of victory,
Boies notes, “which, as everybody in the country and probably the world knows, is five hundred thirty-seven.”

He ends after about fifteen minutes, telling Sauls that he’s “not going to spend time arguing ‘the right to vote,’ or any
of that.”

Now it’s Richard’s turn, and he comes out swinging, saying that Boies’s arguments are “unreasonable and contrary to Florida
law.” “If we accept Mr. Boies’s premise, there is no reason for a tabulation on Election Night,” Richard says. Just ship all
the ballots to Tallahassee after the election and have all the judges count them. Rather, “the conduct of the canvassing boards
comes to this court with a presumption of correctness.”

And besides, Richard continues, Boies has to prove “whether or not the Miami-Dade, Palm Beach, or Nassau canvassing board
has abused its discretion, not only that it acted wrongly but also acted in a fashion that no reasonable person would have
done.” Boies, Richard points out, has soft-pedaled this premise since first introducing it on Tuesday to a somewhat skeptical
reaction from Sauls.

Other attorneys in the room get a moment to speak. Fresh off his U.S. Supreme Court appearance, Klock has a quick give-and-take
with Palm Beach County canvassing-board lawyer Andrew McMahon. Michael Mullin, representing the Nassau County board, says
that he will easily and handily dispense with the Gore complaint against his board.

Throughout the day, a cluster of protesters remains gathered outside the courtroom. Gore supporters are singing “This Land
Is Your Land,” as one from their number strums an electric guitar. The Bush backers hold signs jeering Gore as a sore loser;
one from their crowd is dressed as Darth Vader. A man in sackcloth with a fifteen-foot crucifix argues that only Jesus can
bring this nation together.

Inside, Zack calls the team’s first witness, Kimball Brace, dressed like the prototypical D.C. bureaucrat, shaggy beard like
Grizzly Adams.

The Gorebies haven’t devoted an inordinate amount of time to tracking down the very best witnesses. After Hengartner had testified
before the Miami-Dade and Palm Beach canvassing boards, DNC staffer Jason Fuhrman had e-mailed Klain and a couple others,
asking them if they wanted to keep using the Yale statistician. The DNC had since talked to other statisticians who were both
more experienced and higher profile. But the Gore-bies were happy with Hengartner; Boies thought he had done a fine job in
Palm Beach, and after all, Hengartner was a known quantity.

But what about his idea that there was something wrong with the voting machines? That somehow, for some reason, it became
tougher to punch
holes in ballots in the first row? Rouverol, at eighty-three, was a little long in the tooth. So Zack looked through newspaper
articles and saw that the expert quoted most was Kimball Brace, president of Election Data Systems, a consulting firm in the
D.C. area.

“Can you help us?” he asked Brace, after explaining what he was looking for.

“Yes,” Brace responded. And now here he is.

Brace says that for the last twenty years, his company has compiled information on “what kind of voting system is used in
every single county in the country.” Zack brings Brace’s own Votomatic out, Exhibit 52, and Brace proceeds to show how it’s
supposed to be used: ballot slid into Votomatic, stylus through the hole of the machine and the ballot underneath, chad punched
out. “Unfortunately,” Brace says, “it doesn’t always work that way.”

Beck objects. Brace, Beck says, is “a professional demographer” without the expertise to talk about the Votomatic. Beck steps
up for a voir dire
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examination, says that “in fact what you’ve been doing for the last twenty-five years is things like advising the Democratic
Party in redistricting fights.” Brace’s degree, Beck reveals, is in political science, not mechanical engineering.

The point won, the task of questioning returns to Zack. Brace says that after looking at the Palm Beach voting devices earlier
in the week, he concluded “that there was more extensive wear of that template on the left-hand side than on the right-hand
side, which would be understandable and normal in the course of business, in terms of the use of the voting equipment. The
left-hand side of these machines gets more use, because when an election administrator sets up the ballot, he generally starts
from the left-hand side and moves to the right-hand side as the ballot is filled out.”

Brace says that dimples can be formed when ballots are put on top of the Votomatic instead of slid inside them.

“I want to inquire, if I may,” Sauls asks. Do the voter instructions say to make a dimple?

“Well, they’re not instructed to create dimples,” Brace says, “they
do
create dimples.”

There are other ways, too, dimples can be formed, Brace says. If “the machines are not cleaned out on a regular basis and
there’s chad buildup and, therefore, the voter may not be able to push down as firmly.” Or if the stylus goes in the hole
at an angle, instead of straight in. Or if the rubber strips on the device aren’t “properly maintained,” and they “become
old, brittle, hard, and keep a voter—”

“Your Honor,” Beck jumps in, a 180-pound sneer, “may I voir dire on this expertise?” Sauls holds him off; cross-examination
is coming. Brace ends by saying that hand recounts are necessary.

Now Beck is ready to roll. He asks Brace to use the machine and vote without making a dimple.

He does.

“Did it work?” Beck says.

“Yeah,” Brace replies. “I voted for number five.” Gore.