Down & Dirty (85 page)

Florida was a statistical tie, Kirsch says. So why not give Bush 12½ electoral votes and Gore 12½? He devises many methods
on what might serve as a reasonable remedy for the butterfly ballot case—giving ½ a vote to Gore and ½ to Buchanan for each
Gore-Buchanan overvote. Or random allocation of these overvotes to all the candidates. Or proportional allocation. The one
result all of Kirsch’s various number crunchings have in common: each one of these plans would hand Gore the presidency.

On Monday, November 27, Davis speaks with Dexter Douglass and David Boies about Kirsch’s various remedies. They’re gracious
but not really interested. They’ve decided against pursuing anything in the butterfly ballot realm, they say. Kirsch’s remedies
end up working their way into various footnotes and supporting documents in the Seminole, Martin, and butterfly ballot lawsuits.
But nothing really ever comes of the hard work and wacky ideas of the California billionaire who founded Infoseek.

Before Judge Sauls can give his judgment on Monday, December 4, the SCOTUS steps in. The SCOTUS justices had spent the weekend
unsuccessfully trying to find a way that they could rule unanimously. Breyer, Ginsburg, Kennedy, and Stevens saw the Florida
Supreme Court as having tried to iron out contradictions in the state law; O’Connor, Scalia, Souter, Thomas, and Rehnquist
felt the court essentially rewrote the law that had set certification for November 14. Moreover, they were not satisfied that
their Florida colleagues had done so using sound legal reasoning.

Justice Ginsburg had been the one with the brainstorm; during oral arguments on Friday, she had said, “I suppose there would
be a possibility for this Court to remand for clarification.”And so sayeth the SCOTUS on Monday morning: “After reviewing
the opinion of the Florida Supreme Court, we find that there is considerable uncertainty as to the precise grounds for the
decision. This is sufficient reason for us to decline at this time to review the federal questions asserted to be present….
The judgment of the Supreme Court of Florida is therefore vacated,
^*
and the case is remanded for further proceedings not inconsistent with this opinion.”

This is not the victory they could have been given, Carvin explains to one of his colleagues in Tallahassee, but it’s good
enough. It smacks down the Florida court’s decision, essentially saying that the SCOTUS is mystified, unanimously, as to how
they came up with that November 26 deadline. So mystified that they’ve sent the whole thing back with a demand for a better
explanation.

The Bushies obviously feel this bodes well for them in the different case in front of Sauls. With Sauls in his chambers mulling
over the most important judicial decision of his life, it will surely help their case for him to know that all nine SCOTUS
justices think that the Florida Supreme Court was wiggety-whacked when they came up with that November 26 date.

Still, predictions of what’s going to happen next run the gamut. The strutting Beck is confident, as he always is in every
case, that they’ll win on every count. Bartlit wonders if Sauls might rule for them while also ordering some counting to take
place in anticipation that he’ll get reversed by the Florida Supreme Court. Ginsberg, as always, is the worrywart, refusing
to take anything for granted, giving into his never-ending, world-is-too-much-with-him angst until the facts prove his pessimism
wrong.

The Gorebies tend to side with Beck on this one. Anticipating a resounding bitch-slap, they write up their notice of appeal,
typed nice and neat, and stick it in Jeremy Bash’s briefcase.

At 4:40
P.M.
, Sauls calls us back into Courtroom 3-D. Beck was right: Sauls gives the Gorebies
nothing,
not a thing, not a scratch or a lick or a whit of what they wanted. A big fat Southern-fried No.

“The court must find for a fact that a legal basis for recount must exist before ordering such a recount,” Sauls drawls in
his North Florida accent, glasses perched on the edge of his nose. “It’s not enough to show a reasonable possibility” that
the outcome of the election would have been changed because of illegal votes counted or legal votes not counted, Sauls says.
“Rah-ther, you have shown a reasonable
probability
. In this case, there is no credible statistical evidence” that such a case was proved. The Gore legal team, Sauls says, didn’t
“establish any illegality, dishonesty, gross negligence, improper influence, coercion, or fraud in the balloting and counting
process.”

One by one, Sauls goes down the Gore claims and crosses them off the list of arguments he was willing to buy. They didn’t
show that votes from a partial hand recount should be counted. They didn’t show that the Miami-Dade, Palm Beach, or Nassau
county canvassing boards abused their discretion.

He declares the matter over, notes that the hundreds of thousands of ballots that had been shipped to Tallahassee via Ryder
Truck would remain in court custody pending an appeal, and leaves the room.

Christopher’s associate from Los Angeles, Mark Steinberg, motions over to Bash, sends him on his way. The appeal will be filed
before any of the Gore lawyers even leave the room. Boies, Douglass, Zack, Berger, Steinberg, et al., politely congratulate
the victors who so ably represented Bush: Richard, Beck, Terrell, Bartlit, Ginsberg, et al.

“David, nobody else could have even made this close,” Terrell says to Boies.

Boies walks out of the chambers with a big grin plastered on his face, very Gore-like in a way.

When are you going to appeal?

“Right now,” he says.

Douglass is asked the same question.

“It’s probably being done as we speak,” he says.

Terrell approaches Terry Madigan, one of the attorneys who represented actual Florida voters—Bush backers, all—who were allowed
to act as intervenors.

“We appreciated it,” Terrell says, presumably of Madigan’s efforts.

“Thank you for saying that,” Madigan says.

“Well, we mean it,” Terrell says.

Cameras and boom mikes surrounding them like piranhas, the Gore team turns left, to a holding room near the circuit court
judges’ chambers, while the Bush team turns right, to the court administrator’s office.

In the Bush room, there’s a huddle among the twelve lawyers, a round of bear hugs and back-slapping. In Goreland, things are
less jubilant. Boies asks if they should go down to the rotunda on the first floor and talk to the press. Hattaway tells him,
“We can hold here” since “the Republicans beat us to the podium.”

“No, let’s go down and see what the other side has to say,” Boies says.

Klock is at the podium when they arrive. He’s describing Sauls as “a very thoughtful judge” who pays “a lot of attention to
the law.”

Turns out the rest of the Bush team is still celebrating, so Boies, Douglass, and Zack approach the podium, though only Boies
speaks. Before he can even finish, the Bush lawyers show up and huddle at the side of the media throng before politely retreating
to near the information desk several yards away. Boies faults Sauls for not even looking at the ballots in dispute. “You can’t
resolve that contest without actually looking at the
ballots,” he says. He says he’s never heard of such a case, when a judge in an election contest didn’t even look at the ballots
in question. He adds that the fact that they were examined by canvassing boards is irrelevant to this particular legal phase.
“The contest statute does not provide for any discretion by the canvassing boards,” he says. Then, momentously, Boies says:
“They won. We lost. This is going to be resolved by the Florida Supreme Court. I think whoever wins at the Florida Supreme
Court, we’ll accept that.”

Next come the Republicans. Richard says that Sauls’s ruling much resembles his closing argument from Sunday night. “Judge
Sauls hit every point,” he says. “He even got one I didn’t think of.”

Which one was that?

“I’m not going to tell you which one!” he smiles.

Upstairs, behind Courtroom 3-D, Sauls thanks his staff. He takes a personal call, removes his robe, takes the elevator downstairs
to the parking garage, and skedaddles on home.

At one of the many TV tents across the street from the Florida Supreme Court, Mark Silva, the legendary political writer for
the
Miami Herald,
kindly informs me that some of the Bush attorneys are celebrating at Andrew’s Capital Bar & Grill.

I thank him and phone up ABC’s Chris Vlasto, who’s at the Doubletree. It’s good to have a wingman at times like these, and
Vlasto has now become a pal. I tell him what Silva told me, and that I’ll call him back if the scoop proves correct. Which
it does. Within minutes, Vlasto and I are downing drinks in the midst of Irv Terrell, Fred Bartlit and his wife, Jenna, and
Phil Beck. Plus their many, many junior attorney admirers. Bartlit’s singing the praises of his graphics people; Beck’s downing
beers in a circle of worship. Terrell chats with Jenna.

They’re not too impressed with the Democrats’ case, the lawyers in this bar tell us while they rack up a $2,000 aggregate
bar tab—which includes three bottles of fine champagne.

“As an attorney, I was embarrassed about their case,” one says.

When I tell another that the Bushies put on a great case, he says, “No, we didn’t. We put on a mediocre case. But they put
on no case.”

Bartlit tells me that he feels bad for Boies. “I told him, David, no one in corporate America is ever going to hire you again,”
Bartlit says, honestly concerned for an adversary he respects.

There’s time for idle chitchat, too. Vlasto and I tell Beck how eerily similar in manner he is to Kevin Spacey. He says we’re
not the first to tell him
that. Bartlit is flying off to Delaware tomorrow morning bright and early to represent Micron; for a sixty-eight-year-old,
the dude has some major stamina. Terrell seems kind of eager to tell us that he’s pro-choice and supportive of civil rights.
They all seem like pretty decent guys.

I tell them all that if it weren’t for Vlasto, none of us would be standing here. They don’t understand. With Jackie Judd,
Vlasto broke the story of Monica’s semen-stained dress, I say. Were it not for that, Clinton would still be denying the affair,
and Gore would easily have gotten 1,000 or so Florida votes in the process. Drinks all around.

On Tuesday Terrell tells Baker that for all intents and purposes he thinks that it’s over.

“For what it’s worth,” he says, “we’ve got them pinned between a trial-court victory in front of a Democratic judge, which
the nation has watched, and that Supreme Court remand.”

But soon the Florida Supreme Court announces that it will hear arguments on Thursday for Gore’s appeal. So it ain’t over yet.