Down & Dirty (92 page)

“Al Gore! Three-time loser! Al Gore! Three-time loser!” the small crowd bellows. “Disbar the Supreme Court!” chants Bill Engledow,
thirty, from Warren Robins, Georgia, who has a megaphone.

“I’m just a voter who’s outraged,” Engledow says to me when I ask him what’s up.

The Gore supporters are less exuberant and fewer in number. Every time the small Gore huddle tries to get a chant going, it
gets smashed by the megaphone and aggression of the fifty or so Bush supporters.

“For all the loose talk about crisis or confrontation, let’s be clear about why the votes haven’t already been counted,” Minority
Leader Gephardt says, standing with Daley at the Capitol.

“The Bush campaign has done everything it can to stop a full and fair count,” Gephardt says. “They and their allies have filed
lawsuit after lawsuit to stop the counting of votes. Two weeks ago, Republican Whip Tom DeLay dispatched staffers to Florida,
not to observe the count but to disrupt it.” Other Bushies have been attacking “the integrity of the courts,” Gephardt decries,
unlike Gore and Lieberman, who “have lost several cases during this process, and not once have they criticized the judicial
branch.”

Effuses Daley in a rare moment of optimism, “We are very close to knowing who actually won Florida and who, therefore, won
the presidency.”

Inside the Leon County library, deputy clerk Miriam Jugger approaches Judges Harley and Reynolds at table four. “We are one-third
of the way through,” she says. “Please expect to be here until nine or ten.”

At table three, deputy clerk Denise Bertelsen motions toward the TV camera. “I should turn my head so my family could see
me,” she says.

Judges are sharing mints, apparently mindful of the close quarters. When table two returns from lunch, Judge John Crusoe asks,
“Anyone have onions?”

The SCOTUS brief is signed by Olson, Carvin, Terwilliger, Richard, and Ginsberg. It requests an immediate halt to the recount
until various questions are resolved, so as to prevent Bush and Cheney “from suffering irreparable injury as a direct result
of the erroneous decision” made by the Florida Supreme Court.

“The period between November 7 and today has, unfortunately, been characterized by chaotic and standardless manual recounts
requested by Democratic presidential candidate Vice President Gore in four heavily Democratic counties and by an outburst
of litigation flowing from that process,” they complain. “Because of the Florida Supreme Court’s judicial amendments to the
legislative structure for choosing Florida’s electors, absent a decision by this Court, the election results from Florida
will remain under a cloud of uncertainty.

“The consequence could be a constitutional crisis.”

There have been errors in the vote counting, the Bushies say, a bit hyper-bolically. “During the manual-recount process, ballots
were poked, prodded, rumpled, creased, twisted, dropped, stained, tabbed, and otherwise mishandled. Not surprisingly, this
rough treatment caused massive damage to the ballots.” The whole thing has been chaos, they say, and it’s Al Gore’s own fault.
The “standards for evaluating ballots were changed repeatedly during the recounts….In Palm Beach County, a court ordered the
canvassing board to consider ‘dimpled’ chads, even though the board’s pre-existing 1990 policy precluded treating mere indentations
as valid votes….On November twentieth, the Florida Democratic Party asked the Florida Supreme Court to fashion even more expansive
new standards…. Vice President Gore repeated that request to the Florida Supreme Court on November thirtieth.”

They cite 3 U.S.C. 5 (changing the rules in the middle of the game). They cite due process. They cite Article II (that electors
need to be chosen “in such Manner as the Legislature thereof may direct”). They cite the Voting Rights Act.

And they cite equal protection. Indeed, though the SCOTUS has never shown a willingness to buy into the equal protection argument
as it pertains
to this case, the Bushies hit this one home hard. “By permitting further inconsistent and standardless recounts to be conducted
during the contest proceeding, the court’s order guarantees disparate treatment for similarly situated ballots both in other
counties and within the counties subject to the order. The equal protection violations are compounded by the fact that the
court adopted a standard of ‘selective deference’ to the decisions of the county canvassing boards that… only benefits the
Gore Respondents.

“Florida Supreme Court’s decision imperils Governor Bush’s proper receipt of Florida’s twenty-five electoral votes. The Florida
Supreme Court’s decision raises a reasonable possibility that the November 26 certification of Governor Bush as the winner
of Florida’s electoral votes will be called into doubt—or purport to be withdrawn—at a time when the December 12 deadline
for naming Florida’s electors could preclude Applicants’ ability to seek meaningful review by this Court.”

And, as if the SCOTUS needs reminding, Olson, Carvin, et al. remind the Court that, “remarkably,” the Florida Supreme Court
“did not respond to the questions posed by this Court’s December 4 opinion vacating the Florida Supreme Court’s decision in
Harris.”

In the Leon County library, Leahy is stunned. He doesn’t quite get what this hand recount of his ballots is all about.

Because of Marc Lampkin’s annoying stall tactics, not all of the undervotes were separated from the county’s ballots. They
finished up 614 precincts, but there were still about 50 precincts they had left. Leahy tells the judges that there’s still
some work to be done, that there are still precincts that needed undervotes to be segregated. He tells them about the process
by which it can work, that it will take half a day at most—which can be done concurrently with their counting of the undervotes
that were segregated.

But the judges completely ignore him.

The Gorebies are running a spreadsheet.

Madison County finishes by 12:15; net gain of 2 Gore votes.

Escambia County finishes around 1:30; net gain of 3 Gore votes. Sixteen minutes later comes news from Osceola—net gain of
4 Gore votes.

Fourteen minutes after that, at 2
P.M.
, Liberty County. Two for Gore, 1 for Bush.

At 2:18, they hear that Manatee County found 26 votes in their 111 Opti-scan undervotes, resulting in a net gain of 2 Gore
votes.

It’s nerve-racking. But they’re getting there.

2:45. Highlands County. Punch cards. Three for Gore, 1 for Bush.

Beck was up all night, working with Sean Gallagher on various objections he had to file in Lewis’s courtroom by 8
A.M.
“The Florida Supreme Court put this court in a frankly impossible situation,” the brief states. “The court’s order also robs
George W. Bush and Dick Cheney of even the rudiments of due process.”

After Beck and Terrell—who wrote a brief on the spoliation of the Miami-Dade ballots—filed their papers at 7:55, the two hit
the talk-show circuit, designated to talk about how the recounts are unfair. After entering Bushworld to much suspicion, Beck
is now a full-fledged GOP superstar. The fact that he voted for McCain in the primaries—even after McCain had dropped out—is
not often mentioned.

“We’re going to have one county where judges look at the ballots,” Beck tells CNN. “We’re going to have other counties where
other employees of other branches of the government are drafted into service. So, we’ve got inconsistent treatment right off
the bat. Number two, no matter how well-meaning the judges may be, they’re not given any guidance. They’re not given any standards
to evaluate the ballots.”

Not all is lost, however. The GOP pols in the field report back to Mehlman and Enwright, and Beck hears that the percentage
of undervotes being considered votes is very low, maybe 5 percent.

“They’re applying real standards,” Beck thinks.

There are other reports that Beck hears—counties practicing what he considers acts of civil disobedience. The Bay County canvassing
board, he hears, faxes Lewis a letter stating that they might refuse to comply with his order, insisting that they did it
right the first time. More than thirty of the sixty-four counties don’t send Lewis the letter he requested, explaining their
plans.