The Nine (25 page)

John and Sandra O’Connor were both seventy years old and in their forty-eighth year of marriage in 2000; it was hard to imagine a happier union. Through the years, John’s energy had matched Sandra’s, but his was coupled with a madcap sense of humor that never failed to delight his more straitlaced wife. As Justice O’Connor’s biographer Joan Biskupic learned when John was running for president of the Rotary Club in Phoenix, he listed his qualifications as: “Beautiful wife. Rich father-in-law. Pool hustler.” Shortly after Sandra was appointed to the Court, John gave Harry Blackmun a business card that said his skills included “Tigers Tamed, Bars Emptied, Orgies Organized.” John became a prominent lawyer in Phoenix but didn’t hesitate to give up his career to move to Washington after her appointment. Through the years, he spent time with a couple of different law firms in D.C. but never established himself the way he had in Arizona; the possibilities for conflict with his wife’s work were simply too great. But if John worried about living in Sandra’s shadow, he never let on.

In the period leading up to the 2000 election, John’s health deteriorated. He fainted on a visit to Phoenix, and his heart stopped briefly. He had surgery to install a pacemaker. In the past, John had always been extraordinarily discreet about anything to do with the Court. But on election night, John gave an extended explanation of Sandra’s distress. They wanted to retire to Phoenix, but Sandra wouldn’t hand her seat to a Democratic president. A Gore victory meant at least four more years for them in Washington, and they wanted to leave. That’s why, John said, Sandra was so upset. It was unlike him to talk about their plans in a quasi-public setting. In the end, of course, her mistake in uttering some unduly candid words was trivial; her blunders in the days ahead were not.

The vote count in Florida was fantastically, almost surrealistically, close. (In time, during their coverage on election night, the networks rescinded their projection of the state for Gore, then awarded it to Bush, and finally labeled the state too close to call.) On Wednesday, November 8, the first complete election figures in Florida showed Bush ahead of Gore by 2,909,135 to 2,907,351, or a margin of 1,784 votes. Under Florida law, a result this close required all the counties in the state to do an immediate automatic recount. That process, which essentially meant running all the ballots through the counting machines a second time, took a day. The new results, announced on Thursday, November 9, cut Bush’s margin to 327 votes—or .00000056 percent.

Events in the first few days after the election had a hallucinogenic quality. Partisans on both sides had no experience with a controversy like this one. While there were a great many people who were familiar with politics, almost none of them knew anything about how votes were actually cast and counted. And the subject of recounts was even more obscure, familiar only to a tiny band of part-time experts on both sides. (There have never been enough recounts to support even one person’s entire career.) No one, of course, had any idea how long the controversy would last, so each side worked with a frantic, sleepless intensity.

The immediate focus of controversy was Palm Beach County, Florida’s biggest by area and most Democratic by inclination. Because the local election administrator, Theresa LePore, wanted to make voting easier for the county’s many elderly voters, she used 12-point type—rather than the customary 10-point—to lay out the ballot. But with ten candidates, the bigger type meant that there was not enough room to list them all on one page; instead, she spread the names across two pages, with the holes to be punched in the middle, the famous “butterfly ballot.” The arrangement left Patrick Buchanan, the rabidly conservative independent candidate, in the second punch-hole position and Gore in the third place. (In Florida, like most other states, the parties are usually listed in order of finish in the most recent governor’s race.) As a result, Buchanan received 3,704 votes in Palm Beach—nearly 2,700 more than he’d won in any other county. As Buchanan himself acknowledged, most of the votes were intended not for him but rather for Gore. What, if anything, could be done about these errors after Election Day? It wasn’t clear. Still, protesters and news cameras descended on the government center in West Palm Beach.

Scrambling to keep their hopes alive, the members of the Gore team made their first move on November 9, two days after the election. Pursuant to Florida law, they asked four out of the state’s sixty-seven counties to conduct manual recounts—ballot-by-ballot reviews to make sure that the votes were correctly recorded. Not coincidentally, Gore asked for recounts in Broward, Miami-Dade, Palm Beach, and Volusia, the four most Democratic-leaning counties in the state. The butterfly ballot controversy applied only in Palm Beach, but the main issue in the other counties concerned the number of so-called undervotes—that is, ballots where the counting machines registered no preference in the presidential race. The Gore team thought a recount was necessary to identify whether any of these undervote ballots had actually been marked with a preference for president. In each county, a little-known entity called the Canvassing Board, made up of three local officials, would vote to determine whether a recount should take place. Gore had not filed a lawsuit, instead asking for manual recounts, which was known under Florida law as filing a protest.

But before any of the boards could even determine whether to conduct a manual recount, the Bush forces struck back in a way that hinted at how the contest would proceed over the following month. They were going to do whatever it took to win this election. Throughout the post–Election Day controversy, the passion to win, fueled in part by the desire to get control of a Supreme Court that had disappointed conservatives for so long, was all on the Republican side. James A. Baker III, the wily former cabinet member who was running the Bush effort, thought that a lawsuit was a terrific idea, and he asked former Missouri senator John Danforth, a part-time clergyman and nationally known figure of rectitude, to represent Bush in the case. Danforth declined, citing the old rule “Candidates don’t sue.” Undeterred, Baker chose a more zealous advocate, the Washington lawyer Theodore B. Olson, who was only too happy to lead the charge.

In keeping with the frantic pace, Olson filed the lawsuit on Saturday, November 11. Two days later, Olson stood before Judge Donald M. Middlebrooks in federal court in Miami and asked him to stop the recounts before they had even started. His rationale was pretty thin—that Gore’s “selective” recounts in only four counties violated the Equal Protection Clause of the Fourteenth Amendment, because they emphasized the votes of some counties over others. (Bush, of course, could have cured this problem by asking for his own recounts anywhere he wanted.) The judge had been working as hard as the lawyers: he was ready with an opinion by the time oral argument was completed on Monday.

Middlebrooks rejected Bush’s position and allowed the recounts to proceed. “Under the Constitution of the United States, the responsibility for selection of electors for the office of President rests primarily with the people of Florida, its election officials and, if necessary, its courts,” he wrote. “The procedures employed by Florida appear to be neutral…. I believe that intervention by a federal district court, particularly on a preliminary basis, is inappropriate.” Far from deterred, Baker and the rest of the Bush team had plenty of fight left. The onslaught of litigation prompted by the election had just begun.

The justices and their staffs watched the developments in Florida with the same bewildered fascination as the rest of the country did. But there was one person at the Court who was already thinking several steps ahead in the process. That was Anthony Kennedy.

In part, Kennedy was just doing his job. The justices divide up responsibility for procedural matters by circuit courts of appeals, and Kennedy was assigned the Eleventh Circuit, which included Florida. So he had some reason to monitor the developments there. On the day after Judge Middlebrooks’s decision, Kennedy circulated a copy to all the other chambers. Just keeping you apprised, the cover memo said. Just filling you in.

In a minor but noticeable way, Kennedy had contravened the rarefied mores of the Court. All of the justices read the newspaper; all of them knew what was happening in Florida; none of them needed Tony Kennedy to give them the latest news. It was amusing, more than offensive, that Kennedy was sniffing around the unfolding controversy. The memo showed just a hint of overeagerness to get in on the action. No one else on the Court would have sent that memo. More than any of the other justices, Kennedy loved drama and what he called “the poetry of the law.” Kennedy’s vanity was generally harmless, almost charming—sort of like the carpet in his office.

Understatement was the rule for the decor in most justices’ chambers. Everyone had a few personal touches—O’Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit his “called shot” home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge’s chambers. Worse (or better, depending on one’s perspective), the carpet was festooned with gold stars—garish touches that made the office a sort of comic tourist attraction for law clerks and other insiders. All of the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection. What was more, he wedged his desk into the far corner of his office, away from the door, so that visitors had to traverse the expanse of his room to shake his hand. It was an office that tried hard, maybe too hard, to impress. (Kennedy even labored on his magnificent view of the east front of the Capitol. When Congress announced plans to build a massive visitors’ center between the Court and the Capitol, Kennedy took the lead in lobbying the legislators to make sure it was built entirely belowground, so as not to disrupt the vista. The negotiations turned out to be surprisingly complex, and lasted for years, but Kennedy won this battle, and the view from the Court was largely preserved.)

The first Kennedy memo to his colleagues about the legal machinations in Florida was followed by a second, then another. He was almost providing a legal play-by-play. His hunger for the case was palpable.

Once the Bush lawyers failed in their effort to have the federal court shut down all the recounts at once, they tried to do it one county at a time. By now, both sides had become familiar with the iron law of recounts: the trailing candidate tries to open up the process and recount as many votes as possible in as many places as possible; the leading candidate does just the opposite, fighting to limit the number and locations of any recounts. This wasn’t high principle, just political warfare by other means.

The Gore forces had one principal advantage—Florida law—and one major disadvantage—Katherine Harris—in their fight for recounts. State law had a strong presumption in favor of allowing recounts to reach accurate results. As for Harris, she occupied the previously obscure position of secretary of state. An heiress to a real estate fortune, she had an imperious manner and big ambitions. She had vaulted quickly from the state senate to statewide office and had plans to move up the Republican hierarchy. Earlier in the year, she had traveled to New Hampshire to campaign for George W. Bush and later served as cochair of his campaign in Florida. Like many secretaries of state around the country, Harris was both a partisan elected official and the ostensibly neutral arbiter of elections in the state.

Immediately after Election Day, the Bush team placed one of its most trusted legal advisers in Florida, Mac Stipanovich, as its representative in Harris’s office. She made no decisions in this period without consulting him. The most important issue for her to decide concerned the recounts. Could the recounts continue longer than seven days after the election, that is, past Tuesday, November 14? The law said both that Harris should certify by the seventh day and that she could also allow recounts to proceed longer. Of course, she did not. If the counties weren’t done by then (and three of the four were not finished by then), too bad for them—and Al Gore. But then on Friday, November 17, the Florida Supreme Court, on its own initiative, stepped into the fray to overrule Harris and say that the counties could continue counting votes. The justices of that court scheduled a full argument in the case for Monday, November 20, but in the meantime they ordered the recounts to proceed.

By Monday, Bush’s margin in Florida had grown from 300 to 930 votes. (Volusia County had completed its recount, with a net gain of 27 votes for Gore, and the counting of overseas absentee ballots had netted 630 votes for Bush.) The issue before the Florida Supreme Court was whether the recounts in Palm Beach, Broward, and Miami-Dade would be allowed to proceed. If the Florida Supreme Court stopped those recounts, there was no way that Gore could win.

By 2000, the state supreme court represented a singular part of Florida government. Florida had a Republican governor, Jeb Bush, and Republican majorities in both houses of the state legislature. The only remaining Democratic power center in the state was the supreme court, where all seven members had been appointed by Democratic governors. (One justice was a joint appointment by Bush and his Democratic predecessor, Lawton Chiles.) The court wasn’t shy about favoring a progressive—and Democratic—agenda either, as the Bush campaign soon discovered. On Tuesday, November 21, the Florida Supreme Court ruled that the recounts should proceed for the next five days and that Harris could not certify the results until Sunday, November 26. Clearly, the Florida justices felt a great deal of pique toward Harris, whose conduct they described as “unreasonable,” “unnecessary,” “arbitrary,” “contrary to law,” and “contrary to the plain meaning of the statute.” But the unanimous opinion was not very well reasoned. There was no explanation for why the justices chose to extend the deadline five days—as opposed to four, or six, or any other number. In denouncing Harris for looking too political, the Florida court wound up looking political itself. Still, the Gore forces were suddenly back in business.