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Bush's Contested Lead

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Now it goes to the courts as GORE challenges Sunday night's Florida certification

Twas election night all over again. The halls were decked, the pundits were quacking, Democrats said Florida was still too close to call. By the Sunday 5 p.m. deadline, the counting still wasn't done, but in a dramatic signing ceremony at 7:30, secretary of state Katherine Harris certified George W. Bush the winner by 537 votes. But even as Bush asked Dick Cheney to head a transition team and named Andrew Card his chief of staff, the Democratic faithful were primed to fight on--especially after Harris decided to leave out the results of the hand count Palm Beach canvassers stayed up all night to produce. "How can we teach our children that every vote counts if we are not willing to make a good-faith effort to count every vote?" asked Al Gore's running mate Joe Lieberman. "Vice President Gore and I have no choice but to contest these actions." But the Bush team was determined to seize the moment. "At some point there must be closure," said Bush adviser James Baker. "At some point the lawyers must go home. We have reached that point."

The Sunday deadline had lost some of its magic power to conjure a President, because by that time both sides had loosed upon the world armies that were hard to call back. It was eye for an eye, lawsuit for lawsuit; the candidates were fighting on every front because at different times during the week each found his back against the wall. Optimists in both camps still talked about how they would reach out to the other side when it was all over, like the World War I infantrymen who played soccer on Christmas Day before going back to their trenches to try to kill each other again. But neither side had any idea how to reach an armistice.

As for the rest of us, Americans had been patient, understanding that a close race may take time to sort out. But by last week the conduct had become so reckless that patience required some courage and faith; reasoned arguments about fairness were drowned out by angry mobs charging that Gore was "the Commander in Thief," a "chad molester," even as Democrats charged that Bush would burn down the White House before he'd let Gore live in it. The uniform code of conduct in a democracy--the assumption of good faith that allows politicians to quarrel one day and compromise the next--was sacrificed to the reality that only one of these men can be President, that there is no middle ground. Each man was so sure he was right that he had a duty to try to win at all costs. And so the costs kept rising.

The Bush team in all its public comments did not even leave open the possibility that machines might have missed legitimate votes, only that Gore was determined to keep counting until he got a result he liked. Gore's Democrats were, for the first time in a long campaign, united behind their leader last week, if only out of shared disgust at his enemies. Democrats kept finding new fuel for their indignation: when Trent Lott denounced the Florida Supreme Court's "unelected judges" for usurping the rights of the people by letting the recounts continue; when Florida Republicans threatened to name their own set of electors to send to the Electoral College and count on House Republican strongman Tom DeLay to make sure they get seated; when an angry mob showed up to pound on the doors of the offices where Miami-Dade canvassers were meeting; when a brick flew through a Democratic Party office window in Broward County with a note warning, "We will not tolerate any illegal government." Prospects that were unimaginable one day become probable the next: it will go to the House, no, to the Senate; Gore will cast the tie-break vote; Could Strom Thurmond end up President? Dick Cheney's fourth heart attack fit the script for a week of jumpy tempers and raw nerves.

So it came as some strange comfort on Friday when the U.S. Supreme Court surprised just about every legal scholar on the planet and said it would hear the Bush petition that these ongoing recounts were unconstitutional. The search for wise elders with a good sense of direction had so far been in vain; judges farther down the food chain had had their fairness challenged, even as they ruled for the Democrats one day, the Republicans the next. Maybe the nation's highest court would be able to guide us home. "The Supreme Court is the only decent way out," said a Democrat who has worked for three Presidents in as many decades. "That would at least give the next President some legitimacy."

As Bush saw it, the only reason he was not happily vetting Cabinet members was because the Democrats wanted to change the rules for deciding elections, and the Florida Supreme Court decided to let them. When the justices ruled Tuesday night that the hand counts could proceed, provided they were finished by 5 p.m. Sunday, the Bush camp for the first time felt some genuine dread. "I guess the rules aren't the rules anymore," said an ally bitterly. Didn't it mean anything that the votes had been counted and counted again; the state legislature had set a one-week deadline for the counties to certify their results; and the secretary of state had affirmed it? Now the state supreme court was throwing that deadline out and making a new one all its own. That wasn't interpreting the law, it was inventing it. "Make no mistake," Bush said the next morning. "The court rewrote the laws. It changed the rules, and it did so after the election was over." The only way to respond, Bush's aides agreed, was to launch an all-out war on the Florida Supreme Court. "We had to send a clear message that we saw the ruling as completely illegitimate," insisted a senior aide. "We couldn't mince words." Concerns about attacking the legitimacy of an institution of government were brushed aside. "The court couldn't have done any worse by us," he said. Were they really supposed to stand by and leave it up to Democratic officials to decide what voters intended?

The television audience got to watch it all live: the cross-eyed canvassers holding ballots up to the light under the big round magnifying glass, searching for signs of intent. Callers to conservative talk-radio shows made an issue of the fact that it was an openly gay judge, Broward County canvasser Judge Robert W. Lee, who was accepting ballots that were merely indented, not fully punched through. "They're casting votes, not counting votes," Bob Dole told reporters Friday, part of the Republican SWAT team of celebrity poll watchers. When Lee's team finally finished around midnight Saturday, he dispatched a lawyer to Tallahassee to physically hand the results over to Katherine Harris, since he had heard that her fax lines might be conveniently tied up all afternoon.

Through it all, Bush himself was strangely absent, even when he was in full view. He came before the cameras Wednesday morning to say how great Dick Cheney sounded on the phone, that his hospitalization was just a precaution; he hadn't had a heart attack, even though his own aides knew Cheney had actually had a stent placed in his artery and neglected to mention it. Asked about his next legal move, Bush referred to his legal eagles--"Jim Baker is in charge of the team in Florida, and he's doing a really good job down there"--as though he had no idea he was about to take the case to the U.S. Supreme Court.

Gore, for his part, grew only more determined to fight as the week wore on. He believes, according to people who talked to him late last week, that if all the votes had been fairly counted, he would have won Florida by more than 30,000 votes. In his view, the fact that he won the national popular vote gives him license to prove he would have won Florida as well, were it not for badly designed ballots and faulty voting machines. The state court was reconciling conflicting statutes when it extended the deadline for completing the hand counts that Florida law permits; it was not usurping the legislature's role.

Gore is also convinced that his team may have found the reason so many Palm Beach ballots were clearly punched through in all the boxes except the presidential one. The canvassers were judging that oversight to be a sign of voter indecision and rejecting those ballots; but why would Palm Beach have five times as many such ambiguous ballots as counties that used different measures? Because worn equipment made it harder to punch that particular hole cleanly through, Gore supporters argued, which provided more grounds to challenge the outcome. Democrats have collected 10,000 affidavits from voters who said they were confused by the ballot's design, had trouble punching the hole they wanted or were refused assistance or given wrong instructions by poll workers. Said a senior Gore legal adviser: "Even the man who invented the machine says these votes need to be looked at."

No sooner had Gore won the right to a recount than the Republican counteroffensive began--even though many states, including Texas, consider hand counts to be reliable. The judges who endorsed the recounts were denounced as biased; the exhausted counters were accused of attempting an in-broad-daylight theft of the presidency--even though Palm Beach County turned up far fewer extra Gore votes than anyone expected because of their stricter rules about counting dimpled ballots. Democrats were also stunned by Nassau County, a G.O.P. stronghold, which decided on Friday to use its initial election-night vote count rather than the mandatory machine recount performed several days later. That recount had yielded 52 more votes for Gore and had already been certified by the county. "If I can't win that argument," said Gore attorney David Boies, "I'm going to give up the practice of law."

But nothing made Gore and his allies dig in as much as the roving "rent-a-rioters," some of them Bush campaign operatives, who were controlled by radio from a mobile home. "If that occurred in another country," said Massachusetts Senator John Kerry, "people would be taking the floor of the Senate and bemoaning thuggism." Klain called it a "crystallizing moment: the idea that the Republicans, having been rejected by the courts in their efforts to shut down the hand counts, would resort to these sorts of tactics to stop the counting of ballots. It made it really clear to our supporters around the country what we're fighting for here."

Republicans said they were just borrowing tactics that Jesse Jackson and the Democrats perfected years ago and had imported to Florida immediately after the vote, but Jesse's operation was never like this. Organizers with headsets and microphones moved the protesters about, here for a CNN live shot, there to confront a Democratic Congressman, louder here, softer over there, conducting the crowd like a roving symphony orchestra. "The election may have ended, but the campaign hasn't," said New York lawyer Brad Blakeman, a top Bush campaign advanceman now moonlighting as a freedom fighter. "It would be disingenuous to say this isn't part of the campaign. When Bill Clinton came to office, he instituted the never-ending campaign, and this is the next logical step in that progression."

After some mixed messages, Miami-Dade officials ultimately insisted that the rioters had not scared them into calling off their recount the day after the supreme court had said to go ahead; there just wasn't enough time to count 654,000 votes by hand before Sunday, they said. But Democrats were convinced the protests provided them their opening to revisit Miami-Dade's decision. A recount of about one-sixth of the ballots had found 156 new votes for Gore, and if the county would just finish the job, Gore believed, it could provide him the margin he needed. Gore planned to contest the county's decision and told people he would accept a bipartisan "master" to oversee a recount; but that would involve days and days of counting and a new deadline for a final tally. "The tragedy is we have truth on our side," said a top Gore adviser, "but time isn't."

And what about the military ballots, rejected by the hundreds for technical reasons? That had been a p.r. disaster for Gore, but Democrats denied any sneaky campaign to disenfranchise soldiers. Many of the counties throwing out large numbers of absentee votes were controlled by Republicans. Republicans withdrew one lawsuit on Saturday after many of the counties voluntarily decided to reconsider the military ballots, but G.O.P. lawyers turned up the heat later in the day by filing individual suits in at least five counties that continued to resist.

Democrats countered with attacks on Seminole County, where the registrar allowed fellow Republicans to sit in her office for 10 days, correcting requests for absentee ballots that were missing their voter ID numbers. "We're going to argue that all of the absentee ballots cast in Seminole County have been tainted," attorney Gerald Richman said Saturday. "Our position is, the ballots have to be thrown out."

And so the legal battle looked to move ahead on multiple tracks: the Gore camp's contest of the results in the state courts, and the Bush camp's appeal to the U.S. Supreme Court. The high court does not traditionally like to muck around in state matters, much less presidential elections. But at least the necessary four Justices decided there were grounds to weigh in on fairly narrow legal questions: Did the Florida Supreme Court usurp the power of the state legislature by allowing hand counts to continue past the legal deadline? Did it violate a federal law that requires that electors be selected according to rules set before the voting takes place? And most interesting, the Justices asked the Gore and Bush teams, What would be the effect on this whole showdown if they were to overturn the Florida court's ruling?

The U.S. Supreme Court decision to take the case looked like a huge Bush win: no matter what the final hand counts revealed, there was now a chance they'd be tossed out. But some Democrats saw it as a lifeline: it was a chance to fight on at least another week and, if the Justices ruled their way, to gain the ultimate legitimization of the manual recounts. "I don't think Gore can walk away," said Louisiana Senator John Breaux, widely considered the most agnostic about new legal challenges to the election. "As long as something is pending in court, it would be difficult for Gore to fold his tent."

The prospect of the Supremes getting involved brought both relief and risk for all parties: for the Justices, they had watched Republicans attack the Florida court as partisan because six of the seven judges were appointed by Democrats; but seven of the nine Justices were appointed by Republican Presidents, including two by Bush's dad. Would their sacred honor be challenged as well? Gore had attacked Justices Antonin Scalia and Clarence Thomas during the campaign; would they hold a grudge? Bush had praised them but now faces the possibility that their federalist, hands-off-the-states philosophy makes them less likely to rule in his favor.

Gore, Joe Lieberman and campaign chairman William Daley spent Friday working the phones, calling moderate Democratic House members and Senators, shoring up support. But even Gore's legal team was aware of the dangers. Imagine the perception, an adviser noted: "Al Gore lost the election but won it back in a lawsuit." He added, "I don't think his support will collapse immediately, but there's got to be some real concern about a guy who lost the initial returns, the automatic recount, the first certification and the second certification."

Congressional Democrats all had their own calculations to make, and the math was not friendly to Gore. While G.O.P. lawmakers were united behind Bush, knowing that their own fortunes depended on having a Republican President to help get anything done, many Democrats privately thought they would be better off if Gore lost. Even some liberal Democrats thought Bush might in some ways be easier to work with in the White House, since he would have a powerful incentive to reach out to them and make peace. Although some congressional Democratic strategists are ambivalent about Gore's legal crusade, for fear of a backlash in the 2002 elections, party activists are so strongly behind Gore that it's not in the interest of congressional leaders to be anything but fully supportive in public. "We'll be with him all the way to the end," a Democratic strategist says. "Our base is all jacked up about this."

--Reported by Timothy Roche and Cathy Booth Thomas/Tallahassee, Brad Liston/Fort Lauderdale, Kate Kelly/Palm Beach, John F. Dickerson, Tamala M. Edwards, Viveca Novak, Karen Tumulty, Michael Weisskopf/Washington and James Carney/Austin


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Cover Date: December 4, 2000

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