Bush's Contested Lead
Now it goes to the courts as GORE challenges Sunday night's Florida certification
Nancy Gibbs 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
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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