The Path to Florida

8/13/2019 The Path to Florida

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VANITY FAIROctober 2004

THE PATH TO FLORIDA

As the Florida recount ate away at George W. Bushs margin of victory (1,784 votes. . . 327 . . . 154 . . . ), the machinery of political power sprang to life. In Washington, stunned U.S. Supreme Court clerks watched justice become partisan,while in Florida, tens of thousands of citizensthousands of them African-Americanfound themselves disenfranchised by misleading, faulty, and uncounted ballots, or inexplicably purged from the rolls.

DAVID MARGOLICK, EVGENIA PERETZ, and MICHAEL SHNAYERSON, Zeroing in on the frenzied 36 days that followed the 2000 election, investigate the Brooks Brothers riot,Jeb Bushs high-tech felon hunt, and the new voting machines that leave no papertrail, and ask, Could it happen again?

Shortly after the presidential vote in November 2000, two law clerks at the United States Supreme Court were joking about the photo finish in Florida. Wouldnt it be funny, one mused, if the matter landed before them? And how, if it did, the

Court would split five to four, as it so often did in big cases, with the conservative majority installing George W. Bush in the White House? The two just laughed. It all seemed too preposterous.

Sure, friends and relatives predicted that the case would eventually land in their laps, but that was ignorant, nave talktypical of people without sophisticated legal backgrounds. A majority of the justices were conservatives, but they werentpartisan; mindful of the Courts fragile authority, the justices had always steered clear of messy political spats. Moreover, the very jurists whod normally side with Bush were the ones most solicitous of statesrights, most deferential to state courts, most devoted to the Constitutions original intentand the Founding Fatherhad specifically provided that the Congress, not the judiciary, would resolve close elections. To top it off, the Court rarely took cases before they were ripe

, and the political process in Florida was still unfolding. It was just inconceivable to us that the Court would want to lose its credibility in such a patentlypolitical way,one of the clerks recalls. That would be the end of the Court.

The commentators agreed. The New York Times predicted that the Court would neverenter the Florida thicket. A law professor at the University of Miami pegged Bushs chances before the tribunal at between slim and none, and a lot closer to none.As Thanksgiving 2000 approached, the justices and their clerks planned their vacations and scattered, leaving a skeletal staffgenerally only one of the three orfour clerks assigned to each chamberbehind in case the impossible happened. There was just no way, Justice Stephen Breyer remarked over the holiday, that the Court would ever get involved.

It all turned out very differently, of course, and the Court, by the very marginthat the incredulous clerk envisaged, put George W. Bush in the White House. Now out in the working world, the two clerks, along with most of their colleagueswho worked for the four liberal justices and the occasional conservative justice, remain angered, haunted, shaken, and disillusioned by what they saw. After all, they were idealists. Theyd learned in their elite law schools that the law wasjust and that judges resolved legal disputes by nonpartisan analysis of neutralprinciples. But Bush v. Gore, as seen from the inside, convinced them theyd beensold a bill of goods. Theyd left their clerkships disheartened and disgusted.


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The 2000 election in Florida shook Americans from all walks of life and of all political persuasions. Many were left wondering about the viability of Americas democratic system. Much has changed since the elections frenzied aftermath, in which hordes of reporters jammed the streets of Tallahassee, Palm Beach, and Miami,chasing ballots and lawyers for 36 days before the presidency was called by a margin of 537 votes out of the six million cast in Florida. But Florida is a statewith a history of disenfranchising blacksa legacy that seemed all too current in2000. And the presidents brother is still governor.

Could it happen again? Butterfly ballotsare gone, so there will be no more accidental votes for fringe candidates such as Pat Buchanan. Chadsdimpled, hanging, pregnantare history, for the punch-card machines that used them have been decertified. In their place are sleek, new electronic voting machines, known as D.R.E.s (direct-recording electronic voting machines). An estimated half of the states voters will be using them this Novemberincluding those in the three largest Democraticcounties.

The D.R.E.s look and work reassuringly like A.T.M.s. Yet unlike A.T.M.s, touch-screens provide no paper receiptno proof at all that a vote has been cast as the voter intended. Touch-screens have been plagued around the country by serious questions about their security and their accuracy in registering votes. In Florida, however, the story is more disturbing than in most states. The company that sewedup most of the key counties with raw political clout has installed machines thathave confounded poll workers and voters alike and led to problems that the stat

e, in its embarrassment, has tried to minimize again and again.

The state has been equally disingenuous in its attempt to bar ex-felons from voting. For the 2000 election, a notorious ex-felon list, composed of more than 50,000 names, was compiled and the appropriate sections were sent by the state to the elections supervisors of Floridas 67 counties, along with a directive to purgethose confirmed as felons from the rolls. It turned out, though, that the listhad been swollen with an estimated 20,000 names of possible innocents, wrongly included. Roughly 54 percent of those on the list were black, while blacks make up just under 15 percent of the statewide population. In Florida, some 90 percentof blacks vote Democratic. Surely, the embarrassment would prevent the state from attempting another high-tech felon hunt in 2004. But no. In May, the local elections supervisors learned that there was a new list. Only in July, when flaws

were again revealed by journalistsflaws that would once more favor Republicansdidthe state throw out the list. While there will no longer be an electronic list used to keep former felons from voting, the recent events have led to disturbingnew questions. What did the state know about the flaws? How was mass disenfranchisement almost caused again?

Florida 2000 was so bizarre, so surreal, and, for a large number of Americans, so patently illegitimate that they cant imagine the likes of it ever happening again. They may be wrong. Should the election come down to another statistical tieand to date the polls suggest the state is still a tossupan all too similar kind ofchaos seems likely to shroud Florida, with its 27 electoral votes, this November.

I.

At 2:16 A.M., November 8, 2000, six hours after the networks projected that Florida would go to Gore, based on shoddy reporting done by the Voter News Service (V.N.S.), a young hotshot at Fox News named John Ellis, who happened to be GeorgeW. Bushs cousin, called the stateand the electionfor Bush. Within four minutes, ABC, CBS, NBC, and CNN followed suit. It was just the three of us guys handing thephone back and forth,Ellis would later say to The New Yorker. Me with the numbers, one of them a governor, the other the president-elect. Now, that was cool.


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Gore phoned Bush to offer his congratulations, but as he made his way from campaign headquarters at his Nashville hotel to the War Memorial to give his concession speech, Nick Baldick, his chief operative in Florida, saw that something wasseriously amiss. V.N.S. had guessed that 180,000 votes were still outstanding. In fact, there were 360,000 votes that hadnt been countedfrom precincts in Palm Beach, Broward, and Miami-Dade Counties, which were largely Gore country. And whatwas this? Negative 16,000 votes for Gore in Volusia County? A computer glitch, it turned out. Baldick watched the Bush lead wither with each new report.

As the rain poured down on Gores motorcade, Baldick made a frantic call to Michael Whouley, Gores field strategist. Whouley passed the word on to Mike Feldman, Gores chief of staff. Feldman called campaign chairman Bill Daley. This thing was not over yet.

By the time Gore pulled up to the memorial, he was trailing statewide by fewer than 2,000 votes. But he didnt know that. Speechwriter Eli Attie, who had been with Daley, fought his way through the crowd to get to him. I stopped him from goingout onstage,recalls Attie, and said, With 99 percent of the vote counted, youre oly 600 votes behind.

Gore called Bush again, and the conversation went something like this:

Circumstances have changed dramatically since I first called you,Gore told him. The state of Florida is too close to call.

Are you saying what I think youre saying?Bush asked. Let me make sure I understandYoure calling back to retract your concession?

You dont have to be snippy about it,said Gore.

Bush responded that the networks had already called the result and that the numbers were correcthis brother Jeb had told him. Your little brother,Gore replied, isnot the ultimate authority on this.

Americans, some of whom went to bed thinking Gore had won, others that Bush hadwon, all woke up to find out that no one had won, in spite of Gores half-millionvote edge in the U.S. popular vote. Since the margin of error in Florida was wit

hin 0.5 percent of the votes cast, a machine recount there would be conducted. While Gore retreated home to Washington, where he would try to remain above the fray, Ron Klain, a Democratic lawyer who had once been his chief of staff, descended with a planeload of volunteers on Florida by six the next morning.

Information came pouring in faster than anyone could digest itabout polling places that had been understaffed, about voters who had been sent on wild-goose chases to find their polling places, about blacks barred from voting, and about police roadblocks to keep people from the polls. So far, these were rumors. The one obvious, indisputable problem was Palm Beach Countys butterfly ballot (designed bya Democratic supervisor of elections) [who changed her registration to Republican after the 2000 election, and was defeated in her last re-election bid] in which the names of candidates appeared on facing pages with a set of holes down the

center for voters to punch. Bushs name appeared first, on the left-hand page, with Gores name directly below. The second hole, however, was for Pat Buchanan, whose name was first on the right-hand page. Buchanan won 3,407 votes in Palm Beacharound 2,600 more than he received in any other county in Florida. The irony wasrich. Many of those voters were elderly Jews, thrilled to be voting for Joe Lieberman, the first Jew ever on a presidential ticket; instead, the confusing design had led them to cast their vote for a Holocaust trivializer. While Bush spokesman Ari Fleischer maintained, with trademark certitude in the face of all reason, that Palm Beach was a Buchanan stronghold,Buchanan himself admitted that many of the votes cast for him had been cast in error.


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Klain and Baldick soon learned of other irregularities. In Palm Beach, 10,000 ballots had been set aside because the voting machines had recorded undervotesthat is, no vote for president. According to former Gore lawyer Mitchell Berger, 4 percent of voters in Palm Beach voted for senator, but not presidentan odd twist, tosay the least. A similar situation occurred in Miami-Dade. As for Broward, thirdof the big three southern counties, in which Fort Lauderdale is located, it wasbeset by rumors of missing ballot boxes and unexpected totals from certain precincts. And what about that computer errorin Volusia that initially cost Gore 16,000 votes? Was there more to this story?

None of these irregularities would be addressed by the automatic recount, whichat best would merely check the totals of successfully cast votes. Manual recounts would be needed to judge the more questionable votes. Desperate for legal advice, Klain reached out to prominent firms in the capital of Tallahassee. He foundlittle help. All the establishment firms knew they couldnt cross Governor Bush and do business in Florida,recalls Klain. And so he improvised, pulling together ateam headed by former secretary of state Warren Christopher, now a Los Angelesbased lawyer in private practice. Christopher, Gore felt, would imbue the team with an image of decorous, law-abiding, above-the-fray respectability. Instead, Christopher set a different tone, one that would characterize the Democratseffortsover the next 35 days: hesitancy and trepidation.

By contrast, Christophers Republican counterpart, James Baker, another exsecretary

of state, dug in like a pit bull. Unlike Christopher and company, Baker spoke to the press loudly and often, and his message was Bush had won on November 7. Any further inspection would result only in mischief.Privately, however, he knew that at the start he was on shaky political ground. Were getting killed on count allthe votes,he told his team. Who the hell could be against that?

Baker saw his chance that Thursday, November 9, when the Gore team made a formalrequest for a manual recount in four counties: Volusia, Palm Beach, Broward, and Miami-Dade. Asking for a recount in these large, Democrat-dominated counties left the Gore team fatally vulnerable to the charge that they wanted not all votes counted, as Gore kept claiming in his stentorian tones, but only all Gore votes. Yet the Bush team knew full well that Gore could not have asked for a statewide recount, because there was no provision for it in Florida law. A losing candi

date had 72 hours to request a manual recount on a county-by-county basis or wait until the election was certified to pursue a statewide recount. The requests had to be based on perceived errors, not just the candidates wish to see recountsdone. Certainly, Gore chose counties that seemed likely to yield Gore votes. Buthe chose them because thats where the problems were. Proper as this was by Florida election law, the Democratsstrategy gave Baker the sound bite hed been seeking: Gore was just cherry-picking Democratic strongholds. It was a charge the Bushteam wielded to devastating effect in the media, stunning the Gore team, which thought its strategy would be viewed as modest and fair.

The automatic recount was finished on November 9, and for the Bush team the newswas sobering. Though many of Floridas 67 counties recountedmerely by looking at their previous tallies, Bushs lead had shrunk from 1,784 votes to 327. Gore votes,

it seemed, were everywhere. Who knew how many more a manual recount would uncover? From then on, the Republican strategy was simple: stop the counting. That Saturday, Baker filed suit in federal court to stop all manual recountsthe first legal shot across the bow, though Republicans would later accuse Gore of taking the election to court.

While all this was going on, Katherine Harris, Floridas elected secretary of state, managed to make herself into a lightning rod for both sidesfeelings about theelection. She had worked in her spare time as an ardent partisan for the Bush campaign and had served as a delegate to the Republican convention that summer. S


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he remained one of George W.s eight campaign co-chairs for Florida right up untilElection Day.

According to Jeffrey Toobin in his 2001 book, Too Close to Call[1], Harris, having gone to sleep thinking her candidate had won, was awakened at 3:30 A.M. the morning after Election Day by a phone call from George W.s campaign chairman, DonEvans, who put Jeb on the line. Who is Ed Kast,the governor asked icily, and why is he giving an interview on national television?

In her sleep-befuddled state, Harris had to ponder that a moment. Who was Ed Kast? Chances were shed barely met the assistant director of elections, whose division reported to her. Kast at that moment was nattering on about the fine points of Florida election law. Under that law, manual recounts were called for in veryclose races, and voter intent was the litmus test for whether disputed votes counted or not. Recounts and voter intent were almost certainly not subjects the governor wanted airedalready, his general counsel had made a call to get Kast yanked off the air, as brusquely as if with a cane.

In the white-hot media glare that first post-election day, Harris appeared overwhelmed and underinformed. She seemed to have no idea what the county supervisorshad been doing, much less that one had drawn up a butterfly ballot, another a caterpillar,both sure to cause chaos at the polls. Sensing trouble, the Bush campgave her a minder: Mac Stipanovich, a coolly efficient Republican lobbyist who worked in Tallahassee. Stipanovich had served as a campaign adviser for Jeb in his

first, unsuccessful run for governor, in 1994, and he had remained closely aligned with him ever since. Stipanovich appealed to Harriss grandiosity. (Her e-mailsreplying to Bush supporters later revealed that she had begun identifying withQueen Esther, who, in the Old Testament, saved the Jews from genocide. My sisterand I prayed for full armour this morning,she wrote. Queen Esther has been a wonderful role model.) He told her that nothing less than the course of history rested on her shoulders. You have to bring this election in for a landing,he repeatedagain and again.

Later, Stipanovich, in an interview with documentary-film maker Fred Silverman,would proudly describe his routine, which began two days after the election andcontinued throughout the aftermath. I would arrive in the morning through the garage and come up on the elevators,he said, and come in through the cabinet-office

door, which is downstairs, and then in the evening when I left, you know, sometimes itd be late, depending on what was going on, I would go the same way. I wouldgo down the elevators and out through the garage and be drivendriven to my car from the garage, just because there were a lot of people out front on the main floor, and, at least in this small pond, knowledge of my presence would have beenprovocative, because I have a political background.

On Friday, November 10, three of Gores four target countiesMiami-Dade, Broward, and Palm Beachwhich all used punch-card voting machines, started to weigh whether to conduct manual recounts of, at first, 1 percent of their ballots, and then, ifthe results were dramatic, the other 99 percent.

At issue were undervotes,meaning blank or incompletely filled-out ballots. While

totally blank ballots could hardly be counted, what about, in the case of the punch-card machines, ballots where the puncher, or stylus, hadnt quite gone through?

In those counties using optiscan machines, manual recounts also had to consider overvotes,where voters appeared to have cast more than one vote in a contest. (In2000, a majority of Floridas counties41 of 67had optiscans. A voter filled in ovals next to his candidates of choice on a paper ballot and then fed it into the optiscan, which looked rather like a street-corner mailbox. The ballot was then recorded electronically.) No one would dispute that some overvotes had to be put a


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sidewhen, for example, a voter had filled in the ovals next to Bushs name as wellas Gores. But some voters had filled in the Gore oval and then written Al Gorenextto it. Should those ballots be nixed? For that matter, a stray pencil mark on an otherwise properly filled-in ballot would cause the ballot to be rejected as an overvote by an optiscan voting machine. Shouldnt these all be examined, since the gold standard of Florida election law was voter intent? There were, in all, 175,000 overvotes and undervotes.

Harris and Stipanovich couldnt tell the four target counties how to do their l percent recountsat least, not directly. But they could, and did, send a young, strawberry-blonde lawyer named Kerey Carpenter to offer help to Palm Beach Countys three-person canvassing board. According to the boards chairman, Judge Charles Burton, Carpenter mentioned she was a lawyer, but not that she was working for Katherine Harris.

At one point, when the recount had produced 50 new Gore votes, Burton, after talking to Carpenter, declared the counting would have to start again with a more stringent standardthe punched-out paper chad had to be hanging by one or two of its four corners. By this stricter standard, Gores vote gain dropped to half a dozen. Carpenter also encouraged Burton to seek a formal opinion from Harris as to what grounds would justify going to a full manual recount. Burton happily complied.

That Monday, November 13, Harris supplied the opinion. No manual recount should

take place unless the voting machines in question were broken. Within hours, a judge overruled her, declaring the recounts could proceed as planned. Harris countered by saying she would stop the clock on recounts the next day, November 14,at 5 P.M.before Palm Beach and Miami-Dade had even decided whether to recount, and before Broward had finished the recount it had embarked upon. (Only Volusia, far smaller than the other three counties, was due to finish its recount by November 14, in time to be counted on Harriss schedule.)

Circuit-court judge Terry Lewis, then 48, a widely respected jurist who in his leisure time played pickup basketball and wrote legal thrillers, rendered a fairly gentle ruling on Harriss decision to certify those results. She could do this,he suggested, but only if she came up with a sensible reason. So Harris asked the remaining three Gore-targeted counties to explain why they wished to continue

their recounts. Palm Beach cited the discrepancies between the results of its limited manual recount and its machine recount. Broward told of its large voter turnout and accompanying logistical problems. Miami-Dade argued that the votes ithad recounted so far would provide a different total result. As soon as she received the responses, Harris rejected them all. On Friday, November 17, with the last of the absentee ballots ostensibly in, Harris announced that she would certify the election by the next morning. The Florida Supreme Court intervened this time, declaring she could not do that, and deciding, with a weekend to think about it, that the three target counties could take until Sunday, November 26, to finish countingor, if Harris so deigned, until Monday, November 27.

James Baker, the Bush teams consigliere, issued a public threat after the FloridaSupreme Courts maddening decision. If necessary, he implied, Floridas leading Rep

ublican legislator, incoming House Speaker Tom Feeney, would take matters into his own hands. What Feeney proposed, on Tuesday, November 21, was to vote in a slate of electors pledged to George W. Bushno matter what. Since both the state House and Senate were Republican-dominated, he could pass a bill to do that.

In Miami-Dade that week, a manual recount of undervotes began to produce a striking number of new votes for Gore. There, as in Palm Beach and Broward, fractiousDemocratic and Republican lawyers were challenging every vote the canvassing board decided. In Miami-Dade, Kendall Coffey, tall and gaunt, was the Democratseyes and ears. As the Gore votes accumulated, he recalls, panic buttons were being p


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ushed.

On Wednesday, November 22, the canvassing board made an ill-fated decision to move the counting up from the 18th floor of the Clark Center, where a large numberof partisan observers had been able to view it, to the more cloistered 19th floor. Angry shouts rang out, and so began the Brooks Brothers riot.

Several dozen people, ostensibly local citizens, began banging on the doors andwindows of the room where the tallying was taking place, shouting, Stop the count! Stop the fraud!They tried to force themselves into the room and accosted the county Democratic Party chairman, accusing him of stealing a ballot. A subsequentreport by The Washington Post would note that most of the rioters were Republican operatives, many of them congressional staffers.

Elections supervisor David Leahy would say that the decision to stop counting undervotes had nothing to do with the protest, only with the realization that thejob could not be completed by the Florida Supreme Courts deadline of November 26.Yet the board had seemed confident, earlier, that it could meet the deadline, and the decision to stop counting occurred within hours of the protest.

For all the tumult in Miami-Dade, both sides had realized that the presidency might well be determined not by hanging chads or overvotes but by absentee ballots. Republicans seethed with rumors of ballots by the bagful coming in from Israelall, presumably, from Jewish Democrats. Democrats envisioned thousands of ballots

coming in from military bases abroadall, presumably, from Bush fans in uniform.

Katherine Harris sowed confusion by issuing her own modification of the Floridalaw that specified absentee ballots could be accepted up to10 days after a general electionin this case November 17as long as they were sent from abroad and postmarked by Election Day. They are not required,Harris declared, to be postmarked onor priorto Election Day. Apparently, Stipanovich had decided there were more Bush votes than Gore votes to be harvested among the absentees, especially in the military.

Mark Herron, a Gore-team lawyer in Tallahassee, inadvertently made matters worsefor his own side. On November 15, he sent out a long memo on rules governing absentee ballots to the Democratic lawyers positioned at each of the 67 county can

vassing boards. A copy of the memo somehow found its way to a Republican law firm across the street from Herrons office. Next thing he knew, the Republicans werequoting his careful recitation of Florida election law to support their claim that Democrats wanted to disenfranchise brave Americans in uniform.

Panicked, the Gore team put Joe Lieberman on the Sunday television talk shows todeclare that the Democrats would never do that, and that he, for one, thought the most liberal standard should be applied to all incoming absentee ballots. Herron was appalled when he heard that: he knew that the western Panhandle countieswere thick with U.S. military bases. By letting any post-election absentee votes count, including those with lateor nopostmarks, the presidency might well be lost.

For Pat Hollarn, the elections supervisor of Okaloosa County, the next days brought a kind of bedlam she couldnt believe. A deep-green Panhandle county, Okaloosahas no fewer than six military bases, including Eglin and Hurlburt Air Force bases and an Army Ranger camp. And so the countys four-story government building, nestled within a highway strip of stores such as Mr. Cheap Butts, became ground zero for the lawyers on both sides assigned to the fight over absentee ballots.

Both parties were pushy, obnoxious, and sometimes almost hysterical. The Bush lawyers argued passionately that the rules should be eased and all absentee ballots included. I told them not only no but hell no,says Hollarn, a centrist Republic


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an, who prides herself on being a nonpartisan supervisor. (At the same time, inthe more Democratic counties, Bush lawyers were arguing just as passionately that rules should be strictly adhered to and any questionable ballots put aside.)

In Santa Rosa County, next to Okaloosa, elections supervisor Doug Wilkes did hisbest to restrain the vying partisans as they fought over some 20 late absenteeballots. He held the line on postmarks until a Florida Supreme Court ruling saidabsentee ballots should not be rejected for minor hypertechnicalreasons. Then hegave up. I said, Hey! If the Supreme Court tells me Im supposed to take this if it has a minor technical problem, and I cant read this smudge [of a postmark], andit may have been dated [before the election], then O.K., I feel now that I cansay were going to count Seaman Joness ballot.

In all, the Republicans gained a net increase of 123 votes from this last-minutepush.

II.

The day before Thanksgiving, the Bush campaign turned to the United States Supreme Court. Claiming that the situation in Florida had degenerated into a circus,itasked the high court to stop everything, and cited two highly technical federalissues for it to consider. The first, based on an obscure law from 1887, prohibited states from changing the rules after the date of that election. The second,a jurisdictional issue, was that by stepping into the case the Florida Supreme

Court had usurped the Florida legislatures exclusive powers to set the proceduresfor selecting electors, as provided for by Article II of the United States Constitution. The Bush lawyers claimed, too, that the selective recounts violated constitutional guarantees of due process and equal protectionmeaning the differentcriteria for recounting the ballots did not give equal rights to all voters.

Bushs petition for certiorarithat is, for the Court to take the casewent initiallyto Justice Anthony Kennedy, whose task it was to consider all emergency motionsfrom Florida, Georgia, and Alabama. For Kennedy, then 64, a man known to relishthe pomp and circumstance of the Supreme Court and his own, often crucial role in close cases, weighing such a momentous matter must have been glorious indeed.Batting aside a Thanksgiving Day plea from the Gore campaign to pass on the case, Kennedy urged his colleagues to take it on, suggesting that the Court was abso

lutely the essential arbiter of such weighty matters. He conceded, though, thatBush faced an uphill struggle on the law.

When Kennedys memo circulated, one flabbergasted clerk had to track down JusticeJohn Paul Stevens on the golf course in Florida and read it to him over the phone. Under the Courts rules, Kennedy needed only three votes beside his own for theCourt to hear the matter. Quickly, the four others who make up the Courts conservative block signed on: Chief Justice William Rehnquist, along with Justices Antonin Scalia, Clarence Thomas, and Sandra Day OConnor. In an unsigned order the day after Thanksgiving, the Court agreed to consider the two more technical arguments, spurning the equal-protection claim, and set down an extraordinarily expedited calendar. Normally, arguments are scheduled many months in advance. Now briefs were due the following Tuesday, with oral arguments set for December 1only a w

eek away. Clerks and justices scotched their vacations and stuck close to the Court; Scalias clerks ended up having Thanksgiving dinner together. The clerks forthe liberal justices watched the events unfold with dismay. To them, the only hopeful sign was Kennedys skepticism about Bushs chances. We changed our minds everyfive minutes about whether the fix was in,one clerk remembers.

As was customary, the Court did not detail how many justices had voted to hear the case, or who they were, and Gores lawyers didnt really want to know. At that point, they felt a certain faith in the institution and in the law: it was inconceivable to them that the Court would intercede, much less decide the presidency b


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y a vote of five to four. But the liberal clerks were more pessimistic. Why, they asked, would a majority of the Court agree to consider the Florida ruling unless they wanted it overturned and the recount shut down?[2]

Certainly, that was what the justices whod opposed taking the case believed. Convinced the majority would reverse the Florida court, they began drafting a dissent even before the case was argued in court. It was longabout 30 pagesand elaborate, written principally by Justice Stevens, then 80, the most senior of the would-be dissenters and, largely by default, the Courts most liberal member, even though a Republican, President Gerald R. Ford, had appointed him. With the assistanceof Justices Stephen Breyer, David Souter, and Ruth Bader Ginsburg, Stevens laidout why the Court should never have accepted the case.

Meanwhile, events in Florida took their own course. On Sunday, November 26, thePalm Beach canvassing board sent an urgent request to Katherine Harris, saying that in order to complete its manual recount it needed two additional hours beyond the five P.M. deadline she had chosen to enforce, rather than the Monday deadline the Florida Supreme Court had offered her as an option. Harris conferred with Stipanovich and answered no. As a result the countys entire recount effort wasdeemed null and void. That afternoon Harris certified the election, claiming that Bush had won by 537 votes, a total that appeared to include Bushs net gain in absentee ballots, but none of the recounted votes from Palm Beach or Miami-Dade.Gores lawyers promptly contested the certification.

At the Supreme Court, the liberal clerks handicapped the case pretty much as theGore camp did. At issue, as they often were in crucial cases, were Justices Kennedy and OConnor. But were both really in play? At a dinner on November 29, attended by clerks from several chambers, an OConnor clerk said that OConnor was determined to overturn the Florida decision and was merely looking for the grounds. OConnor was known to decide cases on gut feelings and facts rather than grand theories, then stick doggedly with whatever she decided. In this instance, one clerkrecalls, she thought the Florida court was trying to steal the election and thatthey had to stop it.Blithely ignorant of what view she actually held, the Gore campaign acted as if she were up for grabs. In fact, the case would come down toKennedy.

At this point, the clerks had been at the Court only two months, but, for many o

f them, Justice Kennedy, appointed by President Reagan after the Senate had spurned the arch-conservative Robert Bork, was already a figure of ridicule and scorn. It was not a matter of his generally conservative politicsdespite Clarence Thomass public image of smoldering rage, most of the liberal clerks had found him quite personable. But Kennedy, they felt, was pompous and grandiloquent. His inneroffice was filled with the trappings of poweran elaborate chandelier and a carpet with a giant red starand his writing, too, was loaded with grandstanding flourishes. The clerks saw his public personathe very public way in which he boasted ofoften agonizing over decisionsas a kind of shtick, a very conspicuous attempt toexude fairness and appear moderate, even when hed already made up his mind.

Conservatives, however, were not always happy with Kennedy, either. They had never forgiven him for his votes to uphold abortion and gay rights, and doubted bot

h his intelligence and his commitment to the cause. Convinced hed strayed on abortion under the pernicious influence of a liberal law clerka former student of thenotoriously liberal Laurence Tribe of Harvard Law School, who was representingGore in this casethey took steps to prevent any reoccurrences. Applicants for Kennedy clerkships were now screened by a panel of right-wing stalwarts. The premiseis that he cant think by himself, and that he can be manipulated by someone in his second year of law school,one liberal clerk explains. In 2000, as in most years, that system surrounded Kennedy with true believers, all belonging to the Federalist Society, the farm team of the legal right. He had four very conservative,Federalist Society white guys, and if you look at the portraits of law clerks o


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n his wall, thats true 9 times out of 10,another liberal law clerk recalls. They were by far the least diverse group of clerks.

For all their philosophical differences, the nine justices had learned to live together; they have, after all, served together since 1994. For their clerks, though, a chasm ran through the Court even before Bush v. Gore. The conservative clerks read different newspapers, went to different movies, ate different kinds offood. Their hair was shorter, their suits more solemn and sincere. Far more ofthem were white men, screened rigorously for political reliability. Apart from afew group activities the basketball games in the Courts top-floor gymnasium, theaerobics and yoga classes Justice OConnor had arrangedthe two groups rarely interacted. Rather than sit with the conservatives in the same lunchroom, the liberalsdined outside, in the area reserved for staff.

It was unusual, then, for a conservative clerk to visit the chambers of a justice on the other side. But that is what Kevin Martin, a clerk for Scalia, did on November 30 when he stopped by Stevenss chambers. Martin had gone to Columbia LawSchool with a Stevens clerk named Anne Voigts; he thought that connection couldhelp him to bridge the political divide and to explain that the conservative justices had legitimate constitutional concerns about the recount. But to two of Voigtss co-clerks, Eduardo Penalver and Andrew Siegel, Martin was on a reconnaissance mission, trying to learn which grounds for reversing the Florida court Stevens would consider the most palatable. They felt they were being manipulated, andthings quickly turned nasty. Fuck off!Martin finally told them before storming ou

t of the room. (OConnor clerks paid similar exploratory visits to various chambers, but those ended more amicably.)

n December 1, lawyers for the two sides argued their cases before the Court. Laurence Tribe, an experienced and highly respected Supreme Court advocate, seemedflat that day and off his game; the justices appeared to chafe under what they considered his condescending professorial style. Bushs lawyer, Theodore Olson, wholater became solicitor general in John Ashcrofts Justice Department, was more impressive, but then again, he was playing to a friendlier audience. Rehnquist andScalia hinted that they favored the claim that the Florida Supreme Court had encroached upon the Florida legislatures exclusive turf. Both OConnor and Kennedy also voiced irritation with the Florida court. It did not augur well for Gore.

Once the arguments were over, the justices met for their usual conference. At the poles were Stevens and Scaliathe one wanting to butt out of the case altogetherand let the political process unfold, the other wanting to overturn the FloridaSupreme Court and, effectively, to call the election for Bush. But neither hadthe votes. Eager to step back from a constitutional abyss, convinced the mattercould be resolved in Florida, the Court punted. Rehnquist began drafting a ruling simply asking the Florida Supreme Court to clarify its decision: whether it had based its ruling on the state constitution, which the Bush team had said was improper, or had acted under state statute, which was arguably permissible.

By December 4, all nine justices had signed on to the chief justices opinion. Theunanimity was, in fact, a charade; four of the justices had no beef at all withthe Florida Supreme Court, while at least four others were determined to overtu

rn it. But this way each side could claim victory: the liberal-to-moderate justices had spared the Court a divisive and embarrassing vote on the merits, one theyd probably have lost anyway. As for the conservatives, by eating up Gores clockGores lawyers had conceded that everything had to be resolved by December 12they hadall but killed his chances to prevail, and without looking needlessly partisan in the process. With the chastened Florida court unlikely to intervene again, theelection could now stagger to a close, with the Courts reputation intact, and with Bush all but certain to win.

On Friday, December 8, however, the Florida Supreme Court confounded everyone by


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jumping back into the fray. By a vote of four to three, it ordered a statewiderecount of all undervotes: the more than 61,000 ballots that the voting machines, for one reason or another, had missed. The court was silent on what standard would be usedhanging vs. pregnant chadsand so each county, by inference, would setits own. As they watched televised images of bug-eyed Florida officials inspecting punch-card ballots for hanging, dimpled, or pregnant chads, the Supreme Courtclerks knew the case was certain to head back their way.

Sure enough, the Bush campaign asked the Court to stay the decision and halt therecount. In a highly unusual move, Scalia urged his colleagues to grant the stay immediately, even before receiving Gores response. Gore had been narrowing Bushslead, and his campaign expected that by Monday he would pull ahead. But Scaliawas convinced that all the manual recounts were illegitimate. He told his colleagues such recounts would cast a needless and unjustified cloudover Bushs legitimacy. It was essential, he said, to shut down the process immediately. The clerks were amazed at how baldly Scalia was pushing what they considered his own partisan agenda.

Scalias wish was not granted. But at his urging, Rehnquist moved up the conference hed scheduled for the next day from 1 in the afternoon to 10 that morning. In the meantime, the conservative justices began sending around memos to their colleagues, each of them offering a different rationale for ruling in Bushs favor; tothe liberal clerks, it was apparent that the conservatives had already decided the case and were merely auditioning arguments.

This time, there would be no papering over the divisions. Arrayed against the five conservative justices wishing to stop the recount were their four colleagues,whod voted initially not to hear the case. Justice Stevens would write for them;so eager was the majority to stop the recount, one clerk recalls, that Stevenshad to plead for more time to complete his dissent. What he wrotethat counting every legally cast vote cannot constitute irreparable harmso provoked Scalia that, aseager as he was to halt the recount, he delayed things by dashing off an angryrejoinder, largely reiterating what hed told the justices the previous night. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,he argued, forecasting that a majority of the Court would ultimately rule in Bushs favoron the merits.

Even some of the justices voting with Scalia squirmed at how publicly hed acknowledged the divisions within the Court. To the liberal clerks, what he had writtenwas at least refreshing in its candor. The Court had worked hard to claim a moral high ground, but at that moment he pissed it away,one recalls. And there was acertain amount of glee. Hed made our case for us to the public about how crasslypartisan the whole thing was.Scalias opinion held up release of the order for anhour. Finally, shortly before three oclock, the Court granted the stay. No more votes would be counted. Oral arguments were set for the following Monday, December 11.

Gore and his team were crushed, but neither he nor his lawyers had given up. Even at this late date, Gore navely defended the good faith of the justices. Please b

e sure that no one trashes the Court,he instructed his minions. His lawyers still hoped that Kennedy or OConnor or both could be won over; perhaps they could bepeeled away from the conservative bloc as they had been several years earlier topreserve Roe v. Wade. At a meeting that Saturday, Gore decreed that David Boies, and not Tribe, would argue the case on Monday, partly for fear that the more publicly liberal Tribe might antagonize those two swing justices, partly becauseBoies, the famed New York litigator who was the governments chief lawyer during the Microsoft anti-trust case, had been representing Gore in Florida and was, therefore, better able to assure OConnor of the fundamental fairness of what was happening there.


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But to the liberal clerks it was all over. They placed their dwindling hopes noton anything that would happen in the Court on Monday, but on the press. The brother of a Ginsburg clerk, who covered legal affairs for The Wall Street Journal,had learned that the paper would soon report how, at a party on Election Night,OConnor was overheard expressing her dismay over Gores apparent victory. Once that information became public, the liberal clerks felt, OConnor would have to stepaside. When, on the night before the Court convened, she sent out a sealed memoto each of her colleagues, those clerks hoped this had actually come to pass. Infact, she was merely stating that she, too, felt the Florida Supreme Court hadimproperly usurped the state legislatures power. Gores lawyers, who also knew about OConnors election-night outburst, toyed briefly with asking her to step aside. But they demurred, hoping instead that she would now lean toward them to prove her fairness. Things were that bleak.

When Gores lawyers came to the Supreme Court for oral arguments on the morning ofDecember 11, they felt that the Bush teams jurisdictional argument, that the Florida Supreme Court had overstepped its bounds, was a loser because it emasculated one appellate court more than any other appellate court would ever want to condone. And, though they didnt know it, Justice Kennedy agreed with them. In a memocirculated shortly before he took the bench, he endorsed what OConnor had written the night before, but declared that it would not be enough: to carry the day,he argued, the conservative justices needed to assert that evaluating ballots under different standards in the various counties violated the equal-protection cl

ause.

Up to now, this argument had received scant attention from the clerks, the litigants, or even the justicesand understandably so. Even in the best of circumstances, voting procedures were riddled with inconsistencies, beginning with the use of systems of wildly varying reliability, such as punch cards and optiscan machines, in different jurisdictions. Voters, often poor or black, in counties with older machines were far less likely to have their votes counted than those in wealthier jurisdictions, and nobody ever heard a peep from the Supreme Court about unconstitutionality. Moreover, the Rehnquist Court had always stingily construedthe equal-protection clause of the 14th Amendment, enacted after the Civil War to protect freed slaves, applying it only when discrimination was systematic, blatant, intentional, incontrovertible. It was not surprising, then, that the Court

had originally declined to hear arguments on the point, or that, when they returned to the Court, Bushs lawyers had given those arguments only 5 pages in a 50-page brief.

But here was Kennedy dusting it off. And not as some academic exercise, but as the very basis of the Courts decision. We read the memo and thought, Oh, weve lost Kennedy,one liberal clerk recalls. In the star-studded audience awaiting the arguments that morning, someone spotted Al Gores daughter Karennapraying, he thought.It wouldnt help. The Court already had its majority. Now it had its rationale.

As the lawyers prepared to argue, the clerks pondered Kennedys motives. Perhaps,they speculated, he found an appeal to fairness, even when it was inapt or unpersuasive, more winning than a hypertechnical argument about jurisdiction; perhaps

it offered him a chance to sound moderate and wax eloquent. The oral argumentsbegan, with a question to Theodore Olson from . . . Justice Kennedy. Where is thefederal question here?he asked, sounding almost baffled, as if still genuinelywondering why the Court was hearing the case at all. In the corner of the courtroom where the liberal clerks sat, there were snickers, rolled eyeballs, nudges in the ribs. What a joke,one said to another. Kennedy went on to denigrate the argument about the Florida courts jurisdiction, then cued Olson to what really mattered. I thought your point was that the process is being conducted in violation ofthe equal-protection clause, and it is standardless,he told Olson. Olson, a keen student of the Court and canny reader of its moods, naturally agreed.


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OConnor railed against what she suggested was the stupidity of Floridas voters, who were too dumb or too clumsy to puncture their ballots properly. Well, why isnt the standard the one that voters are instructed to follow, for goodnesssake?she asked. I mean, it couldnt be clearer.Boies tried to explain that for more than 80 years Floridas courts had in fact focused on the intent of the voter rather than the condition of his ballot, but this was one instance for the Rehnquist Court inwhich deference to the states, and precedent, didnt matter.

Breyer and Souter saw Kennedys new focus on equal protection as an opportunity, suggesting during oral argument that if there were problems with the fairness ofthe recount the solution was simple: send the case back once more to the FloridaSupreme Court and ask it to set a uniform standard. Breyer, whose chambers werenext door to Kennedys, went to work on him personally. An affable and engaging man, Breyer has long been the moderatesmost effective emissary to the Courts rightwing. But the politicking went both ways; at one point, Kennedy stopped by Breyers chambers and said he hoped Breyer would join his opinion. We just kind of looked at him like he was crazyWe dont know what youre smoking, but leave us aloneandent away,a clerk recalls.

The encounters between the two men must have been extraordinary: with the presidency of the United States hanging in the balance, two ambitious juristseach surely fancying himself a future chief justiceworking on each other. And for a brief moment Breyer appeared to have succeeded. At the conference following the oral ar

gument, Kennedy joined the dissenters and, at least temporarily, turned them into the majority. The case would be sent back to the Florida court for fixing; therecount would continue. But the liberal clerks never believed that Kennedy hadreally switched, and predicted that, having created the desired image of agonizing, he would quickly switch back. He probably wanted to think of himself as having wavered,one clerk speculates. And, sure enough, within a half-hour or so, he did switch back.

Who or what sent him back isnt clear, but during that time, Kennedy conferred both with Scalia and with his own clerks. We assumed that his clerks were coordinating with Scalias clerks and trying to push him to stay with the majority,one liberal clerk says. I think his clerks were horrified, and the idea that he would evenblink for a moment here scared them,says another. They knew the presidency would

be decided in their chambers,a third clerkworking for one of the majority justicesrecalls. They would have fought tooth and nailthey would have put chains across the doorto keep him from changing his vote.Another clerk for another conservativejustice puts it a bit differently. Kennedy would not have voted the other way,this clerk says, but had he been tempted, the clerks could have dissuaded him.Breyerlamented that he had Kennedy convinced, only to have his clerks work him over and pull him back in the other direction.

Given the approaching deadline, Rehnquist decreed after oral arguments that anydecision to send the case back to Florida had to be handed down immediately; were the Court to reverse, time would cease to matter, and the decision could waita day. Stevens banged out a one-paragraph opinion, remanding the case to Florida, and sent it around. It seemed like a Hail Mary to me,recalls a clerk in one of

the conservative chambers. There were no takers. The Court was going to reverse,and throughout Monday evening and into Tuesday morning the two sides drafted and circulated their proposed opinions. Rehnquist was writing what he thought would be the majority opinion, reversing the Florida court on both the jurisdictional and equal-protection grounds. Stevens was drafting the principal dissent; it would reiterate what hed written in the unused dissent from the first round, but shorn of all legalese, in order to be easily understood by ordinary people. It chastised the Court for holding the justices of the Florida Supreme Court up to ridicule. Although we may never know with complete certainty the identity of the winner of this years Presidential election, the identity of the loser is perfectly


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clear,it stated. It is the Nations confidence in the judge as an impartial guardian of the rule of law.

The other dissenters would join Stevens, but had their own points to make. Because they, too, believed the case would hinge primarily on the autonomy of the Florida legislature, they dealt only secondarily, and peripherally, with the equal-protection argument. Stevens and Ginsburg denied that it applied at all. For better or worse, Ginsburg wrote, disparities were a part of all elections; if therewere any equal-protection concerns at all, she wrote, they surely applied moreto black voters, noting a New York Times report that a disproportionate number of blacks had encountered problems voting. Though racial questions already hung over the Florida vote, hers was to be the only reference to race in any of the opinions, and it was relegated to a footnote. But to the liberal clerks, these issues needed to be acknowledged, and a footnote was better than nothing at all.

Neither Breyer nor Souter had suggested initially that the recount had triggeredany equal-protection questions. But each of their draft opinions voiced such concerns; whether theyd come to believe that judging ballots under different criteria was really unconstitutional, or were still chasing after Kennedy, was never clear. Ultimately, Breyer conceded that the lack of a uniform standard implicate[d] principles of fundamental fairness,while Souter wrote something a bit strongerthat they raised a meritorious argument for relief.But for both the remedy was clear: send the case back to Florida. It was not to stop the recount altogether.

Late Tuesday morning, it became apparent that Kennedy and OConnor would not joinRehnquists opinion on jurisdiction, and would decide the case strictly on equal-protection grounds. Nowhere did OConnor explain why she had abandoned what she hadwritten on the jurisdictional matter in her memo the night before. To clerks onboth sides of the case, what appealed both to her and to Kennedy about invokingequal protection was that it looked fair. It was kind of a Keep it simple, stupidkind of thing,one liberal clerk theorizes. Or, as a conservative clerk puts it, they thought it looked better to invoke these grand principles rather than Article II, perhaps because it makes them look better in the press and makes them looklike heroes.Their opinion, written by Kennedy, was joined by the other three conservative justices. And it would go largely uncontradicted: with time running out and the dissents nearly complete, the losers had no chance to explain, in anycoherent way, why equal-protection concerns should not be allowed to stop the r

ecount.

As the drafts began circulating, tempers began to fray. In an unusual sealed memoan unsuccessful attempt to avoid the clerksprying eyesScalia complained about thetone of some of the dissents. He was, he confessed, the last person to criticize hard-hitting language, but never had he, as the dissenters were now doing, urged the majority to change its decision based on its impact on the Supreme Courtscredibility. He charged that his opponents in the case were inflicting the verywounds to the Court that they had supposedly decried. As Jeffrey Toobin first reported, he objected in particular to what he called the Al Sharpton footnotein Ginsburgs dissent: her comment on Floridas disenfranchised black voters. Whether outof timidity, collegiality, or affectionScalia was her closest friend on the CourtGinsburg promptly took it out. It was the most classic example of what kind of bu

lly Scalia is,says one clerk, who called Scalias complaint an attempt to stifle legitimate discourse worthy of Joe McCarthy.As for Ginsburg, this clerk says her response showed a lack of courage.

Kennedy, too, sent around a memo, accusing the dissenters of trashing the Court.Eager to suggest to the outside world that the Court was less divided than it appeared, he charged that the dissenters agreed with the equal-protection argumentmore than they were willing to admit. Shortly before his opinion went to the printers, he inserted a new line making substantially the same point. Eight Justicesof the Court agree that there are constitutional problems with the recount orde


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red by the Florida Supreme Court that demand a remedy,he wrote. Souter and Breyer had said so explicitly, he reasoned, while Stevens had done so implicitly by signing on to Breyers opinion.

Stevenss clerks, who stumbled over the new phrase, reacted apoplectically. Shouting over the telephone, they told Kennedys clerks that they had deliberately misrepresented Stevenss position and demanded that they change the language. When theKennedy clerks refused, Stevens promptly uncoupled himself from that portion ofBreyers opinion, and Kennedy no longer had a choice: eight Justicesbecame seven.er, as they handed in their respective decisions, Eduardo Penalver, the Stevensclerk, ran into a Kennedy clerk named Grant Dixton and told him that what the Kennedy chambers had done was disgusting and unprofessional.

In the Breyer chambers, too, there was unhappiness over Kennedys addendum. But itwas too late to take issue with it. Thus, Kennedys point stood uncontradicted and would be picked up in the next days press, including The New York Times, whichprinted a graphic illustrating how the justices had voted. On the equal-protection claim, it had seven voting for, and only two against. Breyer, a member of theGore team later lamented, had been nave; in his efforts to win over Kennedy, hed n taken to the cleaners.

Despite their loyalty to their justicesa striking, filial-like phenomenon among most clerksseveral concede that the dissenters in Bush v. Gore were simply outmaneuvered. Never did the four of them have the votes to prevail. But first by endor

sing a decision suggesting that the Florida Supreme Court had overstepped its bounds, then by appearing to buttress the majoritys equal-protection claims, the dissenters had aided and abetted the enemy. They gave just enough cover to the fivejustices and their defenders in the press and academia so that it was impossible to rile up the American people about these five conservative ideologues stealing the election,one clerk complains. The tone and multiplicity of the dissents didnt help. While Stevenss rhetoric was impassioned, even enraged, the other dissents were pallid.

The Courts opinions were issued at roughly 10 oclock that night. The only one thatmattered, the short majority opinion, was unsigned, but it bore Kennedys distinctive stamp. There was the usual ringing rhetoric, like the equal dignity owed toeach voter,even though, as a practical matter, the ruling meant that the ballots

of 60,000 of them would not even be examined. The varying standards of the recount, Kennedy wrote, did not satisfy even the rudimentary requirements of equal protection. Although six more days would pass before the electors met in their states, he insisted there was too little time for the Florida courts to fix things.

There were two more extraordinary passages: first, that the ruling applied to Bush and Bush alone, lest anyone think the Court was expanding the reach of the equal-protection clause; and, second, that the Court had taken the case only veryreluctantly and out of necessity. That infuriated us,one liberal clerk recalls. Itwas typical Kennedy bullshit, aggrandizing the power of the Court while ostensibly wringing his hands about it.

Rehnquist, along with Scalia and Thomas, joined in the decision, but Scalia, forone, was unimpressed. Whether or not one agrees with him, Scalia is a rigorousthinker; while the claim that the Florida Supreme Court overstepped its bounds had some superficial heft to it, the opinion on equal-protection was mediocre andflaccid. Like we used to say in Brooklyn,he is said to have told a colleague, itsa piece of shit.(Scalia denies disparaging the majority opinion; the other justices would not comment for this article.)

Sharing little but a common sense of exhaustion and Thai takeout, the clerks came together briefly to watch the news. As reporters fumbled with the opinionsthe f


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inal line of Kennedys opinion, sending the case back to Florida even though therewas really nothing more the Florida court could do, confused many of themthe clerks shouted imprecations at the screen. The liberal ones slumped in their chairs; some left the room, overcome by their own irrelevance. We had a desire to get out already and see if journalists and politicians could stop what we couldnt stop,says one. They contemplated a variety of optionsholding a press conference, perhaps, or leaking incriminating documents. There was just one problem: there werenone. If thered been a memo saying, I know this is total garbage but I want Bush tobe president,I think it would have found its way into the public domain,one clerk recalls.

Gores lawyers read him the ruling. At last he concluded that the Court had neverreally given him a shot, and he congratulated his legal team for making it so hard for the Court to justify its decision. Kevin Martin, the Scalia clerk whod tangled earlier with Stevenss clerks, informed his colleagues by e-mail that Gore was about to concede. To some, it seemed like gloating; Eduardo Penalver asked himto stop. Life sucks,Martin replied. Life may suck now,Penalver responded, but lis long.

There were reports that for some time afterward Souter was depressed over the decision. According to David Kaplan of Newsweek, Breyer told a group of Russian judges that the decision was the most outrageous, indefensible thingthe Court had ever done, while Souter complained to some prep-school students that had he had one more dayone more day,he could have won over Kennedy. But such comments were qui

ckly disavowed, were out of character for each man, and appeared inconsistent with the facts. The clerks, for instance, believed Souter had spent most of the last few crucial days in his chambers brooding over the case rather than working any back channels.

Fearful, perhaps, of the appearance of a quid pro quo, neither of the two justices most frequently rumored to be leaving, Rehnquist and OConnor, has in fact leftduring Bushs presidencyperhaps, some theorize, because of how it would look to let the man they anointed select their replacements. The justices who ruled for President Bush gave themselves, in effect, a four-year sentence,said Ron Klain.

OConnor confessed surprise at the anger that greeted the decision, but that seemed to reflect navet more than any sober second thoughts. On her 71st birthday, in M

arch 2001, she was sitting in the Kennedy Center when Arthur Miller, the playwright, denounced what the Court had done. Around Washington, a few people stoppedshaking her hand, and Justice Scalias too; the consensus has since grown that because of Bush v. Gore, he can never be named chief justice.

The experience left scars on those who lived through it. I went through a lawyersexistential crisis,one of the clerks recalls. People afterwards said, It must havebeen very exciting,says another. It was not that exciting. What I felt was beyondanger. It was really a profound sense of loss.But a conservative clerk insiststhat when the records are opened and the histories written, the architects of Bush v. Gore will be vindicated. When everybodys dead and they read it all, it wont be embarrassing,he predicts.

Ultimately, only the five justices in the majority know how and why they decidedthe case as they did and whether they did it in good or bad faith. Perhaps eventhey dont know the answer. An insider was asked if the five would pass a lie-detector test on the subject. I honestly dont know,this insider replies. People are aazing self-kidders.

While the Supreme Court was pondering the case, a calm settled over the canvassing boards around Florida, as the manual recount continued. Judge Terry Lewis, assigned by the Florida Supreme Court to put its order into action, had called onthe counties not to announce any results until the work was done. In the meantim


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e, Bushs lead had diminished to 154 votes.

In midafternoon on Saturday, December 9, one of the few still-partisan observersin Pat Hollarns Okaloosa warehouse of vote counters got a call on his cell phone. He slams it down and says, Stop! Stop!Hollarn recalls. And I said, Excuse me, your problem?He said, I just found out that the United States Supreme Court saysyoure supposed to stop.I said, Well have to have something more definitive than yor phone call.

After several hard hours of sorting, Hollarns staffers had nearly finished separating the undervotes from the rest of the ballots and were about to start counting them. Now Hollarns own phone rang. On the line was Clay Roberts, Katherine Harriss director of elections. He says, Im calling to tell you that you have to stop yor process right now.Minutes later, a fax from Robertss office confirmed the news.So much time had been put into counting by what seemed a fair method at last. And now, with stunning suddenness, it was stopped.

Everybody was hugging each other and taking each others phone numbers and addresses,Hollarn recalls. They helped me clean up all the stuff. We put everything awayand everybody went home and that was the end of it.

A year after the election, a consortium of newspapers examined the ballots and reported that had the Supreme Court not intervened in the recount, Bush still would have won the election by the slimmest of margins, a headline that gave comfor

t to Democrats and Republicans alike. There was only one problem. The newspapershad looked at only the undervotes, which the Florida Supreme Court had orderedto be examined for the recount. But there were also more than 113,000 overvotes.Later examination by the same papers of the overvoteswhich Judge Lewis says he would have been inclined to considerdetermined that Gore would have edged out Bushhad they been considered.

III.

Amid the media frenzy after the election, one story went untoldthe one in the footnote that Scalia had asked Ginsburg to delete from her dissent. In fact, thousands of African-Americans in Florida had been stripped of their right to vote.

Adora Obi Nweze, the president of the Florida State Conference of the N.A.A.C.P., went to her polling place and was told she couldnt vote because she had voted absenteeeven though she hadnt. Cathy Jackson of Broward, whod been a registered voter since 1996, showed up at the polls and was told she was not on the rolls. After seeing a white woman casting an affidavit ballot, she asked if she could do the same. She was turned down. Donnise DeSouza of Miami was also told that she wasnt on the rolls. She was moved to the problem line; soon thereafter, the polls closed, and she was sent home. Lavonna Lewis was on the rolls. But after waiting inline for hours, the polls closed. She was told to leave, while a white man was allowed to get in line, she says.

U.S. congresswoman Corrine Brown, who was followed into her polling place by a local television crew, was told her ballot had been sent to Washington, D.C., and

so she couldnt vote in Florida. Only after two and a half hours was she allowedto cast her ballot. Brown had registered thousands of students from 10 Florida colleges in the months prior to the election. We put them on buses,she says, took them down to the supervisors office. Had them register. When it came time to vote,they were not on the rolls!Wallace McDonald of Hillsborough County went to thepolls and was told he couldnt vote because he was a feloneven though he wasnt. Thephone lines at the N.A.A.C.P. offices were ringing off the hook with stories like these. What happened that dayI cant even put it in words anymore,says Donna Brazle, Gores campaign manager, whose sister was asked for three forms of identification in Seminole County before she was allowed to vote. It was the most painful, d


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ehumanizing, demoralizing thing Ive ever experienced in my years of organizing.

For African-Americans it was the latest outrage perpetrated by Jeb Bushs government. During his unsuccessful bid for governor in 94, Jeb was asked what he would do for the African-American community. Probably nothing,he answered. In November 1999, he announced his One Florida Initiative, in which, with the stroke of a pen, he ended mandatory affirmative-action quotas by cutting off preferential treatment in the awarding of state contracts, university admissions, and government hiring. Tom Hill, then a state representative, and U.S. congressman Kendrick Meek, then a 33-year-old state senator, staged a 25-hour sit-in outside Jebs office. [The initiative was done] without any consultation from the legislators, students, teachers, the people who were going to be affected,says Meek. Jeb wasnt moved by their presence. Kick their asses out,he told an aide. (He later claimed to be referring to reporters stationed near the sit-in.) Energized, African-Americans marched through Tallahassee and Fort Lauderdale. They also registered to vote. ByElection Day 2000, 934,261 blacks were registered, up by nearly 100,000 since 1996.

Election Day itself felt like payback. Jesse Jackson immediately took up the cause in the streets of Florida, but at that point the facts were simply too sketchy, too anecdotal, too mixed up with simple bureaucratic ineptness to prove any kind of conspiracy. Anyone wanting to get Gore into the White House believed thathitching the cause to Jackson was madness; they wanted the middle, not the lefty fringe. Through a request from Brazile, Gore asked Jackson to get out of the w

ay.

In retrospect, the claims of disenfranchisement were hardly phony. In January and February 2001, the U.S. Commission on Civil Rights, the highly divided, highlypartisan government-appointed group formed in 1957, heard more than 30 hours ofdamning testimony from more than 100 witnesses. The report, which came out in June of that year, made a strong case that the election violated the Voting Rights Act of 1965. The commissioners duly passed their report up to newly installedattorney general Ashcroft. Little was done.

Strong as the report from the Commission was, it did not yet have the full story. The disenfranchisement of African-Americans in Florida was embedded in many facets of the electionfrom the equipment used to the actions of key local election

officials, to the politically motivated manipulation of arcane Florida law, to the knowing passivity of Jeb Bush himself. Nowhere was that more obvious than inGadsden County.

Twenty minutes west of Tallahassee, Gadsden is one of Floridas poorest counties.African-Americans make up 57 percent of the population, the largest percentage of any county in the state. Even so, the 2000 election was run by a white conservative supervisor, in this case the late Denny Hutchinson.

He thought things were fine as they were,says the extra-large and jolly Ed Dixon, adsden County commissioner, strolling down the towns nearly empty main drag in anenormous basketball jersey. He never advocated for anything.Hutchinsons uncle hadbeen supervisor before him. Denny, though he was a Democrata virtual prerequisit

e for election in Gadsdenspoke openly about giving money to George Bush, according to a source. When the commissioners wanted to put in more polling places to accommodate the increase in registration, Hutchinson wouldnt budge. He never advocated for any increased precincts, even though some of our people had to drive 30 miles to get to a poll,says Dixon. In the only county thats a majority African-American,he adds, you want a decreased turnout.

In November 2000, Shirley Green Knight, Hutchinsons deputy, a soft-spoken African-American, had recently defeated him for the office of elections supervisor, though she had yet to assume the office. After the votes had been tallied, she noti


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ced something strange: more than 2,000 ballots, out of 14,727 cast, had not beenincluded in the registered count.

How had this happened? Because of a very technical but profoundly important detail. The central optiscan machine used in Gadsden had a sorting switch which whenput in the onposition would cause the machine to record overvotes or undervotesin a separate category for possible review. After the election, Knight says, shelearned that Hutchinson had demanded that the switch be kept off. I have no ideawhy he would do that,says Knight. Seeing how many ballots never got counted, she urged him to run them through the machine againthis time with the sorting switch onbut he resisted. Hutchinson was finally overruled by the Gadsden canvassing board. They looked at the rejected ballots. Sure enough, they were overvotesand for good reason.

Gadsden had used a variant of the caterpillar ballot, in which the candidatesnames appeared in two columns. One column listed Bush, Gore, and six others. The next column listed two more candidatesMonica Moorehead and Howard Phillipsas well asa line that said, Write-In Candidate.Thinking they were voting in different races, hundreds of voters had filled in a circle for one candidate in each column, thereby voting twice for president. Others filled in the circle for Gore and then, wanting to be extra clear, wrote Gorein the write-in space. All these votes were tossed.

In some optiscan counties, such overvotes would have been spit right back at the

voter, giving him a chance to correct his mistake on the spot. But Gadsden, like many other poor counties, used a cheaper system, in which overvotes would onlyregister at the central optical-scanner machine, denying the voter a chance tocorrect his mistake. Roberts and Harris should have been aware of this crucial discrepancy. Neighboring Leon County used the more expensive machinery, and technicians there had warned the Division of Elections well before Election Day of the disparate impact these two different systems would have. They had even set upa demonstration of the superior machines across the street from the division offices in Tallahassee.

Some of the faulty ballots in Gadsden were counted in those first days after theelection as part of the countys automatic recount,giving Gore a net gain of 153.Those votes, at least, were included in the certified state count. Three hours e

ast in Duval County, however, voters werent as lucky. Here, in a county that includes Jacksonville, which is 29 percent black, 21,000 votes were thrown out for being overvotes, and here, an overvote was even more likely than in Gadsden. Prior to the election, the elections supervisor, John Stafford, had placed a sample-ballot insert in the local papers instructing citizens to vote every page. Any voter who followed this instruction invalidated his or her ballot in the process.

During the critical 72-hour period in which manual recounts could be requested,Mike Langton, chairman of the northeast Florida region for the Gore campaign, spent hours with Stafford, a white Republican. I asked John Stafford how many under-and overvotes there were, and he said, Oh, just a few,recalls Langton. Then, shortly after the deadline to ask for a recount had passed, Stafford revealed that the number of overvotes was actually 21,000. Nearly half of those were from four

black precincts that normally vote over 90 percent Democratic.

Today, Stafford remains silent about what happened four years ago. His assistant, Dick Carlberg, will speak, but only in the presence of his attorney. He claimshe sent an e-mail to the states Division of Elections two days after the electionbefore the deadline to ask for a manual recountinforming the Division of Elections of the thousands of overvotes. I was told, O.K.,and that was about it,Carlberg ays.

If the Gadsden and Duval stories might be characterized as a kind of disenfranch


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isement by conscious neglect, a much more sinister story began to emerge in themonths following the election. Throughout Florida, peoplemany of them black men,such as Willie Steen, a decorated Gulf War veteranwent to the polls and were informed that they couldnt vote, because they were convicted felonseven though they werent.

The poll worker looked at the computer and said that there was something about mebeing a felon,says Steen, who showed up at his polling place in Hillsborough County, young son in tow. Florida is one of just seven states that deny former felons the right to vote, but Steen wasnt a felon.

Ive never been arrested before in my life,Steen told the woman. A neighbor on linebehind him heard the whole exchange. Steen tried to hide his embarrassment andquietly pleaded with the poll worker, How could I have ended up on the list? Shecouldnt give him an answer. As the line lengthened, she grew impatient. She brushed me off and said, Hey, get to the side,recalls Steen. The alleged felony, Steenlater learned, took place between 1991 and 1993when he was stationed in the Persian Gulf.

Steen wasnt the only upstanding black citizen named Willie on the list. So was Willie Dixon, a Tampa youth leader and pastor, and Willie Whiting, a pastor in Tallahassee. In Jacksonville, Roosevelt Cobbs learned through the mail that he, too, was a felon, though he wasnt. The same thing happened to Roosevelt Lawrence. Throughout the state, scores of innocent people found themselves on the purge list

.

The story got little attention at the time. Only Greg Palast, a fringe[3], old-school investigator, complete with fedora, was on its trail. With a background inracketeering investigation for the government, Palast broke part of the story while the recount was still going on, but he did it in England, in The Observer.None of the mainstream media in the U.S. would touch it. Stories of black peoplelosing rights is pass, its not discussed, no one cares,says Palast, whose reporting on the subject appears in his 2002 book, The Best Democracy Money Can Buy. A black person accused of being a felon is always guilty.

How the state ended up with the felon listin the first place has its roots in oneof the uglier chapters in American history. In 1868, Florida, as a way of keepi

ng former slaves away from the polls, put in its constitution that prisoners would permanently be denied the right to vote unless they were granted clemency bythe governor. In those days, and for nearly a hundred years after, a black man looking at a white woman was cause for arrest. The felony clause was just one ofmany measures taken to keep blacks off the rolls, including literacy tests, polltaxes, and grandfather clauses,by which a man could vote only if his grandfatherhad. All these other methods were effectively ended. But the constitutional provision about former felons remained.

In Florida, there are an estimated 700,000 ex-felons, and 1 in 4 is a black male. Six years ago, Florida state representative Chris Smith, of Fort Lauderdale, sat outside a local Winn-Dixie grocery store trying to get people to register. A lot of black men that looked like me, around my age, would just walk past me and

say, Felony,Felony,and not even attempt to register to vote,Smith recalls. Why many? In the past few years the majority-Republican legislature has upgraded certain misdemeanors to felonies and also created dozens of new felonies that disproportionately affect the urban poor. Intercepting police communications with a ham radio is a felony. So is the cashing of two unemployment checks after the recipient has gotten a new job. State senator Frederica Wilson, like other black lawmakers in Florida, believes these felonies are aimed at African-American people.

Meanwhile, black lawmakers have tried in vain to legislate rights restoration tosome offenders who have served their sentences. Wilson recalls one such proposa


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l that was smacked down by Republican state senator Anna Cowin, head of the Ethics and Elections Committee. I literally begged her, Please just agenda it,says Wilon. She would not agenda it.

I philosophically did not believe that felons should automatically get their rights restored,says Cowin, and neither did the governor nor the leadership.She adds,It makes elections very expensive too, because you have all these thousands andthousands of peopleI mean tens of thousands of peopleto send literature to. . . .The people dont come to vote, anyway. So I think people need to go through a hoop.

James Klinakis, who, like many ex-felons in Florida, is a recovering drug addict, has had some experience with what Cowin calls a hoop.For the past five years, Klinakis, the operations director for a drug-rehab program called Better Way of Miami, has been invited by Governor Bush to the annual drug summit, where he advises Bush on drug issues. For 10 years he has been applying to have his voting rights restored, a process that has included everything from a one-page form to acollege-application-size package, complete with references, letters, and soul-searching essays. Like thousands of others, Klinakis has seen no movement on his case whatsoever. While some governors, such as Reubin Askew and Bob Graham, restored the rights of tens of thousands of felons whod served their time, Jeb Bush allowed the backlog of applicants to grow to as many as 62,000 in 2002.

The law that disenfranchises felons took on a new life after the 1997 Miami mayo

ral race, in which a number of dead people voted,as did 105 felons. Seventy-one percent of those felons found on voter rolls were registered Democrats. Weeks later, the state legislature went to work on a sweeping antifraud bill. It called for stricter enforcement of the constitutional provision and stated that the division shall annually contract with a private entityto maintain a list of deceasedindividuals still on the rolls, those adjudicated mentally incompetentto vote, and, most important, felons. The appropriations committee allocated $4 million tothe project; no money was appropriated from the state for voter education in 1998, 1999, or 2000.

When the state started soliciting bids for the high-tech felon hunt, at least three companies stepped up. One was Computer Business Services; another, Professional Analytical Systems & Software, bid under $10,000. After three rounds of bidd

ing, Database Technologies, a Boca Raton company (since merged with ChoicePoint), emerged the winner. In its proposal, DBT estimated the cost at $4 million, knowing somehow that this was the exact amount the state had provided for the job. There has been four million dollars allocated by the state for this project,DBT senior vice president of operations George Bruder wrote to his boss, C.E.O. ChuckLieppe, in an e-mail. The bid we are constructing will have three different levels for price (a little bird told me this will help).The little bird was correct.

Exactly what kind of company was hired to clean up Floridas rolls of felons, or dirtbags,as one DBT employee referred to them? DBT supportedand was highly praisedbya now defunct conservative advocacy group called the Voting Integrity Project (V.I.P.). Touting voting rights,V.I.P. sprang into action in 1996 in response to the national motor voterlaw, which passed in 1993. The law had increased voter reg

istration nationwide by an estimated seven million, with minorities constitutinga disproportionate number of those new voters.

While some members of the Division of Elections were appalled by the price tag,Secretary of State Sandra Mortham, according to a source formerly inside the division, nursed the felon list along as her pet project. Ethel Baxter, the director of the division under Mortham and a civil servant for 30 years, working underboth Republicans and Democrats, was reportedly skeptical of the idea. But Mortham, according to this source, instructed her to sign on to it. (Mortham says thatshe had no investment in the project, and that, regardless of how Baxter felt,


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they were obligated to fulfill a legislative action.)

From the start, there were questions about the felon list. We were sent this purge list in August of 1998,says Leon County elections supervisor Ion Sancho, moving feverishly through his cluttered office. We started sending letters and contacting voters, [saying] that we had evidence that they were potential felons and that they contact us or they were going to be removed from the rolls. Boy, did that cause a firestorm.One of those letters was sent to Sanchos friend Rick Johnson,a civil-rights attorney, who was no felon. Very few felons,Sancho points out, aremembers of the Florida bar.

Sancho decided to get to the bottom of it. Early in 2000 he sat down with EmmettBuckyMitchell, the Division of Electionsassistant general counsel, and demandedto know why the list contained so many names of innocent people. Bucky told me face-to-face that the Division of Elections was working on the problem,recalls Sancho, that it was the vendors [DBTs] problem, and that they were telling the vendorto correct it.

James Lee, chief marketing officer of ChoicePoint, the company that acquired DBTin the spring of 2000, says that the state did just the opposite. Between the 1998 run and the 1999 run, the office of elections relaxed the criteria from 80 percent to 70 percent name match,says Lee. Because after the first year they werentgetting enough names.

And so, equipped with a database of felons supplied by the Florida Department ofLaw Enforcement (F.D.L.E.), DBT programmers crouched at their computers and started scooping up names, many of which were only partial matches, from the Florida voter rolls and various other databases. Middle initials didnt need to be the same; suffixes, such as Jr. and Sr., were ignored. Willie D. Whiting Jr., pastor,was caught because Willie J. Whiting was a felon. First and middle names couldbe switched around: Deborah Ann, Ann Deborahsame thing. Nicknames were fineRobert,Bob, Bobby. The spelling of the last name didnt have to be exact, either. The only thing Willie Steen was guilty of was having a name similar to that of a felonnamed Willie OSteen.

DBT project manager Marlene Thorogood expressed concern in a March 1999 e-mail to the Division of Elections that the new parameters might result in false positiv

es(i.e., wrongly included people). Bucky Mitchell wrote back, explaining the states position: Obviously, we want to capture more names that possibly arent matchesand let the [elections] supervisors make a final determination rather than exclude certain matches altogether.Guilty until proved innocent, in other words.

In May 2000, supervisors got a new list, for the upcoming election, and discovered that it included 8,000 names from Texas. But the Texans, now living in Florida, werent guilty of felonies, only misdemeanors. DBT took the blame, claiming a computer glitch, and hastily corrected the problem. How, though, had Texans gotten on the list in the first place? Texas was a state that automatically restoredthe rights of felons who had served their time.

According to two separate Florida court rulings rendered before the 2000 electio

n, prisoners whod had their rights restored in other states retained them when they moved across state lines to Florida. Instead, the Division of Elections was advised by the Office of Executive Clemency to have DBT include out-of-state ex-felons residing in Florida, even those from so-called automatic-restoration states. In order to vote, these ex-felons would have to show written proof o

Documents

The Path to Florida