Sunday, December 17, 2000

By Mackenzie Carpenter, Post-Gazette Staff Writer

It wasn't exactly an acceptance speech.

There were no bands or balloons or cheering crowds before a floodlit state Capitol -- just a gaggle of reporters outside the Texas governor's mansion on a damp November morning, the day after the closest presidential election in a century.

Butterflies / Palm Beach County's now infamous "butterfly ballots" confused hundreds, perhaps thousands, of voters. Statisticians "proved" the side-by-side format gave Pat Buchanan nearly 4,000 votes intended for Al Gore, more than enough for gore to have won. Republicans and late-night talk show hosts ridiculed the voters who complained, calling them addled or whiny. (Charles Krupa, Associated Press)

But when George W. Bush stood before the cameras, he spoke quietly, almost gingerly -- perhaps befitting a victor whose Florida vote margin was a slim 1,784 votes, triggering an automatic recount of the 6 million votes cast.

"If that result is confirmed ... as we expect it to be, then we have won the election," Bush said. The only glint of impatience came as he stepped away from the microphones.

"I would expect that Secretary Cheney and I will become president- and vice-president-elect in short order," he said, his voice hardening slightly over those last three words.

Several hours after Bush staked that tentative claim to victory, Vice President Al Gore strode onto a stage lined with American flags at a Nashville hotel, looking pale but determined, and laid out the themes that would dominate his challenge over the next few weeks: While Bush had stressed finality and closure, Gore would call for certainty and accuracy.

"This matter must be resolved expeditiously, but deliberately and without any rush to judgment," he said.

What followed, though, was something that neither side could claim to be happy with: an American election won by lawsuit.

It would be an unprecedented 35 days of legal jujitsu and political spin, fought first in anonymous-looking canvassing rooms, and then in progressively grander county, state and federal courts and, finally, in arguments before the U.S. Supreme Court, which would, for the first time in its history, release an audio tape of its proceedings on the same day they were held.

And it would be fought in that amorphous place known as "the court of public opinion," on hundreds of television talk shows, on the Web and on the streets.

It would even develop its own vocabulary and its own subtext: Palm Beach County would take on a new meaning besides being a playground for the rich. There would be talk of "butterfly ballots" to describe the two-sided presidential ballot used in that county, and everyone would become familiar with that little confetti-like piece of paper called a "chad," which was supposed to pop out when a stylus pierced it, enabling a machine to record a vote, but didn't always cooperate.

More than 40 suits

In the ensuing weeks, scores of judges would preside over at least 42 separate lawsuits. Republicans claimed that their man had played by the rules and won, and Gore was trying to steal the election. Democrats cited thousands of irregularities in counties relying on the archaic paper punch-card system of voting. They cited confused citizens who voted twice, or for the wrong person, and they pointed to problems for African-American voters, who had turned out in record numbers, only to be turned away from the polls because of questions over their registration or residency.

	Supreme Confusion / When the U.S. Supreme Court on the night of Dec. 12 handed out its splintered, 52-page, 7-2 / 5-4 decision with six written opinions -- four of them dissents -- it took a while for lawyers and reporters to figure out what they were trying to say. Within an hour or two, just about everybody had sorted it out: Bush wins; Gore loses. (Charles Krupa, Associated Press)

Occasionally, both sides adopted each other's arguments when it served their purposes.

Gore lawyers vociferously objected to counting certain absentee ballots in Florida (mostly presumed to be Bush votes from a predominantly Republican military), despite the campaign's official line that every vote counted; Bush supporters demanded hand recounts in New Mexico, where Gore won by a paper-thin margin, while fighting them in Florida.

Despite those inconsistencies, both men appeared to believe sincerely that they had won.

Gore felt his 330,000 popular vote margin gave him the moral authority to pursue a victory in the Electoral College, claiming more Floridians had intended to vote for him than for his opponent.

Bush and his supporters claimed their strategy all along had been to win the electoral vote contest -- and had the television networks not called Florida for Gore so early, more Republicans would have turned out to give Bush a popular vote win.

At the end of the campaign, both men emerged scarred and diminished by the battle, but neither seemed to care. In their search for legitimacy, both hewed to the Vince Lombardi line: winning is not everything; it's the only thing.

The first days

When it became clear in the early hours of Nov. 8 that the Florida contest was narrowing, both sides were ready to move.

In what would be "the largest peacetime mobilization of legal talent in the country's history," according to Benjamin Ginsburg, a top Bush legal strategist, some of the priciest attorneys in the nation raced to Tallahassee.

David Boies, the lawyer who brought Microsoft to its knees in the U.S. Justice Department's antitrust lawsuit, was enlisted to perform similar miracles for Gore. The Republicans reached out to Barry Richard, a noted Florida litigator, and Phil Beck, who had defeated Boies in a price-fixing case against American Airlines.

To manage the spin in a dignified way, each campaign trotted out former secretaries of state, elder statesmen who weren't above engaging in partisan warfare. James A. Baker III -- "the velvet hammer," as he was known in Washington circles for his elegant emasculation of opponents -- fronted for the Republicans. The imperturbable Warren Christopher, veteran of hostage crises and President Clinton's first administration, played the role for Democrats.

On that first day after the election, legal experts interviewed on television voiced skepticism that an 1,800-vote margin could be reversed by the state's automatic recount, but those doubtful voices were quickly overtaken by news reports that hundreds of voters in Palm Beach had been confused by a two-page "butterfly ballot" and unintentionally might have voted for Reform Party candidate Patrick Buchanan instead of Gore.

Many of these elderly voters were Jewish and harbored deep suspicions about Buchanan, who had published a book claiming that Adolf Hitler was "misunderstood."

Republicans, on the other hand, argued that the butterfly ballot -- designed by a Democratic election official to make it easier for senior citizens to read -- had been publicized and approved beforehand.

They also produced a butterfly ballot used in Cook County, Ill., scene of suspect elections in the past under Richard Daley, the legendary iron-fisted Democratic mayor of Chicago, whose son, William J. Daley, was Gore's campaign manager.

Early on, Bush forces rejected the idea of asking for manual recounts in counties Bush had won; most miscast votes appeared to be from Democrats, and would weaken Bush's central argument that recounts were risky.

Hurry up and wait

Over the next month, the legal war would be fought in two stages: a nearly three-week "protest" period, which ended when the votes were certified by Florida's secretary of state, followed by a "contest" period, in which those election totals were challenged. It was a game played at fast and slow speeds, sometimes simultaneously: Gore forces fought to hurry the hand recounts along, while delaying certification of those counts for as long as possible; Bush's team tried to do the opposite.

Gore wanted hand recounts of hundreds of thousands of votes in four heavily Democratic counties, but he decided not to become directly involved in a legal challenge by private citizens of the confusing butterfly ballots in Palm Beach County. He knew courts rarely permitted revotes on the grounds of voter "confusion."

Instead, the Gore team went after punch-card ballots that had not been recognized by a machine for any number of reasons -- a "chad" hadn't fallen off sufficiently after being punched by a stylus, or had clogged the machine, or was only slightly "dimpled," or indented.

In Palm Beach County, for instance, an estimated 19,000 ballots were "overvotes," discarded because they were double-punched for two presidential candidates; another 10,000 were "undervotes" that recorded no vote for president.

Somewhere among these ballots, Gore partisans believed, were the votes sufficient to put their man over the top in Florida.

But some argued that Gore's legal team made a fatal miscalculation during this protest phase. By trying to stretch the deadline out for certification, they left themselves less time to seek recounts during the post-certification contest period, which would end Dec. 12, when each state was supposed to produce a slate of electors for the Dec. 18 Electoral College.

On Monday, Nov. 13, Bush's lawyers went to federal court to try to stop the hand counts, arguing they were unreliable, subjective and susceptible to "mischief."

It was a strange role reversal for both parties; Bush and the Republicans, defenders of states' rights, sought federal intervention in what appeared to be a state matter; Gore's Democrats, champions of the federal government, fought hard to keep the case in Florida, whose Supreme Court was presumed to be sympathetic to the Democrats.

Gore's people pointed out that Bush had signed a law in Texas calling manual recount the preferred method in contested elections; Baker countered by saying that the Texas law required uniform standards for such a recount, while Florida's rules were left up to each county.

Target: Katherine Harris

The week after the election dawned in confusion.

The issue of time had become paramount. Democrats fretted: Would Florida Secretary of State Katherine Harris be flexible about allowing the recounts to proceed past the official deadline of Nov. 14? Absolutely not, said Harris, prompting Democrats to cry foul. She would soon become their favorite target, both in the courts and out: They criticized her makeup, her political ambition, and said she had a conflict of interest as co-chair of the Bush campaign in Florida.

Bush's allies, on the other hand, gave the secretary a standing ovation when the overwhelmingly Republican state Legislature convened the next week.

That week, the courts were all over the place. On Monday, Nov. 13, a federal judge turned down Bush's request to halt the manual recounts, which he promptly appealed to the 11th U.S. Circuit Court of Appeals in Atlanta; on Tuesday, a state judge told Harris she could stick to her deadline, but must consider counties' requests for amended results and could not act "arbitrarily."

These confusing developments appeared to spook canvassing officials.

Election officials in Palm Beach County first debated whether a hand count was warranted, and then repeatedly changed the rules for counting votes. Should the chads hang by one, two or three corners? Should sunlight show through? Such confusion only bolstered the Bush team's contention that the process was highly subjective.

Some recounts proceed

On Wednesday, Nov. 15, Harris certified the official returns from all 67 counties, ignoring the ongoing hand counts, and said she would declare a winner Saturday when the overseas absentee ballots were tallied.

Gore would appeal her decision, but first went on television that night, offering to meet with Bush. He would drop all legal challenges if Bush agreed to either a manual recount in three counties; or to have a full recount of all votes in Florida.

No one called the vice president magnanimous; the plan offered Gore his best, if not his only, shot at victory. Bush promptly rejected it.

With Bush's lead now down to about 300 votes as a result of the automatic recount, three counties -- Miami-Dade, Broward and Palm Beach -- were continuing manual recounts, despite Harris' warning she would not include them in the Nov. 18 certification.

On Friday, Nov. 17, events moved at a dizzying pace. In the morning, a state judge ruled that Harris' decision not to include hand-counted votes could stand; that evening, the Florida Supreme Court overturned that ruling and ordered Harris not to proceed until it had made a decision in the matter.

While the Florida Supreme Court's decision gave Gore new hope, he stumbled that weekend on the p.r. front.

As predicted, Bush's lead had edged upward to 930 votes after all the absentee ballots were counted Nov. 18. But the aggressive challenge by Democrats of absentee ballots, most of them from military personnel, had led to the rejection of about 1,000 absentee votes that hadn't been postmarked -- most of them, presumably, for Bush.

Republicans were outraged and charged that Gore was trying to deprive military men and women of their right to vote. "It was a sad day for our country," said Gen. Norman Schwarzkopf, hero of Desert Storm.

Democrats quickly backed off; vice-presidential candidate Joseph Lieberman went on television to say those votes should be counted.

Low point in Miami-Dade

As the third week after the election began, there was more good news for Gore. The Florida Supreme Court ruled unanimously late Tuesday night, Nov. 21, that Harris had to include hand-counted ballots, and moved the deadline for certification to Sunday, Nov. 26.

It was a low point for the Bush forces.

With recounts in three counties proceeding, and with Gore forces claiming they had enough votes to erase Bush's lead, an outraged Baker went on television inviting the Florida Legislature, which was 2-1 Republican, to intervene.

Bush also appealed the Florida Supreme Court's decision to the U.S. Supreme Court, a move that most legal observers thought would fail, since the high court traditionally avoids disputes over state laws. The court, however, agreed to take the case, but only on narrow questions of law, rather than constitutionality.

But then, on Wednesday, Nov. 22, came an event that many believe turned the tide against Gore: The Miami-Dade canvassing board suddenly decided to halt its recount. Democrats complained that the board was intimidated into doing so by angry Republican protesters beating on the doors outside the counting room, which had been closed to the public (although some of those shouting loudest were reportedly members of the local press corps).

There was also talk that the board feared alienating the powerful and mostly Republican Cuban-American community, whose leaders were angry that the board had begun counting mostly Democratic precincts first. Untrue, said the Miami-Dade canvassing board chairman. They simply couldn't meet the second deadline in time.

From that point on, it seemed to be all downhill for Gore.

The contest phase

On Sunday night, Nov. 26, in a heavily guarded ceremony held before only pool reporters and a few observers, Harris announced the certified totals: 2,912,790 for Bush; 2,912,253 for Gore. Bush was officially the winner, by 537 "chads," as it were, out of nearly 6 million cast.

A visibly angry Lieberman was first to react on television, announcing that the Gore campaign would contest the results the next day. He was followed a short time later by Bush, speaking in subdued, confident tones from the Texas governor's mansion.

It was, in a way, his second try at an acceptance speech: He was conciliatory, soft-spoken, and said he would begin working immediately on a transition to the White House.

Gore responded with a media blitz of his own, appearing on every network newscast and major talk show to press his case for contesting the election.

At this point, the spotlight shifted to Florida Judge N. Sanders Sauls, who had been randomly selected to hear the Gore appeal in Leon County, home of the state capital, Tallahassee.

Folksy but inscrutable, Sauls early on sent a message he was in no hurry to grant the Gore team's request for an immediate hand count of 14,000 contested ballots. Instead, he ordered a hearing on the issue for Saturday, Dec. 2, and called for the shipment of 1.1 million ballots to Tallahassee.

Historic hearing

That Friday, the spotlight shifted briefly to the U.S. Supreme Court, which heard arguments on whether Florida's highest court, in extending the deadline for certification from Nov. 14 to Nov. 26, had merely interpreted the law (which would be OK) or had made new law (not OK).

At issue were two conflicting provisions in Florida election law. One set a tight deadline for certifying votes. The other allowed for time-consuming hand recounts in disputed contests.

On such high-profile cases, the U.S. Supreme Court looks for unanimity to protect its credibility as an impartial interpreter of the law, but this did not appear to be a court heading toward consensus: Justice Ruth Bader Ginsburg, a liberal, scolded Bush lawyer Ted Olson for impugning the Florida high court's integrity; Justice Sandra Day O'Connor, a conservative who sometimes is a swing vote, said firmly that it appeared the Florida court had ignored the certification deadline set in the statute.

The following Monday, Dec. 4, the justices surprised everyone. In an unsigned order, they vacated the Florida high court's decision but said it could come back with a new opinion containing more information about why it ruled the way it did.

Was it a sidestep, to avoid having to split publicly on the issue? Possibly. But the court's message also was in keeping with the strict-constructionist philosophies of its conservatives: They wanted the Florida justices to show that they had extended the deadline according to an interpretation of Florida law as guided by the U.S. Constitution, not the state Constitution.

A few hours later, the Supreme Court was upstaged by Judge Sauls, who left no doubt where he stood.

Sauls rejected every one of the Gore lawyers' claims for a recount. He said there was no evidence of gross negligence, fraud or any other malfeasance, and there was no authority in Florida law for a complete manual recount of anything less than all the votes.

Bush partisans hailed the judge's ruling, calling it well-reasoned and thorough. Gore's people said Sauls had ignored the evidence when he declined to examine the ballots that had been trucked up to Tallahassee.

Even before Sauls had left his courtroom, Gore's staff had run to the Florida Supreme Court with a hand-delivered appeal.

Winding down

After a week during which an increasingly confident Bush kept busy with transition plans, Gore began writing his concession speech -- along with a victory speech, just in case -- on Friday morning, Dec. 8.

As the clock ticked down that afternoon, two more rulings went against Gore. Judges upheld the inclusion of 25,000 absentee ballots in Seminole and Martin counties that had been disputed because voter ID numbers on many of them had been corrected by Republican operatives. While Gore hadn't joined in the suits, he had spoken approvingly of them in public, because wins there would have given him the election. With those two rulings, his options shrank further.

All that was left was Gore's appeal of Sauls' no-recount decision to the Florida Supreme Court, and few people believed the court would overturn it.

At four o'clock, Florida's Supreme Court spokesman, Craig Waters, stepped in front of the courthouse to announce the court's decision. There was silence until he uttered the words "manual recount," and then, there was something like a strangled yell from the crowd, followed by cheers and boos and hoots.

In an extraordinary last-minute twist, against all expectations, the high court had decided, 4-3, to order recounts, not just of the undervotes in Miami-Dade and Palm Beach counties requested by the Gore campaign, but in every county in the state. The court also ordered that votes from previous hand recounts be added to the final tally.

That gave more votes to Gore, shrinking Bush's official margin to an absurdly minuscule 193 votes -- or less than a hundredth of 1 percent of all the Florida votes that were cast.

Gore was alive again. Just when he and his supporters had practically given up hope, he was handed a reprieve that might just propel him into the White House, if enough votes were found among those various dented and dimpled ballots.

The four Florida justices in the majority sharply criticized Sauls for, among other things, refusing to look at the ballots he had ordered to be shipped to Tallahassee. The three dissenting justices, however, were equally vehement. A recount would lead to chaos, if not an outright constitutional crisis.

Still an uphill fight

The odds were still heavily stacked against Gore. Even if he were to win a recount, the Florida Legislature planned to elect its own slate of pro-Bush electors before then.

If the U.S. Congress were later faced with a choice of two slates of electors from Florida, it would have to decide which one to accept. The House was a sure bet to choose Bush electors, and even if Gore, as president of the Senate, were to break a 50-50 tie in favor of himself, constitutional scholars noted that a divided Congress would then have to rely on the slate of electors certified by Florida's governor -- Jeb Bush.

The night of the Florida Supreme Court ruling, Republican lawyers rushed back to the U.S. Supreme Court, asking it to block the recount, arguing that the Florida court had failed to set any uniform standards for counting. That meant dimpled "chads" might be counted in one county, but not in another -- depriving voters of equal protection under the law.

Gore lawyers countered that a failure to tabulate the ballots, or even look at them, raised just-as-important equal protection concerns.

On Saturday morning, as directed by a state judge, election workers gathered in Florida's 67 counties to begin the counting process again. It went more smoothly than expected in most places, although there were some trouble spots.

And then, shortly after lunch, came the next shock.

Stop the recount, ordered the U.S. Supreme Court in a 5-4 decision. Hearings on the matter would be heard Monday.

A huge sigh of relief went up from the Bush camp; Gore supporters, who hadn't expected the court to halt a process that appeared to have widespread public support, were devastated. With only 2 1/2 days left until the Dec. 12 deadline for choosing electors, time had all but run out.

The cracks show

More startling was the openness of the court's split. There was a strong dissent by the court's four-member liberal wing, which argued that Bush's chances would not necessarily be hurt by a recount, while a halt to the process would effectively end Gore's prospects.

In response, Justice Antonin Scalia, the court's leading conservative intellectual, issued an unprecedented opinion defending the stay. There would be "irreparable harm" to Bush's candidacy if the counts continued. Scalia's opinion also suggested the court's majority had already made up its mind to support Bush -- even though neither side had yet submitted briefs in the case.

If anything, the 5-4 vote, breaking along the court's ideological fault line, was evidence the justices were just as divided as the rest of the nation. Those divisions were fully aired in a second extraordinary hearing, 10 days after the first, on Monday, Dec. 11.

In the audiotape released immediately afterward, the court's two swing votes, Sandra Day O'Connor and Anthony Kennedy, didn't seem inclined to defect from the five-vote majority. Had the Florida court shown enough deference to the Florida Legislature, queried O'Connor? And why hadn't the Florida court responded to the justices' order to explain its reasoning in the earlier case on the certification deadline?

Some in the court's liberal bloc also seemed troubled by the Florida court's decision to count undervotes without some kind of uniform standard. What kind of uniform standard could pass constitutional muster were a recount to continue, wondered Souter?

For once, Gore's brainy lawyer, David Boies, seemed at a loss. Since 1917, he noted, the Florida Supreme Court has repeatedly said the standard is the intent of the voter -- and that is left up to individual counties to determine, looking at individual ballots.

The final blow

In the end, it was too little, too late for Gore.

On Tuesday, Dec. 12, the Florida House voted for its own slate of Bush electors, and at 10 p.m. Tuesday night, the U.S. Supreme Court issued its final ruling, a 52-page decision so complex, with six written opinions -- four of them dissents -- that at first some television commentators mistakenly thought it was a possible win for Gore.

By remanding the case back to the Florida court "for further proceedings," the court seemed to be ordering a recount.

But no -- after nearly an hour of on-camera struggles by legal experts and pundits, the court's verdict became clearer. The 5-4 majority would not accept any new votes after the Dec. 12 deadline, which was ending in just two hours. In an unsigned order, the majority -- Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy -- said, in effect, to Florida's justices, "You can order a recount -- but you don't have the time to conduct it."

Two justices, David Souter and Stephen Breyer, agreed with the majority to send the case back to the Florida court, saying there were serious constitutional problems with how the hand recount was to be conducted. But they felt that the state should be given until Dec. 18 to solve them and complete it.

In a separate concurrence, the court's three conservatives -- Rehnquist, Scalia and Thomas -- went further than the five-vote majority opinion, saying the Florida high court had violated not only the U.S. Constitution, but state law as well.

Ruth Bader Ginsberg and John Paul Stevens, two of the more liberal justices, said the high court shouldn't have gotten involved at all in what was essentially a state matter.

Whatever confusion initially existed about the ruling, it was soon apparent the election was over, and that George W. Bush would become the nation's 43rd president.

Democrats, predictably, were outraged. Republicans, while publicly gratified by the court's decision, privately fretted that the inconclusive ending, without the high court finding definitively for Bush, would cast a cloud over his legitimacy. Both sides worried that the public's faith in its institutions -- in particular, the judiciary -- had been undermined.

While Gore lawyers spent much of that night scouring the opinion looking for any last openings, their candidate had, for the most part, made up his mind.

At 8:30 a.m. Wednesday morning, Dec. 13, he ordered the campaign to shut down its recount committee, and let out word he would concede that night.

Some of his supporters begged him not to use the word "concede." It was still unclear, they said, that he had actually lost. Withdraw, they urged.

Gore would have none of it. In a short, graceful speech that night, he expressed deep disappointment with the court's ruling, but offered his support to Bush -- and his concession, "for the sake of our unity as a people and our strength as a democracy."

Bush, too, was conciliatory, and delivered his address in the Texas House of Representatives, where he had reached legislative compromises with the Democratically controlled chamber.

Quoting Thomas Jefferson, who had won under similarly contentious circumstances, Bush said he would seek to "stand for principle, to be reasonable in manner, and above all, do great good for the cause of freedom and harmony."

After two previous tries at claiming victory, the third time was the charm.

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