Resisting the Recount: G.O.P.'s Depth Outdid Gore's Team in Florida
nytimes.com
December 22, 2000
By ADAM NAGOURNEY and DAVID BARSTOW
MIAMI, Dec. 21 If Al Gore wants to appreciate the forces that
defeated him in Florida over the last six weeks, he need not look
much beyond the scene on Monday morning in the Senate chamber in
Tallahassee: Gov. Jeb Bush and the state's entire Republican
leadership presiding in triumph as Florida's 25 electoral votes
were finally delivered to George W. Bush.
The ceremony was more than a celebration of Mr. Bush's ascent to
the White House. It was a display of the depth and complexity of
the political forces Mr. Gore confronted here in Florida. And it
demonstrated the extent to which Mr. Gore was up against far more
than the presidential nominee of the Republican Party. Mr. Gore may
have had some reason to feel that he was fighting the government of
Florida itself.
From the morning after the election, Jeb Bush took an intense and
passionate interest in the battle to make his brother president,
according to interviews with several state and Republican
officials, notwithstanding his effort to strike a low public
profile. He offered detailed guidance to his brother's lawyers on
how to navigate the political thicket that was South Florida,
providing information and insight about local officials who could
determine his brother's political future.
He enlisted his own campaign lawyer, Barry Richard of Tallahassee,
to be the chief Florida lawyer on his brother's legal team, and he
recruited dozens of volunteers to move into the disputed counties
in the days after the election, Republican officials said. And
within 24 hours after Election Day, six of the Florida governor's
senior political operatives took unpaid leaves to join the effort
against Mr. Gore, dealing with everything from answering routine
press calls to briefing out-of-town lawyers on Florida election
law. Mr. Bush's acting general counsel, Frank Jimenez, was the one
who telephoned Mr. Richard to request his services.
"I couldn't bear the thought of sitting behind my desk doing
nothing while this situation played itself out around me," Mr.
Jimenez said.
The Democrats also mobilized intensively and relentlessly, but
they had fewer levers of power. At every street corner
demonstration and counting hall, it seemed that they were
outnumbered, outshouted and outorganized by Republicans. The
state's two leading Democrats, Senator Bob Graham and Attorney
General Robert A. Butterworth, all but disappeared for long
stretches of the contest.
Jeb Bush, in his annual year-end interview with Florida Statehouse
reporters this week, again portrayed himself as mostly detached
from the effort that got his brother to the White House. He said he
paid close attention to the fight only in the first week after
Election Day, then "increasingly less, to the point where I was
really completely out of it."
But the extent to which both the state Republican Party and the
government offices it controlled in Florida assisted in Mr. Bush's
post-election success was suggested this week in interviews with
party operatives across the state and in Washington, with lawyers
and with aides to Jeb Bush and President-elect Bush.
While the Republicans were widely known to have a coordinated
strategy in Florida, the reach of the national party's connection
all the way down to minor county party affiliates is now becoming
even clearer. Local and state officials described in interviews a
web of activity from seminars on ballot challenges and election
law to the distribution of cheap cameras to collect evidence as
new indicators of how sophisticated their efforts were.
The state Republican Party, which is run by Al Cardenas, a lawyer
who has been a close ally of Jeb Bush's for 22 years, turned
overnight into a full-fledged operative arm of the Bush effort. It
turned over all three floors of its red-brick headquarters to Mr.
Bush's lawyers and strategists, led by James A. Baker III, the
former secretary of state, and Benjamin L. Ginsberg, the general
counsel for the Bush campaign.
Thirty state party employees who were to have been laid off after
Election Day were put at the round-the- clock service of the Bush
campaign, doing everything from legal research to fetching food and
laundry for Mr. Bush's team.
In at least 42 counties, Republican lawyers with ties to the state
party were pressed into service, Mr. Cardenas said. In an
orchestrated daily campaign, state legislators and local elected
officials called radio stations, using airwaves to denounce any
hint of a victory by the Gore forces and to broadcast the party
"talking points" that were sent several times a day by e-mail.
Republican workers in the state's 67 counties, many of whom viewed
this as a personal test of Jeb Bush, moved into the counties that
were at the fulcrum of the dispute, faxing and e-mailing daily
updates about what was taking place on the ground to the
presidential campaign headquarters in Austin.
"As a local chairman, my ability to call on 40, 50, 60 volunteers
in a short period of time, and to have them down there quick to
help out, was quite an asset," said Paul Beding haus, the Florida
Republican Party treasurer and the Pinellas County chairman. "The
Democrats couldn't match that."
In Tallahassee, Katherine Harris, the secretary of state who
served both as the state's chief elections officer and the
co-chairwoman of Mr. Bush's campaign, hired a battery of outside
lawyers to defend her rulings on what, if any, recounts would be
permitted lawyers paid with taxpayers' money.
And finally, Mr. Bush had a fire wall: The State Legislature, a
Republican bedrock, which Mr. Bush's advisers quickly determined
could provide them the last line of protection should that prove
necessary. Mr. Bush's lawyers, in researching the Constitution and
federal election law, came across language that might allow the
Legislature to, in effect, supersede the election and appoint its
own slate of electors. And when the Florida Supreme Court issued
one of a series of rulings that went against Mr. Bush on Nov. 21,
Mr. Baker held a midnight news conference where he very
deliberately noted this power afforded to state legislators. The
Republican leaders got the message and made plans to call a
session.
The Bushes, without question, had their own partisan obstacles to
confront in the state of Florida, including Democrats who
controlled some of the important canvassing boards in South Florida
and a State Supreme Court dominated by justices appointed by
Democratic governors. Mr. Bush benefited from Mr. Gore's legal
miscalculations, in particular, his failure to aggressively pursue
a statewide, rather than selective recount, with uniform standards
for counting ballots.
Finally, and not incidentally, participants at every level of the
effort to defend Mr. Bush from Mr. Gore's onslaught invariably
described their work as a moral crusade that, if aggressive,
crossed no lines and broke no laws as it sought to halt what many
described as an illicit bid for power by Mr. Gore.
"We were fighting for our lives, and we were fighting for a
righteous cause," said Marjorie Kincaid, the Republican chairwoman
in Hillsborough County.
Democrats these days speak with a certain respectful awe about the
persistence, ferocity and scope of the Republican Party's
mobilization, citing, for example, how local party workers at one
point staked out virtually every court clerk's office to act as an
early warning system for surprise motions or orders.
"The Bush strategy was fight everything everywhere all the time,"
said John D.C. Newton, a Tallahassee lawyer who worked on Mr.
Gore's legal team here. "There were deadlines, and they were short,
and as long as they kept fighting, the official record said they
were ahead."
Mr. Baker and his team of lawyers arrived within 48 hours after
the polls had closed, plunging immediately into a tumultuous and
anxious environment. The Texas governor's lead over Mr. Gore had
dropped to 327 votes as the state's 67 counties conducted a
mandatory post-election machine recount. And Mr. Gore had quickly
moved to seize the political advantage, pressing for a more
thorough count of the votes.
"There was great concern that we were behind the eight ball on the
P.R. kind of thing," said Mr. Bedinghaus, the state party
treasurer. "We got a lot of calls locally, saying: `You guys are
rolling over. Why aren't you out there?' "
Mr. Baker and his aides moved into the state party headquarters,
which is named after the first president named Bush, and seized on
the goal that would govern their actions in the courts and the
political arena: To block a recount. The overriding concern, one
senior Bush aide said, was that any tally putting Mr. Gore even
fleetingly in the lead, especially since the vice president was
carrying the popular vote nationwide, would be politically
devastating for Mr. Bush.
From the start, Mr. Bush's advisers kept an eye on the clock,
appreciating the extent to which legal deadlines played to their
benefit, and the advantage of exploiting opportunities to slow down
the proceedings.
And they swiftly decided to aggressively present to the nation
and, not incidentally, to federal and state judges who were
watching the counts on television, an image of Florida in chaos.
They did that not only by alerting reporters to genuine episodes of
discord, but also by organizing their own demonstrations, then
complaining about the chaos that resulted. These images underscored
Mr. Baker's warnings, in his televised appearances, that the nation
was growing alarmed at the spectacle in Florida.
Republican "observers" were dispatched in teams to disputed
counties, told to aggressively monitor the counts and to steer the
news media to episodes where there was evidence of disagreement.
Party officials directed this effort with two daily conference
calls, at 7 a.m. and 10 p.m.
The Bush campaign arranged three-hour election law seminars in
Tampa, to instruct Florida Republicans and others who came from out
of state on the intricacies of the state's election law and open
meetings law, including detailed instructions on how to challenge a
ballot.
State Republicans handed out disposable cameras to document
episodes of questionable vote counting, and even "evidence bags" to
gather disputed chads. At times, those props served to encourage a
carnival atmosphere.
Mr. Bush's ability to marshal these forces was in no small part a
tribute to the strength the Republican Party in Florida enjoys with
his brother in power. It also reflects the changing political
demographics of this state where, like in much of the rest of the
South, the Democratic Party is in decline. And Democrats here do
not have the advantage of a strong labor movement that might
otherwise have provided Mr. Gore with the troops needed to counter
the Republicans.
The loyalty to Mr. Bush in the state that elected his brother is,
even Democrats say, much more intense than that shown toward Mr.
Gore. "We'd call people all night to have them there the next day
and nobody got mad that we woke them up or anything," said Ms.
Kincaid, the Hillsborough County Republican chairwoman.
As secretary of state, Ms. Harris was in a position to use her
broad discretion over the conduct of state elections to shape the
outcome of the race.
Ms. Harris promised that she would carry out her duties in a
neutral fashion. To emphasize the point, she retained Steel, Hector
& Davis, a major Tallahassee law firm traditionally associated with
prominent Florida Democrats.
Joseph P. Klock Jr., managing partner of the firm, said in a
interview this week that Ms. Harris remained true to her neutrality
pledge. "Some clients," Mr. Klock said, "will tell you, `This is
where I want to go, take me there.' She did not do that once. She
said, `Show me the law.' "
Over the 36 days it took to settle the Florida election, Ms.
Harris made a series of crucial decisions, and each one, without
exception, helped Mr. Bush and hurt Mr. Gore. She told county
canvassing boards they lacked the discretion to conduct manual
recounts recounts Mr. Gore desperately wanted. She enforced
strict counting deadlines, just as Mr. Bush wanted, and then,
contradicting an earlier directive from her office, she advised
counties to apply a liberal standard for counting absentee ballots,
a move that helped Mr. Bush pick up hundreds of critical votes.
"She was clearly trying to get as many of these votes in as she
could, whether or not they met the criteria, and so was the Bush
campaign and the Republican Party," said Bob Rackleff, a Democrat
on the Leon County canvassing board.
In courtrooms across the state, her formidable team of lawyers
relentlessly opposed the Gore campaign at every step. Besides her
own legal staff, Mr. Klock's firm placed 29 lawyers and 11
paralegals at Ms. Harris's disposal.
These lawyers, billing Florida's taxpayers $175 an hour, pulled
out all the stops, routinely clocking 16-hour days, sometimes
working in shifts to crank out briefs 24 hours a day, sometimes
sleeping on conference tables. They rented a private plane to fly
to Washington for arguments in the United States Supreme Court. So
far, Mr. Klock's firm has submitted bills for $627,280 in legal
work and $54,986 in expenses.
No matter the courtroom, the Gore legal team, as high-powered as
it was with David Boies, the man who took on Microsoft, as its
leader, faced a potent tag team of private Bush lawyers and public
Harris lawyers. The Harris and Bush lawyers, reinforcing each
other's arguments, eating up precious court time, each focused on
the single, shared goal of preventing recounts.
"The most harmful thing was the stops and starts caused by the
elections decisions from Harris's office," said Mr. Newton, the
Gore lawyer. "There were too many days when nobody counted, and in
those early days, every little bump hurt. We'd get past one hurdle,
then face another, and another, and another. Every time we turned
around there was another obstacle."
Mr. Richard, the senior lawyer for the Bush campaign in Florida,
drew a blank when asked to cite a single argument or action by Ms.
Harris that hurt Mr. Bush. There was, he said after a pause,
perhaps one minor argument by the Harris lawyers that displeased
Bush lawyers. "I can't remember what it was."
Mr. Richard said the Bush campaign cautioned that the legal team
should keep a careful distance from Ms. Harris, partly to avoid
accusations of improper coordination. But mainly, he said, the Bush
team worried that efforts to influence her might backfire. "They
didn't want to offend her," he said.
Mr. Klock recalled things differently, saying that Ms. Harris was
under substantial pressure from the Bush team.
"The campaign people wanted to be able to communicate with her,"
he said.
And while Ms. Harris first barred him and his firm from having
contact with the Bush campaign, she later authorized cooperation
"on limited matters," Mr. Klock said. As a result, the leading
Harris and Bush lawyers had several strategic conversations, he
recalled.
The cooperation included routine legal housekeeping matters, like
coordinating witness depositions, and involved sharing some legal
strategy, Mr. Klock said. The Harris lawyers, for example, were
given advance word on which witnesses the Bush campaign planned to
call in one crucial hearing. In turn, the Harris team told the Bush
lawyers which issues would be argued before the United States
Supreme Court.
Mr. Klock said there was nothing untoward about this cooperation,
calling it a common practice for litigants who share the same basic
legal stance in a case. But he also said that when the Harris
lawyers did something that displeased the Bush campaign, they might
hear about it. His lawyers would get wind that major state party
figures were calling, upset at any indication that Ms. Harris was
not sticking the Republican line. "Anything that was inconsistent
with that, they didn't want to see," Mr. Klock said.
Mr. Klock said he tried to convey neutrality. "We don't have a
horse in this race," he would tell judges and reporters alike. The
courts did not quite agree. The Florida Supreme Court, for example,
rejected his request for the secretary of state to be given a
separate allotment for oral arguments. The justices said his time
would have to come off the Republican clock.
At times, partisan emotions seeped into Ms. Harris's office. She
was angered by Democratic attacks, and she drew comfort from
sympathy calls from her prominent Republican friends. Indeed, the
Republican loyalists in her office initially viewed with suspicion
the advice from Mr. Klock and the other Democratic lawyers. "In the
beginning we had the sense we were in the enemy camp," said Mr.
Klock, who, despite his party affiliation, is also a friend of Jeb
Bush and several of his major donors. "Everyone was nice," he said,
"but there's nice, and then nice."
From the beginning, Mr. Ginsberg, the Bush campaign counsel, said,
the Republicans were seeking only to guard against abuses in a
state where, he argued, there were no uniform rules on how to count
a ballot and where Democrats were pushing for standards that would
favor Mr. Gore.
That said, the effect was to slow the count and in many cases stop
it. David Leahy, the nonpartisan election supervisor in Miami-Dade
County, said his board was barraged with "objections and challenges
and arguments," the vast majority brought by Republicans.
In Broward County, the head of the canvassing board, Judge Robert
W. Lee, said: "Suddenly, I would get an envelope stuffed with 50
challenged ballots, and when I looked at them, almost all of them
had been plainly marked. This just wasn't a good- faith effort to
count votes.
"The first time I asked one of the Republican volunteers to
explain to me what he was doing, and he told me he didn't have to
say anything to me. I had a deputy remove him from the building. I
wasn't going to tolerate delays."
Indeed, Mr. Bush's supporters were, by their own account, tireless
in coming up with ways, they said, to block the unfair counting of
votes. In Broward, they complained that chewing gum could be used
to surreptitiously remove chads from questionable ballots.
The executive director of the New York Republican State Committee,
J. Brendan Quinn, one of hundreds of Republicans who were flown in
from around the country, said he saw a counter "eating the chads
off the table" and shouted out his objection.
More subtle forces were employed by the Republicans as well. State
party leaders said they recruited Republican celebrities, like Bob
Dole, Gov. Christie Whitman of New Jersey and Gov. George E. Pataki
of New York, to increase pressure on counting officials.
Charles Lichtman, a Democratic lawyer, said that when Gov. John
Engler of Michigan attended a Broward County meeting, he spent an
hour staring directly at the lone Republican on that canvassing
board, Robert Rosenberg, a county judge, while Bob Dole, the former
Republican candidate for president, stood over him. "They were
really glaring at him," said Mr. Lichtman. "I think they wanted to
make sure that on close calls, Judge Rosenberg would side with
them."
Judge Rosenberg declined a request for an interview.
In Orange County, the state Republican chairman, Lew Oliver, used
out-of-towners to act as the bad cops toward his own canvassing
board.
"They were colleagues and friends and two circuit court judges,
and I knew better than to go up against them," Mr. Oliver said of
the board. When firmer measures were needed, "I traded my position
for someone from out-of-town to be bad cop," Mr. Oliver said. "And
they'd be threatened with being thrown out of the room."
In many ways, all the forces of mobilization converged in Miami,
on the day before Thanksgiving, when the Miami-Dade canvassing
board abruptly shut down its manual count, in the very county where
Mr. Gore's advisers believed he could win the election. The extent
of Republican organization was on display here. Two Republican
members of Congress had gone on the radio urging listeners to head
for the county government center and join the protest. A
recreational vehicle, turned up by Mr. Bush's campaign, was set up
outside to provide a stream of fresh T-shirts and placards to the
hundreds of demonstrators who chanted and yelled in the very room
where the votes were being counted.
The canvassing board headed upstairs to perform the manual
recount. Even from there, Mr. Leahy said, he could hear the shouts
and the pounding on the doors and windows below. When the board
returned downstairs, Mr. Leahy noted that many of the demonstrators
were the same Republicans who had been methodically filing ballot
protests over the previous two days.
Mr. Leahy said he was not swayed by the tumult but instead was
weary by a realization that it would be impossible to count the
disputed ballots in time for a deadline set by the court. The board
ended the counting, a moment as much as the United Supreme Court
decision that would come two weeks later that Mr. Gore's
supporters later said marked the real end of his campaign for the
White House.
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