Shootout In The Sun

The blow was hard-- and, some would say, low. Last Saturday the Bush campaign trotted out the governor of Montana, the normally mild-mannered Marc Racicot, to make an incendiary charge. "Last night we learned how far the vice president's campaign will go to win this election," Racicot said. "The vice president's lawyers have gone to war in my judgment against the men and women who serve in our armed forces." The Bushies accused the Democrats of running a dirty campaign to disallow the absentee ballots of soldiers and sailors stationed abroad. Chiming in was Gen. Norman Schwarzkopf, the hero of the gulf war, who had just returned from a hunting trip with his old commander in chief, former president George Bush. "It is a very sad day," said the general, when soldiers facing "danger on a daily basis" cannot vote because of some "technicality."

Was the latest offensive clever--or desperate? Ever since the election, the Bush forces had seemed outgunned and outsmarted by the Gore campaign in the war for Florida's decisive 25 electoral votes. On Friday, Bush appeared to be losing the legal and PR battle in Florida. The state Supreme Court blocked the pro-Bush secretary of State, Katherine Harris, from certifying the votes that would have awarded Bush victory. A U.S. court of appeals denied a Bush motion challenging the hand recount as unconstitutional. Dade County, with more Democratic than Republican votes, decided to begin its own manual recount. And in Broward County, a local judge gave election officials more leeway in counting votes that were likely to favor Gore. The vice president's flying squad of superlawyers--including Microsoft-slayer David Boies and Harvard Law's media-friendly constitutionalist Laurence Tribe--were everywhere, filing papers and talking fast. Now, by wrapping their cause in the flag, Bush's surrogates escalated a strange struggle that was growing at once more intense and more bizarre.

In some ways, the Bush blast was an eerie replay of the governor's primary campaign. All through the fall of 1999, Bush seemed to be sleepwalking toward the GOP nomination, confidently predicting victory but doing little to earn it. Surprised by John McCain in New Hampshire, Bush woke up and waged a bitter, low-road campaign in South Carolina. Last weekend's counterattack on Gore had some of the feel of Bush's ferocious assault on McCain--an all-out attack, usually through surrogates, on the Vietnam War hero's integrity. It was an interesting coincidence that the same behind-the-scenes operator who ran Bush's campaign in South Carolina--Warren Tompkins, a disciple of the late GOP hit man Lee Atwater--was back on the scene. Tompkins was stationed in Tallahassee last week, helping to mount the counterattack against the Democrats for disenfranchising the military.

Until last weekend, it was the Gore campaign that seemed to be playing harder and shrewder. Operating out of a small, unprepossessing law office in Tallahassee, fitted just last week with high-speed T-1 lines, Gore's lawyers were busily trying to do what they do best, manipulate the law. Breakfasting on Krispy Kreme doughnuts and doing their own typing and Xeroxing, these expert hired guns were trying to extract a Gore victory from the bewildering chaos of Florida's anarchic election system. In one sense, the Democrats were playing on their own turf: the Party of Trial Lawyers is expert at filing lawsuits and winning them. In the down-and-dirty struggle for the PR high ground, the Democrats seemed to be taking their cue from Al Gore himself. Be relentless. Sound moralistic (while acting partisan). Never let up. By contrast, Governor Bush had seemed oddly listless, cocooned on his Texas ranch. But the GOP candidate showed in the nomination fight and the general election that he has a way of drifting along--and then suddenly, back to the wall, lashing out.

Would it ever end? By Saturday night, with the machine vote tally completed and the counting of absentee ballots from overseas still in turmoil, Bush led Gore by 930 votes. The Gore forces were hoping to gain an edge in the days ahead from the hand recount of some 1.5 million votes in counties that went nearly 2-1 for the vice president. The Gore votes were only trickling in during the early going, and some Gore-ites were anxiously beginning to wonder if the new votes would add up to a majority after all. Both sides were pondering stratagems and scenarios that would throw the results into further confusion and, perhaps ultimately, into the House of Representatives.

At some point, one of the candidates would have to play the statesman and call it quits. But for now, the public seemed reasonably patient. In the NEWSWEEK Poll, only 12 percent of Americans characterized the situation in Florida as a "crisis," and two thirds said that the TV networks have made the impasse appear like a bigger crisis than it really is. Americans were interested in the battle for Florida, but more as an entertaining curiosity than a struggle that will deeply affect their lives. For many cable-TV addicts, "Decision 2000" was more gripping than, say, the Elian Gonzalez case but less consuming than the O. J. Simpson trial.

Like any good soap opera, this one was full of colorful characters and behind-the-scenes maneuvering. While both candidates repeatedly intoned that they wished to do what was right for the country, their minions were doing whatever it took to win. Florida has always had a high tolerance for eccentricity and a rich tradition of hardball politics, and both were on vivid display last week. "Weirdness is so ubiquitous here that people just shrug their shoulders and live with it," said journalist Eliot Kleinberg of The Palm Beach Post. "I'm not even surprised this happened here. I expected it to happen in Florida."

The star of the show, Katherine Harris, looked as if she had stepped off the set of "Dynasty." Tastefully bejeweled, usually heavily made up, Harris, 43, had turned a largely ceremonial post--secretary of State--into a kind of roving cultural ambassadorship. The granddaughter of a citrus bar- on, she once said she wanted to transform Florida into the "Hong Kong of Latin America." Criticized in the local press for junketing (she spent more than $100,000 on travel her first two years on the job), Harris is known for her ambition and toughness. She was "passionately interested," she said, in a real ambassadorship--in a new Bush administration. The Democrats tried to make a mockery of her as a Bush flunky. Reporters received a three-page dossier on her background, pointing out that she was Bush-Cheney co-chairman in Florida and had even trudged through the snows of New Hampshire campaigning for Bush. Gore spokesman Chris Lehane called her a "hack" and "commissar." Harvard Law professor Alan Dershowitz, one of the battery of Democratic lawyers who descended on Florida, called her a "crook," and former Clinton aide Paul Begala said she looked like "Cruella De Vil coming to steal the puppies."

Harris presented herself as a lone but resolute figure caught in the vortex. "She was acutely aware of the historical ramifications of her decision," said an adviser. Harris said to an aide: "Whatever I do, I'm going to get hammered." She let it be known that she had at no time spoken with her boss, Gov. Jeb Bush, who has recused himself. When the time came to ponder whether to allow the manual recount to go forward or exercise her "discretion" under the law to certify the final vote, she cleared her office--overflowing with flowers and bouquets from admirers and supporters--of all aides and hangers-on. She needed to be alone, she said. When her advisers returned, however, they included a powerful local lawyer-lobbyist with unusually close ties to Jeb Bush: J. M. (Mac) Stipanovich, also known as Mac the Knife. After last year's session of the state legislature, Stipanovich, who represents Big Sugar, among other interests, was overheard telling Jeb Bush, "I got everything. I don't know what the poor people got. But the rich people are happy, and I'm ready to go home." One of Harris's lawyers, Joe Klock, confirmed to NEWSWEEK that Stipanovich was advising Harris as an "old family friend." (Stipanovich refused to comment.)

The Republicans weren't the only ones with apparent conflicts of interest. Even as the Democrats were complaining about Harris's serving as a front woman for Bush, the state's Democratic Attorney General Bob Butterworth--the state chairman of the Gore campaign--was using his official position to advance the Gore cause. Or so the Republicans charged. When a state official working for Harris ruled that local election boards had no legal authority to recount votes by hand, Butterworth countered with a memo insisting that they did. A Volusia County judge, Michael McDermott, told NEWSWEEK that he challenged the attorney general--who was calling the Volusia County election board by speakerphone--about his role. "Mr. Butterworth," asked Judge McDermott, "in what capacity are you calling us?" Butterworth at first replied, "As the attorney general of Florida," prompting McDermott to point out that the A.G. was also "the state campaign chairman for Al Gore." According to McDermott, Butterworth replied, "Well, I was, but that's over." Recalled McDermott: "I almost laughed when he said that." At McDermott's insistence, Butterworth got off the conference call. "You could hear the door slamming," recalled the judge.

There were a few individuals who seemed to rise above the partisan bickering. In Palm Beach County, Judge Jorge Labarga found himself confronted with one of the most maddening issues of the vote recount. On many of the ballots, the chad had not been punched all the way through the hole, or even torn, but merely indented. Should such a "dimpled" or "pregnant" chad be counted as a vote? If Labarga said yes, he would be boosting Al Gore, who stood to gather more votes in Democratic Palm Beach. Labarga had raised $100,000 for Jeb Bush in 1994. But after bringing order to a chaotic courtroom ("Did anybody in Florida not sue in this case?" he good-naturedly inquired from the bench), Labarga decided to allow Palm Beach to count the dimpled ballots. Labarga, whose father had fled Castro's Cuba, later said, "The right to vote to me is as precious as life itself."

The Democrats immediately heralded Labarga as a profile in courage. But his decision underscored the chaotic and at times absurd nature of the vote count that straggled along last week. Left without any new standard, the Republicans argued, the vote counters would have to go through every ballot to determine, chad by chad, the intent of each voter. In neighboring Broward County, on the other hand, officials were counting votes only if the chad had been ripped at two corners, thereby excluding votes that would count in Palm Beach County. Only late in the week did a Broward County judge step in and adopt the more expansive "dimpled chad" standard. Behind "crime scene" police tape in a grim concrete bunker--a hurricane shelter--the Palm Beach vote counters could be seen disputing and arguing. One particularly outspoken commissioner, Carol Roberts, 64, who has a gravelly smoker's voice and a Gore-Lieberman sticker on her car, had announced that she was "willing to go to jail" in defiance of Harris's order to stop counting ballots by hand. "Go, girl!" cried her backers in the noisy crowd outside. All week, a mishmash of riled-up senior citizens, union agitators and even a few white supremacists waving Confederate flags marched and shouted for the cameras. "Dimpled babies, not chads!" read one placard.

The tumult was too overwhelming for Gore campaign spokesman Chris Lehane. When a local radio reporter followed him into a men's room at the Palm Beach airport and thrust a mike in his face as he stood at the urinal, Lehane decided to retreat to Washington. Still, the Democrats seemed to warm more easily to this roiled scene than the Bush campaign. The Democratic machine in Massachusetts parachuted dozens of veteran operatives, from Kennedy aides to the deputy mayor of Boston, into Palm Beach. Denied office space in Republican-run county buildings, they set up shop in a dented, rusted-out Winnebago--"something out of 'The Partridge Family'," joked one--across the street. Ron Klain, the Gore-ites' legal captain, tapped his old professor from Harvard Law, Larry Tribe, to fashion constitutional arguments. The big Democratic catch was David Boies, possibly the best trial lawyer in the country. Dressed in his trademark black knit tie and inexpensive blue suit, the man who successfully sued to break up Microsoft for the Justice Department was racing from court to court and camera to camera last week, spinning and arguing with disarming charm, while rushing out three times a day for his favorite snack, frozen yogurt. Diet magnate Daniel Abraham, the chairman of Slim-Fast and a major Democratic donor, provided his private jet to ferry around the Democrats' legal team.

In her cramped, over-air-conditioned office at Republican National Committee headquarters, Barbara Comstock watched the Gore juggernaut with alarm. During the campaign, Comstock and her team of "opposition researchers" had fed the press a steady stream of e-mails documenting Gore's exaggerations and "lies." More than anyone, Comstock's team had succeeded in establishing Gore's reputation as a truth-stretcher. Comstock's group pestered the Bush campaign to fight harder. But the Austin Powers had always scoffed at the free advice coming from Washington, and seemed a little slow to react to the severity of Gore's challenge in Florida. Not until the Thursday after the election did Bush get his own superlawyer, Theodore Olson, on a plane to Florida. A close friend of Monica Lewinsky prosecutor Ken Starr's, Olson is a hardened veteran of Washington's partisan legal wars. His clients include Ronald Reagan and, briefly, Starr's chief witness in the Whitewater controversy, Judge David Hale. His wife, Barbara, is well known as a fearsome blond right-wing TV pundit. By the time Olson entered the fray, his options were limited. He challenged the manual recount in federal court, but his odds of success were always long: federal courts generally do not like to second-guess state courts on election matters like ballot counts. By midweek, a weary Olson was back on a plane to Washington, to get fresh clothes for the long siege and feed his dogs (one of whom is named Ronald Reagan).

Some local Republican operatives were disheartened. "Of course I'm frustrated. They've outsmarted us," groused Reeve Bright, chief counsel to the Palm Beach County Republican Party. Republicans weren't playing hardball like the Democrats, he complained, and had muffed a chance to pick up votes by failing to demand hand counts in counties with a GOP edge. (The Republicans had missed the deadline of 72 hours after the polls closed.) Bright dismissed the Republicans' legal challenge in federal court as too little, too late. "I was talking to one of our guys up there [in Tallahassee], and he said to me, 'This will muss up their hair.' I said to him, 'Muss up their hair? Are you kidding? They've got blood all over the table here, pal'."

Bright wanted to fight "fire with fire." He had come across evidence that the crusty, tough-talking Carol Roberts, one of the three commissioners on the board overseeing the vote, had been soliciting campaign contributions for the Democratic nominee for the U.S. Senate, Bill Nelson. He had a letter from Roberts to a local businessman stating that she had the "distinct honor" to host a Nelson fund-raiser. Bright was ecstatic: a provision in the local election code appears to bar election overseers from being "active participants" in any election they might have to certify. Bright wanted to go to court to disqualify Roberts. But up in Tallahassee, the GOP legal honchos said no. They didn't want to seem to be taking "the low road," said Bright. He complained that he couldn't even get the Bush campaign on the phone. The Bush lawyers were too busy writing high-minded legal briefs, he said, while the Gore forces were all over Palm Beach. "This is the frickin' ground game right here," said Bright. "They ought to know where the booty is."

How long--and how hard--to fight for the "booty" (the votes) is up to the candidates themselves. According to one top Gore campaign operative, the "hardest of the hard-liners are the two candidates," Gore and Lieberman. The two men, who somewhat ostentatiously took their wives to see the new movie "Men of Honor" last week, seem to be relishing the fight. Gore has set up a war room in the dining room of the vice president's mansion. On Thursday, he came up with a showy gambit to seize the moral high ground. Gore is a close reader of The New York Times editorial page, which has been advocating a statewide recount and a public summit between the two candidates to reassure the nation. Gore decided to go on national TV--right in the middle of the nightly news--and offer a deal: he would drop all lawsuits if Bush agreed to abide by the results of a statewide recount. He called for a good-will meeting with Bush and generally did his best to appear statesmanlike. The offer was an old Gore ploy: propose a reasonable-sounding deal you're sure your opponent will reject. (He had done the same with Bill Bradley during the primaries, suggesting they forgo 30-second ads and debate every week.) When Gore was done, he went back to work, phoning the editorial-page editor of The Miami Herald to personally press his case. (Tom Fiedler was so disbelieving that he had the veep on the line that he almost hung up. Gore had to put Tipper on the line to convince him.)

Down in Texas, Bush seemed to be caught off guard by Gore's offer. He was out at his beloved 1,500-acre ranch and had to drive nearly two hours back into Austin to face the cameras. After saying no to Gore, he got right back into his car and headed out to the ranch. He sleeps better there, his aides say. He and Laura are busily finishing their comfortable but low-key ranch house. According to architect David Heymann, Bush's no-nonsense wife, Laura, had one guiding caution: "Is it pretentious?" Friends said the Bushes have taken a calm "if it's meant to happen..." approach to the waiting game. During a recent interview with NEWSWEEK, Laura explained, "Both of us have a lot of peace about our lives." On election night, when a pool reporter asked Bush how it felt to have his future in the balance, he quickly corrected, "My whole future isn't on the line." Asked the same question about his brother, Jeb Bush reiterated the point. "My brother's life is in good shape," he said.

Was Bush preparing himself for defeat? The appearance was deceiving. The Bush counter-attack came during a brief lull. On Saturday, lawyers stopped wrangling and turned to the most important local contest, the Florida-Florida State football game. Gore campaign chairman Bill Daley had time to go to his son's wedding at Blessed Sacrament Church in Washington (the so-called talking-head parish, because Chris Matthews, Mark Shields and Pat Buchanan occupy the pews). "I got a million cousins coming in," said a weary Daley.

Meanwhile, the Bush campaign was gearing up for an offensive. On Friday, Bush operatives got hold of a five-page letter, drafted by a Gore lawyer, with instructions on how to dispute absentee ballots from the military. Many letters home from military bases lacked postmarks. Most of these ballots were thrown out. The Bushies began to sense Democratic mischief when Duval County, with a large military population serving abroad, was slow to report its absentee ballots. When the Bush vote turned out to be much lower than expected in the morning, the Bushies launched their counterstrike. Governor Racicot, a former Army prosecutor, was chosen precisely because he was normally so amiable. When he re-entered the office at Bush headquarters Saturday afternoon after delivering his blast at the Democrats for disrespecting the armed forces, Bush aides stood and applauded.

What was Bush's role? Candidates are supposed to keep their distance from their more hard-edged surrogates. But Bush and Racicot are good friends, and they had dinner together Friday night. At dinner, it was Racicot who pushed Bush to take the evidence of voting abuses to the public. Bush turned to an aide and asked, "Why isn't he out there?" The Montana governor was said to be in line for a high post in a Bush administration. Racicot has endeared himself to Bush by being loyal--Bush's favorite quality--and by being low-key. Indeed, the TV networks generally avoid Racicot because he's not enough of a flamethrower. That may change: Sunday morning he was scheduled to appear on ABC's "This Week."

The battle was set to rage on this week on a number of fronts, all contentious and all important to the outcome. The Florida Supreme Court agreed to hear arguments on whether Harris abused her "discretion" by trying to cut off the hand counts in the three heavily Democratic counties. Florida's high court is stocked exclusively with Democratic appointees, and it has a reputation for liberal activism, which appeared to favor Gore. The crafty Boies was arguing that the judges are almost sure to approve hand counts. Why else would they be letting the vote go ahead, he asked, if they did not mean for the votes to be counted? But it also seemed possible that the judges wanted to watch the process work before rendering a judgment. If it took too long or seemed too unfair, the judges might have to throw out the manual recount--or, possibly, go the other way and order a statewide recount.

The early indications were that counting the three counties could take weeks, not the six to 10 days originally forecast. The pace was excruciatingly slow. Democratic operatives were accusing the Republicans of intentionally stalling and staging stunts, like getting the Sheriff's Office to sweep up loose chad on the floor to somehow suggest ballot tampering. Reports from Miami-Dade were that the county could take two to four weeks to recount its 654,000 votes. Challenges will abound: last week The Miami Herald reported that 39 convicted felons in Miami-Dade and Broward counties illegally cast absentee ballots. Most of them were Democrats. The newspaper interviewed a 50-year-old woman with a 15-year jail sentence for cocaine dealing who not only voted but served as a poll watcher. The Democrats were accusing Republican state officials of improperly helping absentee voters fill out their ballots, while Bush spokesman Karen Hughes was accusing the Democrats of distorting and sabotaging the vote count. Even if the Florida Supreme Court resolved these questions, the losers could appeal to the United States Supreme Court. While the justices would be reluctant to overrule the state court, they might conceivably step in if they believed a U.S. president had been chosen in a starkly unfair manner. The chaos and slow grinding of the legal gears raised the possibility that Florida would fail to finish by Dec. 18, the date every state's electors must cast their votes in the Electoral College. What if Florida's 25 electors hadn't been chosen? Would the Florida state legislature get into the act? Would the election be thrown to the House of Representatives, a possibility under the U.S. Constitution?

"We'll be lucky if we get this done before Congress convenes in January," said Lloyd Cutler, a lawyer who is known as one of the last Wise Men of the old Washington establishment. "It's like the Abbott and Costello skit--who's on first?" Cutler was already reading the law books to see what happens if the election winds up in Congress, a process no more certain to bring order and fairness than the workings of the Florida county election commissions. Eventually, America will have a new president. He may not have much of a mandate, and some, including foreign friends and foes, may question his legitimacy. But the republic will not fall. In the meantime, Americans were being treated to a heck of a show.

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