Full Court Press

With a thin smile and a flourish of her blue enamel fountain pen, Katherine Harris signed the bound, sealed documents before her and turned to the microphone. There was a hush in the ash-paneled cabinet room of the Florida capitol in Tallahassee as she uttered words that George W. Bush had yearned to hear since election night--and that Al Gore and his allies immediately insisted meant absolutely nothing. After three weeks and three recounts, the Florida secretary of State declared Bush "the winner of Florida's 25 electoral votes"--and thus, at least in Republican eyes, the next president of the United States. The totals she announced--and Democrats denounced--showed Bush winning 2,912,790 Florida votes, Gore 2,912,253. For Bush, it added up to an un-Texas-size victory margin of 537.

But Bush was going to take it, gingerly, quickly, thankfully. Looking tense before the cameras on Sunday night, the governor praised Gore in brotherly tones and said that he would resume transition planning. He named his running mate, Dick Cheney, to head the project and asked the Clinton administration to help him open a transition office. He called on Gore not to contest the election results. "I respectfully ask him to reconsider," said Bush. "It's not the best route for America."

The question was whether most Americans would agree. Early polls had shown that voters had considerable patience on the matter, and were willing to let the counts and recounts continue. Yet they had also expressed impatience at the idea that a presidential election would end up in a legal swearing match. But Democrats pointed out that the U.S. Supreme Court had agreed to hear the case (ironically, at Bush's request) and that the high court was no mere bunch of lawyers.

Urgently, perhaps even a bit desperately, Gore and the Democrats strove to portray themselves as disinterested proponents of the American democratic process. Gore planned to address the nation on Monday. In the meantime he sent out running mate Joe Lieberman to vow a fight to the finish. Nothing less than "the integrity of our self-government" was at stake, Lieberman said, because many Florida votes were "unjustifiably... cast aside."

At first, and as usual, the Devil was in the details--that is, the numbers. Because they wanted to declare victory, the Bush campaign stifled its anger at what aides saw as the Democrats' manipulation and legerdemain. Using a rather lenient standard for assessing "dimpled chads," for example, the Democrat-dominated Broward County canvassing board had given Gore a net gain of a relatively whopping 567 votes.

But while the GOP kept quiet, Gore's aides immediately came forth with their own tally of obvious votes not included in Harris's tabulation: 157 net Gore votes already counted in Miami-Dade; 180 votes from Palm Beach County that Harris refused to accept because they arrived too late by fax at her office in Tallahassee; and, most important, 10,700 "undervote" ballots in Miami-Dade that had never been counted at all. "The point is, we got the majority of the vote in Florida," said Gore legal adviser Ron Klain. "The last time I read the definition of 'democracy,' I thought it means we won."

Gore war-gamed the legal counterattack from the dining room table of the vice presidential mansion. The immediate concern was the precise shape of the first legal weapon at his disposal: a lawsuit that would formally contest the results Harris had just certified. Gore spent the better part of Sunday afternoon monitoring returns--and devising legal strategy through a long conference call with his team in Tallahassee. As usual, Gore dove headfirst into the details, and as usual, Gore himself made the call.

At least initially, he decided, his team would focus on three issues: the failure of Miami-Dade County to conduct a hand recount, especially of undervote ballots that might contain indications of a presidential preference; the unwillingness of Palm Beach County to use a more lenient standard for counting "dimpled" ballots; and the decision of Nassau County to summarily revert to its first election-night count, which gave Bush 52 more votes. Late Sunday night Gore's team added another complaint: that Harris had unfairly refused to grant Palm Beach two extra hours to file its hand-recount results.

And so, despite Bush's insistence to the contrary, it seemed clear that the Overtime Election of 2000 wasn't quite over. This is an Election By Lawsuit--the most heavily lawyered political contest in American history. Four centuries ago an obscure Shakespeare character was made to utter a famous idea: "The first thing we do, let's kill all the lawyers." It's way too late. They are everywhere, influencing our society--and, increasingly, our politics. Watergate, a case a young Yale Law School grad named Hillary Rodham worked on, first blurred the line between politics and law. Her husband's impeachment and trial nearly erased it last year.

Election 2000 takes the process another step: from the Oval Office and the chambers of Congress into the voting booth itself. For now, precinct arithmetic may mean less than legal erudition, the actual "count" less than what the judges say it does. That could mean more confusion--not less--and more vitriol. On the other hand, the U.S. Supreme Court remains one of the most trusted institutions in the land, and its involvement raised the hope for a clean denoument to the post-election drama.

For a time--a naive time, it turned out--the theory in Florida was simple: that the count, delayed by a court order, would be the count. The search for an indisputable outcome was supposed to end last Sunday, with the final certification of the Florida results by Harris and the state canvassing board. The last moments of the Florida tally produced an antic panorama worthy of a Boca-based Bosch: street demonstrators waving signs, phalanxes of congressmen hurling accusations at TV cameras and bleary-eyed board members holding flimsy ballots up to the light. In Broward County, GOP canvasser Robert Rosenberg became a celebrity--at least among cable-news junkies--for his cross-eyed bank examiner's stare and migraine-style knitted brow. In Palm Beach County, crowds hoisted mock campaign signs for the Sore-Loserman ticket.

As the 5 p.m. deadline approached, the boards in Broward and Palm Beach arduously examined disputed ballots for hints of "voter intent." In heavily Democratic Broward, Gore made steady gains. It was slower going in Palm, where strict standards for counting the "dimpled chads" on presidential lines produced few new net votes for Gore. Meanwhile, "new" votes materialized on both sides of the ledger. GOP-dominated counties with heavy military populations re-examined their counts, and managed to find 129 new absentee votes for Bush by Sunday. Another Republican-leaning county reverted to its original election-night count, giving Bush 52 more votes. On Saturday officials in Broward discovered 500 additional absentee ballots--many of them, the GOP feared, from Jewish Democrats residing in Israel. After much wrangling, those votes were counted--and Gore emerged with a net gain in Broward.

But the Sunday bottom line didn't lead to a real conclusion. It led instead to a bottomless pit of litigation. Three weeks past Election Day, the unsettled--and unsettling--Bush-Gore Legal War is weakening the legitimacy of the combatants themselves, and now threatens to wreck the castle of politics one of them will eventually occupy. The candidates' own rhetoric grew abrasive. For extending deadlines and allowing hand recounts, Bush accused the Florida Supreme Court of trying to "usurp" the legislature's power. Reacting to pro-Bush demonstrators in Miami, Gore sent Lieberman forth to castigate Republican attempts at coup-style "intimidation."

Allies were harsher still. Republicans dispatched famous vets--former senator Bob Dole chief among them--to accuse the Gore contingent of unpatriotic contempt for ballots mailed in by overseas military forces. Democrats deployed black leaders--the Rev. Jesse Jackson chief among them--to accuse Republicans of perpetrating wholesale Voting Rights Act violations on Election Day. He told NEWSWEEK he'd spoken to President Clinton on the matter--and the president had promised to examine the allegations. Meanwhile, up in Washington and across the country, voters on both sides, already sharply divided, dug deep trenches for the partisan warfare to come. "There's been no adult supervision in any of this," lamented Sen. John Kerry of Massachusetts, "and what we have is a real mess."

Who's in the clean-up crew? The Florida courts, to begin with, and later on the U.S. Supreme Court. It also remained possible that the Florida Legislature would get into the act and, in the most dramatic endgame of all, Congress. Here are the many battlefields, and the skirmishes that will--or may--be going on in each:

FLORIDA COURTS. Legally, the election ended Sunday night. Under Florida law, a second, so-called contest phase is now underway, in which the courts review complaints about how the election was conducted. As far as both sides are concerned, this contest phase had begun--whether or not Harris officially certified the results Sunday night. "We're not going to wait for her to certify," said field general Klain. "We want to get the legal action going." The Bush camp wanted her to certify quickly, but for an entirely different reason. It wanted to proclaim a victory, however shaky and open it is to later legal challenge.

The Democrats, in any event, had been outmaneuvered--at least so far--on one of the trickiest political battlefields in America. Like political snowbirds, Democratic operatives from Boston had journeyed south. But the Kennedy-Irish operatives were bewildered by the salsa rhythms of Miami. "There's something fishy going on here," said one. But for the life of him he didn't know what it was. To fight back in Miami, NEWSWEEK learned, the Gore campaign was considering a federal lawsuit to supplement the filings in Tallahassee. The additional action, which technically would have to be brought by voters in Miami-Dade, would allege that the board had discriminated against black and Hispanic voters--and thus had violated the Voting Rights Act--by calling a halt to its countywide recount.

U.S. SUPREME COURT. While Gore prepared to lay legal siege in Florida, the Bush team focused on the U.S. Supreme Court in Washington. The justices agreed to Bush's request to take the case, and will focus on very narrow--but crucial--questions: Did the Florida Supreme Court violate the U.S. Constitution and federal law? Since both require that rules in the presidential contest be set before Election Day, did the Florida justices rewrite the rules afterward? Even after winning the certification on Sunday, Bush is expected to maintain the case. Why? Because Florida courts might still rule in favor of Gore on the contest, and Bush would then need the high court to invalidate all the past, and future, Florida hand-counts. Conversely, if Gore loses in Florida, the high court may be his last best hope.

FLORIDA LEGISLATURE. They're not just trash-talking, they're serious. It can be argued that, under the U.S. Constitution, Florida lawmakers have the power to appoint the electors on their own if the election results don't give them any guidance. Republicans dominate both chambers of the legislature in Tallahassee. Both Speaker of the House Tom Feeney and House Majority Leader Mike Fasano have indicated that the GOP would consider appointing the Bush slate if the election results are still tied up in court. "We could meet as early as this week," Fasano said. It would be a brazen political move--and the Gore team immediately wheeled out the state's most prominent Democrats to denounce it. Bush would live a "failed presidency," said Sen. Bob Graham, if he won as the result of an "overtly transparent political deal."

CONGRESS. This may be the true court of last resort. The deadline for officially reporting slates of electors to the Congress is Dec. 18, and the Senate and House will meet in joint session to count the ballots next Jan. 6. If Florida hasn't officially reported its 25 electoral votes, it will be up to Congress (at least at first) to read the Constitution. The document says that the president is the one who wins "a majority of the whole number of Electors appointed." Does the "whole" include Florida or not? If it doesn't, then it would take only 257 electoral votes to fashion a majority--and Gore would win. If it takes 270, then neither would have a majority and the election would be decided by the House, with each state delegation having a single vote. Since Republicans control 28 House delegations--a clear majority--Bush would presumably win.

One further scenario. It takes only one senator and one House member to challenge the validity of electoral votes from any state. If there is a challenge to Florida's slate, the chambers would meet separately and it would take a majority vote to rule on the challenge. The new Senate, when it meets, will be divided 50-50. But the old vice president will, under the rules, still be the presiding officer. So if there is a tie in the Senate on an Electoral College vote, Al Gore himself would cast the tie-breaking vote. He would, from all indications, vote for himself.