Moments after the December 12, 2000, Supreme Court decision that effectively ended the Florida postelection contest and made George W. Bush the nation’s 43d president, Dick Cheney put in a call to Tallahassee to thank his old friend James Baker.
"Jim," said Cheney, "congratulations. Only under your leadership could we have gone from a lead of 1,800 votes to a lead of 150 votes."
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| Illustration by Taylor Jones for the Hoover Digest.
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It was Cheney’s brand of foxhole humor. Tell the guy who ran the winning operation that you know his contribution, but don’t inflate his ego in the process. The lawyers, political strategists, and state GOP leaders packing the Republican headquarters in Tallahassee roared with cheers and laughter. They all knew how easily things could have gone the other way. "This campaign made a number of calls in Florida, none of them inevitable, all of them hotly debated at the time, and, in the end, all of them right," recalled Kenneth Juster, a savvy Washington lawyer who had worked in Florida through nearly the entire 36-day battle. "And Jim Baker was right every time."
Luck was a factor too. Palm Beach County, for example, was as Democratic as Broward County, which gave Gore a pickup of 567 votes in the manual recount, largely by making the "dimpled chad" an instant part of the U.S. political lexicon. Had Palm Beach County adopted a similar standard—and finished its recount on time—Gore might well have seized the popular vote lead. But three principled election officials, led by Judge Charles E. Burton, wouldn’t let that happen. "If the canvassing board in Palm Beach County had been two partisan Democrats, or three partisan Democrats, we’d have been screwed," recalled John Bolton, who was Bush’s lead representative at that recount.
The Gore Battle Plan
Al Gore’s strategy took shape early. He was better prepared than Bush to plunge into the recount battle because the "SWAT" teams of lawyers and political operatives that had mastered the electoral rules of several key states reported directly to his campaign. The first planeload of Gore lawyers and other staff aides to Florida included more than 70 people. By contrast, the focus during the campaign of the Republican National Committee, which had recount responsibility on the Republican side, had been on congressional races. Republicans traveling to Florida to join the battle usually came alone or in groups of twos and threes.
Included on the first Gore flight were Chris Sauter and John Hardin Young, who, along with fellow Democratic strategist Timothy Downs, had coauthored an instruction manual entitled "The Recount Primer." Written to assist Democratic candidates filing or facing recount challenges in the 1994 congressional campaign, the booklet had suddenly assumed new relevance to what could be the coming Gore challenge, and as the jet sped toward Tallahassee, the two authors were clipping, copying, and distributing key sections for the instruction of their colleagues. A sample of the manual’s wisdom: "If a candidate is ahead, the scope of the recount should be as narrow as possible, and the rules and procedures for the recount should be the same as those used election night." But, "If a candidate is behind, the scope should be as broad as possible, and the rules for the recount should be different from those used election night."
Gore immediately designated William Daley, his campaign chairman, and Warren Christopher, the former U.S. secretary of state, as his point men in Florida. The principal elements of their strategy were to
• Establish a moral basis for the Florida blitz by emphasizing the Gore victory in the national popular vote
• Use the confusion over the so-called butterfly ballot in Palm Beach County as the Trojan horse for attempts to overturn the results of the counted vote
• Bid for time with the general public by couching the Gore effort in terms of the "right to vote" versus disenfranchisement
• Demand recounts of "undervotes"—ballots in which no vote for the presidency had been discerned by the tabulating equipment—in counties where hefty Democratic majorities promised even more votes for Gore
• Employ the most flexible counting rules
• Abandon the "count all votes mantra" where the potential payoff for Bush is large, as with predominantly Republican absentee ballots
• Make the liberal, activist Florida Supreme Court the ultimate arbiter of electoral disputes
In contrast to the Gore blitzkrieg, the Bush defensive operation got off to a sluggish start. Ben Ginsberg, chief counsel to the Bush campaign, left for Florida the morning after Election Day, accompanied by only a few staffers. That day, Bush asked former secretary of state James Baker to go to Tallahassee as a counterweight to Christopher. Their first order of business was simply to ride out the automatic machine recount mandated by state law in razor-thin elections. Stunningly, Gore picked up more than 1,400 votes in the recount, including 859 in Palm Beach County and 478 in Pinellas County, closing to a margin of only 300 votes.
Still, with absentee ballots expected to favor Bush by a two-to-one margin, and with Florida legal precedent weighing heavily against a successful challenge to the butterfly ballots, Gore needed another source of votes. On November 9, he formally requested manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, all of which he had won by substantial margins. The obvious purpose was to find a sufficient number of undervoted ballots that could, on visual inspection, be identified as Gore votes, thus reversing the results tabulated by machine.
The Gore recount bid triggered an exchange of legal opinions between Katherine Harris, Florida’s Republican secretary of state, and Florida attorney general Robert A. Butterworth, a Democrat, over the meaning of a state law requiring manual recounts once a preliminary survey of selected precincts shows "an error in vote tabulation" sufficient to change the results of the election. Harris concluded that the term applied only to an error in hardware or software that produced erroneous vote totals, whereas Butterworth maintained that the term included situations where voter intent could be discerned despite the failure to follow voting instructions. That argument would produce prickly exchanges between U.S. Supreme Court justices even in the Court’s final decision.
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| Illustration by Taylor Jones for the Hoover Digest.
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The Bush Battle Plan
The Gore recount demand also stimulated a burst of activity in the GOP’s Tallahassee headquarters. Now Baker and Ginsberg sounded the alarm for top GOP lawyers prepared to do battle on a number of fronts. And as fresh GOP talent poured into Florida from New York, Washington, Texas, and Illinois, Baker and his senior colleagues refined their strategy to
• Claim the votes have been counted, the election is over, and the public interest in "finality" must trump additional recounting
• Immediately bring the federal courts into the picture by moving there to stop the recounts on constitutional grounds of due process and equal protection
• While waiting for judicial relief, wage a "ground war" before the recount canvassing boards to prevent Gore from taking the lead
• Use the constitutionally mandated plenary power of the Florida legislature over presidential election matters, at least as an optional check upon the excesses of the state judiciary
• Try to make the U.S. Supreme Court, with its slender conservative majority, the ultimate arbiter of election issues
Holding the lead was as important to Bush as seizing it quickly was to Gore. Both camps felt that three critical consequences would flow from Gore moving ahead: (1) The media and public opinion would press Bush to abandon the fight because he had already "lost" the national popular vote. (2) It would stop the Republican-dominated state legislature in its tracks, making it all but politically impossible for that body to choose a Bush slate of electors, a difficult gambit even in more fortuitous circumstances. (3) It would make it easier for the Florida Supreme Court to hold for Gore without inviting reversal by the U.S. Supreme Court.
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"One of the Bush lawyers captured some of the early confusion in his diary: ‘Tallahassee is a city where there are small armies of lawyers running around everywhere engaging in pitched battles with one another . . . and those are just the Republicans.’" |
Baker’s decisions usually followed vigorous internal discussion and dissent. For example, colleagues argued against a "premature" test in the federal courts, saying that a loss there could both embolden the Florida Supreme Court and preempt a move by the legislature to appoint a Bush slate. But Baker was certain the case would wind up in the federal courts, so it was best to begin it there.
Baker also rejected suggestions that Bush try to neutralize Gore’s selection of four heavily Democratic counties for recount purposes by requesting recounts in a number of heavily Republican counties. That, he felt, would let Gore define the rules of the game. "I thought we held the high moral ground," Baker later said. "Our position was it’s over. We won. Let’s stop counting. Let’s go home." Not all of Baker’s concerns were quite so lofty. State GOP leaders had warned him against seeking recounts in GOP counties because their surveys were showing that, even in those Republican strongholds, the undervotes seemed to be concentrated in Democratic precincts.
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"‘We saw [the court battle in Palm Beach] as the battle for Stalingrad,’ a Bush lawyer recalled. ‘If we lost here, they would just roll over us.’" |
In contrast to the Gore operation, which placed David Boies at the helm of the legal battles, Baker divided the legal responsibilities among specialists, any one of whom had the talent to be a Boies-like superstar had that been his role. Barry Richard, a Florida election law specialist and a Democrat, played the lead role in much state litigation. Future solicitor general Ted Olson argued the federal court cases.
Baker also understood that the contest period that followed the protest period required special preparation. The protest period involved county-by-county challenges to the accuracy of the vote count and vested great discretion in the individual canvassing boards. The contest period, by contrast, followed state certification of the results and involved a lawsuit by the losing candidate or supporter challenging the validity of the election itself, often on grounds of fraud but also if enough illegal votes were counted or legal votes excluded to possibly change the outcome. Under state law, an election contest can only be litigated in the circuit court for Leon County—site of Tallahassee, the state capital—with direct appeal to the state supreme court. Baker chose Phil Beck of Chicago and Irv Terrel of Houston, two tough trial lawyers, to head his contest litigation team. Daryl Bristow handled the dangerous nuisance trials involving challenges to absentee ballots in Seminole and Martin Counties. Trusted Baker colleagues like George Terwilliger, Bob Zoellick, and Josh Bolten brainstormed the overall strategy. Bobby Burchfield, Mike Madigan, and John Bolton represented Bush in the brutal counting battles in Miami-Dade, Broward, and Palm Beach Counties, respectively. Kirk Van Thyne kept the research flowing and the briefs written.
"This was the biggest group of egos not flexing their egos I’ve ever been associated with," later commented Ben Ginsberg. John Bolton captured some of the early confusion in his diary: "Tallahassee is a city where there are small armies of lawyers running around everywhere engaging in pitched battles with one another . . . and those are just the Republicans."
Things Get Interesting
On November 21, the Florida Supreme Court held that the secretary of state must extend the protest period, allowing the recounts to continue until they began to encroach on the time needed to conduct a full election contest trial in the Leon County Circuit Court. Invoking its "equitable" powers, the court established 5 p.m. on November 26 as the new deadline. Despite obvious weak points in the decision, several in the Bush camp argued that no appeal should be taken. Olson himself estimated that there was only a 30–40 percent chance the U.S. Supreme Court would grant certiorari (i.e., agree to hear an appeal to the case). But Baker again decided to go forward with the petition because he wanted to engage an institution that could turn out to be Bush’s greatest asset. To the surprise of most of the country’s constitutional scholars, the Court granted certiorari.
Broward, its counting rules changing minute to minute and its canvassing board members peering at dimpled chads through magnifying glasses and spectacles, weighed in with a hefty 567-vote pickup for the vice president. Then, things abruptly fell apart for Gore in the last two of his three remaining selected counties. Miami-Dade first decided to count only about 10,750 undervotes and then abandoned that effort, saying it could not meet the new deadline imposed by the Florida Supreme Court. Meanwhile, Palm Beach County, under Judge Burton’s leadership, had established counting standards that excluded most dimpled chads and other errant marks. This system would eventually produce a net Gore increase of only 174 votes, but even with a late round-the-clock effort, the board missed the deadline. "We saw this as the battle for Stalingrad," Bolton later recalled. "If we lost here, they would just roll over us."
On the evening of November 26, Secretary of State Harris certified George W. Bush the winner of the Florida election by 537 votes, the figure representing his 300-vote margin following the machine recount, buttressed by his gain in the overseas absentee balloting, minus Gore’s big gain in Broward County. No recount results from Palm Beach or Miami-Dade were included in the totals.
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"In its December 4 decision to vacate the ruling of the Florida Supreme Court, the U.S. Supreme Court ‘put a very hot round across the bow of the Florida Supreme Court’—a warning not to legislate from the bench." |
The Baker team now faced another dilemma: whether to pursue its appeal of the Florida Supreme Court decision before the U.S. Supreme Court. Several lawyers wondered what could be gained by a "victory" on top of the state certification. Wouldn’t a possible defeat break the momentum and reenergize the Gore forces? Once again, Baker wanted to stay with the U.S. Supreme Court. But he yielded to those who urged that the alternate options be put in a decision memorandum for George W. Bush, who decided to keep the case alive.
On December 4, the U.S. Supreme Court issued a unanimous per curiam (unsigned) decision vacating the Florida judgment and remanding the case for clarification as to whether the Florida justices had fully respected the Florida legislature’s plenary power to establish presidential election rules. On remand, the Florida Supreme Court could, and eventually did, reach the same result, but that was not the point. As George Terwilliger noted, "The Supreme Court has just put a very hot round across the bow of the Florida Supreme Court," a warning not to legislate from the bench.
The Final Acts
Next to surviving the "ground war," the most significant factor in the final Bush victory was his overwhelming win in the contest trial before circuit court Judge Sanders Sauls. Here Boies asked the court to discard Palm Beach County’s stringent counting rules in favor of the more lax Broward County standards in the manual recounts under way in both Palm Beach and Miami-Dade Counties, despite their having missed the revised deadline established by the Florida Supreme Court. Boies also asked that the suspended Miami-Dade recount be completed.
To justify asking the court to take such radical action, Gore produced a grand total of two witnesses. The first offered a hypothetical explanation as to how defects in the voting equipment might have hindered voters seeking to puncture the ballot hole next to the candidate of their choice. Not a single defective machine was placed in evidence. The second expert witness projected a Gore pickup in Miami-Dade that would approximate his percentage pickup in the counting completed before the canvassing board suspension. That the totals to date had been obtained from precincts that had voted for Gore by a three-to-one margin, while the remaining precincts had gone 51–47 percent for Bush, seemed to faze him not at all. Phil Beck devastated the testimony of both men on cross-examination. Later he described them as being of "ridiculously dismal quality."
Advantage: Bush
On December 4, Judge Sauls ruled for Bush on all issues. Because many of his conclusions were reversed by the Florida Supreme Court four days later, it is tempting to gloss over the importance of the contest trial. But by blocking Boies from obtaining an early recount and then winning on the merits in the contest trial, Bush had stopped all vote counting between November 26 and December 4, thereby protecting his slim lead. And by the time the Florida Supreme Court ordered the counting resumed, Gore was backed against the December 12 deadline by which date states must have their electors certified to be certain of avoiding a challenge in Congress. In effect, the Sauls decision left the Florida Supreme Court surrounded on three sides: by Sauls’s own findings of fact, by the deadline, and by the U.S. Supreme Court.
Advantage: Gore
On December 8, the Florida Supreme Court reversed Judge Sauls’s ruling and ordered a statewide recount to be completed within four days. The court did not offer any standards for tallying disputed ballots. The decision came just minutes after Bush had won the Seminole and Martin Counties cases, a moment when Gore’s flickering hopes had appeared all but extinguished. The 4-3 ruling hit the Bush team like a bolt of lightning. "I felt like those Russian sailors on the Kursk [submarine] must have felt," recalled John Bolton. "All you could do was stand by and feel your air run out." An immediate appeal to the U.S. Supreme Court was, of course, required to stop the counting. But while waiting for a ruling, the team had to prepare for yet another "ground war," this time fought across the entire state as the counties moved to implement the state supreme court order to manually recount all votes. Once again the Bush strategy would be to seek the narrowest definition of "legal votes," rejecting ballots with dimpled chads or other ambiguous marks. All-night legal briefings were conducted for the reassembled county representatives. Chartered aircraft rumbled and groaned as they ferried Bush personnel from Tallahassee to nearly every county in Florida. By midmorning, about 450 representatives of the Bush campaign were in place, ready to do battle.
Back at the second circuit court in Tallahassee, Phil Beck and Irv Terrell were trying to convince Judge Terry Lewis—Sauls had recused himself after getting slapped down by the Florida Supreme Court—to impose strict counting standards throughout the state. Lewis refused, saying the state supreme court had twice declined to establish such standards by fiat. He would, however, have the final say with regard to any challenged ballot.
One of the great ironies of this period is that the Bush team was in court urging the only counting rules that could possibly have produced defeat for their candidate. Having skimmed off hundreds of votes in heavily Democratic Broward, Volusia, Palm Beach, and Miami-Dade Counties, Gore was now battling in counties that had gone solidly for Bush. As subsequent newspaper-sponsored audits would show, the more liberal the counting rules, the heftier the Bush plurality.
Game, Set, Match
On December 11, seven U.S. Supreme Court justices found due process and equal protection problems with the Florida Supreme Court decision, though only by a 5-4 vote; the process was brought to a halt in order to meet the December 12 deadline.
The U.S. Supreme Court opinion swiftly came under partisan attack and, to this day, the decision has been used by political opponents of George W. Bush to deny his mandate, if not his legitimacy. But by attacking the intervention of the U.S. Supreme Court, these critics would fall back on the lawless, result-oriented activism of the Florida Supreme Court. It was the state court that
• Strained to interpret voter error as an "error in vote tabulation" sufficient to warrant a recount
• Turned the statutory discretion of the secretary of state to reject recounts not meeting the deadline into a prohibition against rejecting any late recount as long as it would not impede the contest period
• Legislated from the bench new deadline dates
• Failed to adhere to its own deadlines
• Failed to hold counties to any consistent recount standard
• Counted a Gore pickup of 168 votes from Miami-Dade County despite the fact that the canvassing to that point was limited to staunchly Democratic precincts
• Gave inadequate weight to canvassing board determinations made during the protest period
• Set a statistically banal standard for contest period recounts, saying one should be ordered whenever the number of undervotes exceeds the margin between the top two candidates
• Ignored the first U.S. Supreme Court decision until after the second appeal was argued, thereby insulting and angering at least one of the U.S. justices
A tendency to thwart or truncate the sound discretion of the several states hardly remains the most prominent instinct of the current U.S. Supreme Court. But when confronted with a lawless state court frolicking in an enterprise of monumental national significance, the Court found intervention imperative. The tactics of James Baker and his colleagues had preserved the Bush lead while shaping the critical issues for Supreme Court resolution. In the months subsequent to that decision, a civil rights commission would seek to inject a spurious note of unintentional racial discrimination into the results, pro-Gore legal scholars would discover within themselves a long-dormant affinity for states rights, and leading national newspapers would devote thousands of man-hours and column inches to recounts and reanalysis of the Florida vote. None of this would make a dent in the perceived legitimacy of the Bush presidency or in the success Mr. Bush enjoyed in guiding several of his priority programs toward passage by Congress during his first six months in office. This may prove to be the most meaningful tribute of all to the way Baker and his colleagues fought the battle.
