The Nine [88]
The legal basis for Bush’s position was incidental and rather weak. The principal argument concerned the obscure provision of Article II of the Constitution that provides that each state shall choose electors “in such manner as the legislature thereof may direct.” The Republicans said that it was now the Florida court—and not the legislature—that was “directing” how Florida chose the winner of the state’s electoral votes. The sole authority for this claim was a nearly incomprehensible opinion of the Court from 1892. (The Florida court had disposed of this Article II argument by saying that it was simply doing what courts always do—interpreting Florida election law, not making it.) Almost as a throwaway, the Bush team added another claim—that the recounts violated the Equal Protection Clause of the Fourteenth Amendment. Their casual attention to this argument—just three pages in a forty-two-page brief—was understandable. The Supreme Court, in granting cert in the Palm Beach case, had thought the equal protection argument was so weak that it refused even to hear argument on the issue.
Fundamentally, though, the Republicans’ appeal to the Court, and especially to O’Connor, was more political than legal. The gist was that a court with a clear Democratic agenda was throwing the election into chaos by making up rules. The Florida Supreme Court’s decision had been styled Gore v. Harris. But the lawyers in Olson’s office changed the caption to the one that would be known to history: Bush v. Gore. The brief arrived at the clerk’s office of the Supreme Court about five hours after the Florida court’s ruling—that is, at 9:18 p.m. on Friday, December 8.
Meanwhile, a little-known trial judge in Tallahassee was disproving the Republican predictions of chaos and disorder in the recount. Just hours after the Florida Supreme Court had ruled, Judge Terry Lewis had called the parties together to work out the mechanics of how the 60,000 undervotes would be counted around the state. (Events were moving so fast that the only available court reporter could not make it into Lewis’s court, and so he monitored the hearing from home, listening to the broadcast on C-Span.)
Judge Lewis was as competent a local judge as his colleague Judge Sauls was inept. In Lewis’s courtroom, Phil Beck, a renowned Chicago trial lawyer representing Bush, zeroed in on a weakness in the Florida Supreme Court opinion. That court had not laid out a single standard for the counties to use in determining whether a ballot should be included or not. Okay, Lewis asked, so what should the standard be? Beck said there couldn’t be a single standard, because that would be changing the rules in the middle of the game. The Bush position was a perfect circle. There must be a standard, but there was no way there could be a standard.
Undeterred, Lewis came up with a plan. Shortly before midnight on Friday night, Lewis said that vote counting would commence in the Leon County public library on Saturday morning at eight. (Many of the ballots had already been transferred to Tallahassee.) All other counties were to send him a plan by noon. All counting was to be completed in a little more than a day, by two on Sunday afternoon, December 10. Lewis would remain in his office throughout the weekend to settle any disputes.
By dawn on Saturday, something remarkable was occurring. Working through the night, both the Gore and Bush campaigns had assembled and sent teams to each of the state’s counties to monitor the vote counting. Across the state so many judges volunteered that Lewis was able to use them to replace all the county workers who had been planning to supervise the counting. At 9:51 a.m., the chief judge administered an oath to the vote counters in the Tallahassee library. At 10:07 a.m., the