1. James Baker, his tongue darting in the air, first raised the prospect of an end run around the courts by the Florida legislature hours after the state’s supreme court ruled unanimously on November 22 to allow manual recounts in three counties. His leathery face broke out in a smug smile when he said it. After the Florida court ruled a second time in favor of a recount on December 8, Baker invoked the legislature again. Having prophesied the legislative coup, however, Baker was quick to say the Bush team had nothing to do with it.
“I haven’t talked to anybody in the Florida Legislature that I know is in the Florida Legislature,” he said, adding he’d never even met House Speaker Tom Feeney. Assuming that’s true, Baker was practically announcing that Brother Jeb had put the legislature in play. With Feeney’s majority approving the Bush slate the very day that the U.S. Supreme Court weighed its final decision, the First Family of Texas and Florida was making it clear that it was even prepared to circumvent a 7 to 2 Republican court if it didn’t like the ultimate decision.
2. Almost unnoticed in the 24-hour stream of cable punditry, the GOP demanded and got a hand recount in New Mexico after opposing one for weeks in Florida. W. picked up 125 votes on the recount of Roosevelt County, narrowing Gore’s lead to 368.
Incredibly, Mickey Barnett, the GOP national committeeman for New Mexico and a lawyer for the party, wrote a district court judge that there was “of course, no other way to determine the accuracy of this apparent discrepancy, or machine malfunction, other than the board reviewing the votes by hand.”
Barnett got a recount of the undervote, pointing out how unusual it was that 10 percent of the county’s voters did not vote for president. While Roosevelt went for Bush 2 to 1, the GOP did not seek a recount of much larger undervotes in three highly Democratic counties. Barnett said Roosevelt’s undervote for president “defies historical precedent and common sense.”
The only conceivable reason why the GOP cared enough about New Mexico’s five electoral votes as late as December 1 was the fear that if it carried Florida by legislative fiat—in defiance of the courts—it might lose individual electors in other states. New Mexico would have been a cushion against such defections.
3. The “bourgeois riot” celebrated by Wall Street Journal columnist Paul Gigot helped stop the announced manual recount of the 10,750 undervote in Miami-Dade County. Instigated by an order from New York congressman John Sweeney to “shut it down,” dozens of screaming GOP demonstrators pounded on doors and a picture window at elections headquarters. The canvassing board, which had already found a net Al Gore gain of 168 votes, reversed a decision it had made a couple of hours earlier to begin a tally of the undervote.
The mob gang-rushed a local Democrat carrying a blank sample ballot. They threatened that a thousand Cubans were on their way to the headquarters to stop the count. Several people were “trampled, punched or kicked,” according to The New York Times. The canvassing board chair at first conceded that mob pressures played a role in the shutdown—which cost Gore the 168 votes as well—but later reversed his position.
The high success rate in the partial recount triggered a “mandatory” obligation under state law to count the rest of the ballots, but it also triggered a GOP mania to block it. Sweeney, who was coordinating the assault with a local Cuban congressman, branded Dade “ground zero” in the ballot battle and called the attempted count “theft,” though his own representatives were in the room where it was scheduled to begin.
Instead of condemning the Dade tactics, W. himself called the victory party that night to praise them, and Republicans invoked the specter of Jesse Jackson, who’d merely led peaceful protests outside election offices. Unlike Sweeney’s mob, Jackson was, of course, protesting real voter theft—the massive Duval County disenfranchising of black voters—a cause all but ignored by Gore for fear the GOP would turn the Florida fight into a Race Thing, their favorite consensus-building gimmick.
4. Bush’s lawyers, as well as those representing the Florida legislature and Secretary of State Katherine Harris, argued during the protest phase that “there would not be any problem” with having a manual recount once the certification of the election results was complete. They said a challenge for hand recounts was reserved for the contest phase after certification.
“You would be centralizing the factual inquiry in one court in Leon County,” argued Bush lawyer Michael Carvin in a comparison between the disparate protest and focused contest phases. “So you would bring some orderliness to the process, and they would be able to resolve the evidentiary question” of what was a good ballot and what wasn’t.
Of course, when Gore sought recounts in the contest phase, the Bush attorney’s core argument—adopted by Judge N. Sanders Sauls—was that they could not be done unless it was established that local canvassing boards had “abused their discretion” during the protest phase. This catch-22 even included Miami-Dade, which had refused to complete its recount during the protest period.
A mix of just this sort of obfuscation, filibustering delays, and back-of-the-hand dismissals of the Gore and court offers of a full state undervote recount established just how resistant Bush was to any attempt to ferret out a real final count.
Bush’s willingness to champion both sides of any argument started with his campaign’s pre-election attempts to delegitimize a Gore electoral college win, a position discarded when Gore won the popular vote by over 300,000. It was sounded again in the absentee ballot battle when Bush insisted on excusing almost any military voter error even while resisting any effort to count votes—disproportionately cast by the elderly and the poor—marred by punch-card-connected voter error.
5. Antonin Scalia, with two sons on the GOP tab and a chief judgeship in sight, and Clarence Thomas, the GOP’s “Invisible Man,” whose wife was a Bush headhunter, set the tone for a court that stopped the recount clock a few minutes after a heavily Republican Atlanta Appeals Court refused to by an 8 to 4 vote.
As often as Baker and the rest of the Double-speak Team charged Gore with muddying the waters by trying to overturn an election in court, it was Bush who brought the first case, asking the Atlanta Court of Appeals to block manual recounts. Bush called them unconstitutional, even though they are routine in Florida, Texas, and dozens of other states. No court on this long trail—not even the Scalia Gang—agreed with Bush’s core claim.
The Scalia Gang blamed the Florida court for delays in a count that the Gang had brought to a screeching halt itself—for fear that the undervote would put the Wrong Man ahead. Its purported concern for the equal protection of all voters was used to justify the disenfranchising of thousands whose intent was yet to be determined. A deadline in state law became more sacrosanct than the Constitution’s most fundamental guarantee.
Research: Rebecca Center, Rob Chaplick, Jennifer Fagan, and Rob Morlino