Third in a series An appearance-conscious woman of inherited wealth and high social standing, Katherine Harris spoke openly around Tallahassee of her hope that co-chairing George W. Bush's Florida campaign might land her a job in a Bush administration. Instead, she sometimes felt as November progressed, it had landed her in hell.
Within a few days after the election ended in deadlock, Harris had become a virtual prisoner. She ate most meals in her office because she was afraid to venture into public, and when she did, she was shadowed by state bodyguards summoned because of death threats from across the country. She slept fitfully, lying awake most nights to watch television comedians make fun of her appearance. Propped before a flickering set in the wee hours, she rooted for conservative commentator Tucker Carlson on CNN's "The Spin Room."
Harris was the state's chief elections official. Florida's election had ended in a virtual tie. How the tie was broken would determine the presidency. The pressure was incredible.
As a target for Democratic ire, Harris wasn't helped by the fact that she kept making decisions that clearly benefited Bush, narrowly defining the proper conditions for launching manual recounts and insisting on an early deadline for completing the vote tallies. In fighting those decisions, Al Gore suffered crippling delays.
As her chief of staff, Ben McKay, put it: "We knew early on that the attack was going to come our way. Katherine is going to be the big target. Might as well paint a bull's-eye on her because it's coming our way, boys."
For consolation, Harris turned anew to the biblical story of Queen Esther, one of her role models. Esther was the stunningly beautiful Jewish maiden who won the heart of a king and risked her life to save her people. Harris believed that, like Esther, she was endangering herself and her reputation for a good cause.
"If I perish, I perish," Harris would melodramatically tell her staff, until finally, they revolted. "No more Esther stories!" they pleaded.
Harris had an impressive pedigree for Florida politics. Her grandfather was Ben Hill Griffin Jr., citrus king of central Florida, a millionaire 300 times over. And he was more than that -- state legislator, candidate for governor, chairman of the powerful Board of Regents, a counselor to senators and governors and college presidents.
Harris grew up with a taste for four-star hotels, designer clothing, important friends, stature. In 1994, after working as a real estate broker and serving on charitable boards, she won a seat in the state Senate. Four impatient years later, at 41, she challenged the Republican secretary of state. She tried to get the party's blessing to run for U.S. Senate in 2000, but was passed over.
When the recount began, Harris figured the Gore people would make her a target -- the Clinton-Gore administration specialized in that sort of thing, she said. It only strengthened her resolve. "I thought it was bizarre that they thought that character assassination would in any way deter me from following the law," she recalled.
But McKay realized from the outset that he was outgunned. He hadn't gotten around to hiring a press secretary, so he summoned the Republican pros who had worked on Harris's campaign two years earlier, Adam Goodman and Mark Reichelfelder. "Fly your butt up here," he said.
Then he went looking for lawyers.
It was the constant refrain of Florida: More lawyers! They poured in daily from every corner of the country -- associates and senior partners, pols with bar licenses and superlawyers who just liked politics, former clerks to federal judges, appellate judges, justices of the Supreme Court.
McKay signed up Steel Hector & Davis, a well-connected Tallahassee firm. Managing partner Joe Klock became Harris's most prominent public representative, while the daily grind of defending her office fell to a ferocious team of litigators -- mostly women, and mostly Democrats.
McKay thought the firm would give Harris cover from charges of partisanship. Founded by Democrats, it has been home to such Florida luminaries as the young Janet Reno. But as the state became more Republican, so did Steel Hector. Gov. Jeb Bush's acting general counsel, Frank Jimenez, was a firm alumnus.
From the beginning, the Gore camp feared that the Bush team and Harris were coordinating their efforts. And for the next five weeks, she did plenty to justify that worry.
On election night, a call had been placed from Harris's cell phone to the Texas governor's mansion. Harris later said that she lent the phone to state GOP Chairman Al Cardenas. Harris's closest advisers, in interviews after the election was decided, insisted that Harris acted independently -- indeed, that some of her actions were not precisely what the Bush team wanted.
For example, Harris declined to speed up one key ruling that would have aided a GOP lawsuit, and she pushed to expedite the entry of the Florida Supreme Court when the Bush team preferred to go slow. But in almost every instance, Harris's key interpretations of Florida law were pro-Bush. And throughout the crisis, at the side of the relatively inexperienced Harris stood one of Florida's toughest, most seasoned Republican strategists.
With his graying crew cut and close-cropped goatee, J.M. "Mac" Stipanovich, a former Marine who loves obscure books and tough fights, cuts a dashing, faintly dangerous figure on the Florida stage. As a younger man, he masterminded the 1986 election of Florida's only Republican governor in 28 years, Bob Martinez. In between his rich and rewarding life as a lobbyist, he helped run Jeb Bush's failed 1994 campaign and helped get Harris elected in 1998.
On Nov. 9, Stipanovich was on his way into Latin class -- part of his quest for a master's degree in medieval history -- when his cell phone vibrated.
A Bush campaign official -- Stipanovich won't say who -- wanted his help. Stipanovich's partner had already signed up to help the Bush legal team. "I was asked whether I was going to sit around and parse verbs, or whether I was going to get into this fight," Stipanovich recalled. "Someone like me, you don't need to be told much what to do. You just ride to the sound of gunfire."
Stipanovich came riding into Harris's inner sanctum, advising her on every crucial decision and putting himself in a position to keep the Bush campaign fully informed of every development. The only legal move Harris made that angered the Bush lawyers -- unsuccessfully asking the Florida Supreme Court to consolidate and oversee the burgeoning number of election cases -- was not cleared with Stipanovich. And Klock heard about it, from the unhappy Bush legal team.
Did Stipanovich coordinate Harris's moves with Bush? "It's a small town," he said. "I know a lot of people, and I talk to them all the time. I don't want to be more specific."
During the crucial first week of the battle, Harris repeatedly issued directives that could have killed Gore's recount effort, if they had all been upheld in court.
Just as the canvassing boards were trying to get to work, two blasts came out of Tallahassee within a few hours of each other on Nov. 13. Harris reiterated that the statutes required that election results be certified within seven days of the election -- tomorrow -- and would not extend the deadline. Only overseas absentee ballots would be counted after the deadline. For those, the deadline was Nov. 17.
Then Clay Roberts, director of the division of elections, construed the recount law as narrowly as possible. Mere voter error was no justification for looking at ballots in search of dimples, stab marks or hanging chads. Only if the canvassing boards believed that their machines had malfunctioned were they to count by hand.
It made Stipanovich proud. "Katherine kept turning the screw to bring this election in for a landing," he said later.
An Order to Stop, and One to Go
Week Two of the deadlock had arrived, although to the frantic, harried and exhausted troops on both sides, it seemed more like a year.
On Tuesday morning, Nov. 14, members of the Palm Beach canvassing board discovered the opinion faxed from the division of elections the night before, saying they were not justified in hand-counting ballots. Later that day, they received an opinion saying exactly the opposite from Attorney General Bob Butterworth.
Butterworth had gone on TV in the pre-dawn hours to present the recount in a favorable light and then worked the phone -- himself and through surrogates -- to push a ballot-by-ballot recount in Volusia County, where officials initially believed they were required only to check their computer tapes. Since then, he had kept in close touch with the vice president's team -- he remembered chatting once with William Daley, a couple of times with Gore attorneys Mitchell Berger and Kendall Coffey, and several times with officials of the state Democratic Party.
According to the attorney general's Web site, he is not ordinarily in the business of advising people about election law. "Questions arising under the Florida Election Code should be directed to the Division of Elections in the Department of State," the page advises. It also states that policy is to defer to lawyers who represent state agencies "on a day to day basis."
But Butterworth was eager to render an opinion. He said his staff began calling the Palm Beach canvassing board, prodding it to make a request, which it did Monday evening. In his opinion the next day, Butterworth argued forcefully that Palm Beach County could keep counting. He hinted strongly that he felt the opinion from Roberts and Harris was a pure political power play, and suggested he had no choice but to respond.
The canvassing board now had two opinions -- one saying stop and one saying go. The outside counsel to the board, civil liberties lawyer Bruce Rogow, was sitting in his hot tub when it hit him what to do:
Ask the Florida Supreme Court.
Preparing for a War on Many Fronts
Ron Klain, Gore's chief lawyer in Florida, pondered the calendar and perceived a problem. He had asked his Harvard Law School mentor, the legendary constitutional scholar Laurence Tribe, to handle Gore's case in federal court. This decision came almost immediately, when Klain still imagined that one man could do all the appellate work. But as he contemplated the likely next step, and next, and next, Klain realized that it was entirely likely Gore would be fighting in federal and state appellate courts at the same time.
He consulted with Duke University law professor Walter Dellinger, a close adviser to Gore, former solicitor general and another of the leading liberal constitutional theorists in America. "Who's the best appellate lawyer we don't already have?" Klain asked. The answer, they both knew, was arguably Dellinger himself. But with a pair of pressing Supreme Court cases looming, and a keen realization that this dispute was not a way to win friends, Dellinger had taken himself out of consideration.
"Joel Klein," one of them said -- referring to the recently departed head of the Department of Justice's antitrust division, the slayer of Microsoft. Klein's name reminded them of the private attorney Klein had hired to press the Microsoft case, David Boies.
They decided to call both men in hopes of finding one who was available. Klain discovered that Klein was on an airplane, unreachable, while Dellinger got in touch with Boies within a half-hour.
In Boies, Gore had retained the Clarence Darrow of modern commerce, a quicksilver and endlessly quotable advocate for himself and all of his wealthy clients, the sort of man who could eat dinner with reporters and settle a multimillion-dollar lawsuit by cell phone at the same time. ("It wasn't a very complicated negotiation," he said suavely when he clicked off and returned to his companions.)
For Boies, victor in the highly technical Microsoft case, the election litigation was not complex at all. The way Boies saw it, under Florida law, Gore was entitled to a manual recount, and his job was to help Gore get it.
Before he flew to Florida, Boies told his law partners that this seemed like a short-term task, one that would be accomplished in a matter of days or a week at the most. Soon after his arrival, Boies realized he would be preparing for more than a Florida Supreme Court argument and that the ferocity of the Republican resistance to a recount was more than he imagined. He also found himself cast almost immediately in the role of chief Gore spokesman, an acknowledgment by the Gore team of what they called, "C.O.B." -- for cult of Boies.
Boies saw the constant schmoozing and TV appearances as a useful tool in trying to wear down the obstacles to a manual recount. What he never imagined was that what he saw as essentially a routine election law case would turn on an argument in federal court about equal protection.
A List Minus the Error Factor
The Bush team's run to federal court began badly when U.S. District Judge Donald Middlebrooks, a Democrat, ruled quickly and emphatically against them, citing the traditional Republican shibboleth of state authority.
James A. Baker III, George Terwilliger, Benjamin Ginsberg and company faced a dilemma. They could appeal the loss and run the very real risk of another loss, with attendant public relations damage. Or they could shelve their federal claim.
Baker put the options in a memo addressed to Bush and running mate Richard B. Cheney. They "had no hesitation," Baker recalled. "They said keep the case going."
Meanwhile, in Tallahassee, the parties clashed in the Leon County courtroom of Judge Terry Lewis, a Democratic appointee who had recently angered conservatives by ruling that a law requiring minors to notify their parents before having an abortion violated the Florida Constitution. But Lewis was also generally regarded as a fair judge -- the word in Jeb Bush's office was that he could be expected to stick to the law.
The suit at hand asked him to prevent Harris from certifying the election results the next day. At issue was the Florida election law that said counties "must" certify results to the state within seven days of the election. The law also said the secretary of state "shall" reject late-filed returns -- then in another place said more flexibly that she "may" ignore late filings.
To Bush lawyer Mike Carvin, the law was "as clear as a goat's [behind]" -- a deadline is a deadline, and confusion in South Florida was no excuse. As Harris herself had argued, Hurricane Andrew -- the mammoth storm that devastated the area in 1992 -- was an excuse for late filing. Confusion over ballots or whether to conduct a hand count was not.
The issue seemed just as clear to the Democrats -- the law was inconsistent, allowing for candidates to request hand counts but setting a deadline that did not allow enough time for a populous county to examine every ballot. That was the reason for saying that the secretary "may" accept late filings -- because some counties could not possibly get a protested election resolved in just seven days.
Lewis's ruling was a mixed bag for both sides. Harris did have the authority to certify the results, he found, but she could not rule out late returns without good reason. The counties would now have to submit some hard numbers, which Harris could then certify as the official result, giving Bush a clear victory.
Yet there was a problem, as Harris's key adviser, Stipanovich, saw it. His goal was to keep "narrowing the funnel," as he put it. But what now would prevent the county boards, controlled by Democrats, from taking their sweet time thinking up reasons for being late with their numbers -- all the while continuing to count, possibly inching Gore ahead?
Harris had an idea: She would send a letter to the county elections supervisors demanding that they spell out their reasons for wanting to file amended returns after the deadline.
The Steel Hector lawyers searched Florida case law for reasons the courts and other agencies had used in the past to justify late filings. They found: vote fraud, machine malfunction, substantial negligence on the part of election officials and natural disasters -- but not voter error.
This became Harris's list. She didn't send it to Palm Beach, Broward and Miami-Dade counties until after the canvassing boards had submitted their reasons for wanting to hand-count, though she had made clear earlier that only a broken machine or "an act of God" would be acceptable reasons for doing it.
But in their responses, no county cited either reason. To some Republican lawyers assessing their opponents' tactics, this seemed a colossal error.
Two and a half weeks later, the Gore campaign would present evidence in court that aging Votomatic machines are plagued by problems -- the rubber strips can harden, the punched chads can pile up, all sorts of things can happen to make it more difficult to vote properly. But at this point, no one thought to allege a mechanical problem. Had they done so, in the words of Donna Blanton, a key lawyer for Harris: "It would have been a different story."
Given the reasons forwarded by the county boards, Harris felt free to reject late filings. On Wednesday, Nov. 15, she announced that the election results would become official that coming Saturday, the deadline for receiving overseas absentee ballots. There were Bush lawyers who hoped she would simply say nothing -- just come out at the deadline and certify the election, leaving Gore to try to undo it after the fact. But the strong stand made her a hero in her own party. Bouquets filled Harris's office, more than 60 of them, including one from a church in Sarasota. The card said, "You are our Queen Esther to America. God bless."
At this point, George W. Bush led Al Gore by just 300 votes -- one-half of one-hundredth of one percent of the Florida total.
Gore's Bomb: A Statewide Recount
That night, Al Gore went before the television cameras in a speech timed to interrupt the evening newscasts. "We should complete hand counts already begun in Palm Beach County, Dade County and Broward County," he said -- slightly exaggerating the state of affairs in those highly conflicted counties. Only Broward was entirely committed to counting at that point. "If this happens, I will abide by the results," Gore said.
Then he dropped his bomb: "I am also prepared, if Governor Bush prefers, to include in this recount all the counties in the entire state of Florida."
With the deadline approaching, Gore and his advisers concluded that he had to shake up the equation. Early in the dispute, Gore and his advisers had established the phrase "count every vote" as a central part of their message. Later research confirmed the power of that phrase. Attacking the Republicans, by contrast, turned people off. So Gore's speech included a pointed scolding of his press secretary, Chris Lehane, for his harsh anti-Harris rhetoric.
The proposal for a statewide recount was Gore's idea. For days, the Bush team had hammered Gore for trying to prolong the recount. "The Bush people were saying these guys are trying to destroy America, they don't care about anything," a senior Gore adviser said. "The statewide recount sounded like a reasonable thing. We would have been shocked if he had accepted. But turning it down showed he was less reasonable."
Gore also proposed a meeting with Bush as a way to reassure the country that the Florida battle would not be too disruptive to the political system. He was surprised that Bush rejected that idea as well -- and amazed when no one criticized Bush for doing so.
The speech caught Bush unprepared. The Texas governor was ensconced at his ranch outside Waco, so Bush's aides bundled him into a motorcade for the two-hour ride southward along the prow of the Texas Hill Country. As he drove, he and his staff tried to figure out what he should say when he reached Austin.
First they sized up the offer. It wasn't much, really. Just basic recount theory -- the candidate who is behind pushes for the broadest counts and the most favorable possible standards. The one in front has everything to lose and nothing to gain by going along.
The motorcade arrived in Austin about 9 p.m., and Bush quickly went before the cameras to reject the hand counts, which he said could only introduce human error.
"So long as the Florida Supreme Court was rewriting the law and people were divining intent, we had a battle on our hands," Bush said later. "And if he [Gore] wasn't willing to address that, then all the rest of it was PR. That's why I rushed back: PR."
Enter the Florida Supreme Court
On Friday, Nov. 17, a day before Harris was set to certify the results -- with Bush's lead growing again as the overseas absentee votes were counted -- Judge Lewis ruled again for Harris. Her decision not to accept late returns was a reasonable exercise of her discretion, he determined.
For the Gore lawyers, it was the worst result imaginable. The mood in the overpopulated offices of Mitchell Berger was extremely glum.
Then, out of nowhere, a whoop and a cheer went up. The Florida Supreme Court was taking the case -- and, without anyone asking, the seven justices ordered Harris not to certify the election and, even more unnerving to the Bush team, the justices let the recount go forward. They scheduled a hearing on the case for Monday.
Now it was the Republicans' turn to sweat. They simply did not trust the Florida court -- that was part of the reason they had filed in federal court. When the justices blessed the hand counts without anyone asking them to, the Bush team felt their suspicions had been confirmed. Conservative lawyers across the country had a sense, whether they had ever set foot in Florida, that the Florida Supreme Court was liberal and activist. It was, Baker later said, simply a given that the court would be against them.
Every Republican lawyer believed that if the counting went forward, the Democratic authorities in South Florida would devise a ballot-reading standard that would lift Gore into the lead. Then Gore would switch gears, press for certification and force Bush to contest the election. The public relations battle would shift in Gore's favor, and time would start working powerfully on his side. "All their eggs were in that basket," Mike Carvin thought.
But if the Bush team could stretch things out a little longer, and keep Bush ahead, Gore would begin to face an impossible calendar. The trailing candidate could not file suit officially contesting the entire election result until that result was certified. The Florida lawyers such as Dexter Douglass worried they were wasting precious time on the protest phase, and needed to get the election certified so they could get past that phase and on to contesting the results. But the prevailing view among the Gore lawyers was that the delay was a calculated risk in order to gain a lead.
Bush Inc. drafted briefs for the Florida high court, but in many ways, the lawyers were speaking directly to the U.S. Supreme Court. Yes, they addressed Florida law and defended the deadlines. But they salted their argument with references to federal law. They cited Article II of the Constitution, giving the power to choose presidential electors to the state legislatures. They brought in Title 3 of the U.S. Code, Section 5 -- a remnant from the disputed presidential election of 1876 -- which gave preference to states that got their electors chosen by Dec. 12, using rules set forth before the voting. What Gore wanted to do, the Bush lawyers argued, amounted to a change in the rules.
Boies, meanwhile, thought he might be coming to the end of his task. The Florida justices obviously were not opposed to hand counts. If Boies could persuade them to extend the deadline for hand counts in South Florida, he could pack up and go home.
As preparations for the hearing went on, some Bush advisers worried that the Florida court would hear only from an abrasive Washington lawyer -- Carvin. So -- although many in the Republican camp were leery of Barry Richard's true loyalties -- Jeb Bush made sure the local lawyer would get time to address the justices.
For Bush, the Cookie Crumbles Right
On Saturday evening, Nov. 18, Anne Johnson got a surprise call in Austin from Laura Bush. At the end of a tough week, and feeling trapped, the Bushes were eager to get out of the house. Anne's husband, Clay, was an old school chum of George W.'s who had agreed to manage his prospective transition team.
Anne invited her friends to join them for dinner at the home of Mary and Tim Herman. Herman was an Austin attorney freshly home from volunteer duty for the governor in Florida. During dinner, Chinese carryout, Bush seemed intrigued, but hardly consumed, by the recount furor. He quizzed Herman lightly about election law and the separation of powers, but "it was not a detailed or prolonged conversation," Herman recalled. "We spent more time on the new Joe DiMaggio biography."
At the end of the evening, Bush refused to open his fortune cookie. His friends prodded. No chance. Finally, Anne Johnson tore it open and read aloud: "You are entering a time of great promise and overdue rewards."
"You made that up!" Laura Bush cried.
And for Gore, a Unanimous Ruling
In his final preparations for oral argument before the Florida Supreme Court, Carvin was reviewing cases on Monday morning, Nov. 20, when he received a note.
A knowledgeable source close to the Florida high court had alerted the Bush team that the case was already decided. An opinion had been drafted, and at least six of the seven justices were in favor of it. They intended to rule for Gore and extend the deadline five days.
Klock at Steel Hector heard it -- though he didn't want to believe it. There was nothing illegal or even unethical about the justices making their decision based on written briefs, but if they were about to go on the nation's television screens and act as if their minds were still open . . .
"Just stand up there and answer their questions," Baker counseled Carvin.
If someone had suggested, a generation ago, that the Florida Supreme Court might decide a presidential election, the reaction would have been horror.
The court, in those days, was a dismal laughingstock. One justice had been forced from the court in a scandal and was a federal fugitive on drug smuggling charges. Another ex-justice was exiled to ignominy for having allowed an electric company lawyer to write his opinion -- in an electric company case. A third justice, who liked to say that his preparation for his job was judging a local beauty contest, had clung to his seat on the court by agreeing to a psychiatric evaluation.
The disasters of the 1970s persuaded Florida to stop electing supreme court justices, and gradually a more distinguished court evolved, made up of men and women nominated by a committee of lawyers and private citizens and appointed by the governor.
Promptly at 2 p.m., the seven justices filed onto the bench. Wielding the gavel was Charles T. "Charlie" Wells, a lifelong trial lawyer. Floridians had once talked about Wells as a potential governor, but his electoral career never took off. He had the drawl of a central Florida native, evoking the days when cows outnumbered tourists. But like a lot of homegrown Floridians, Wells was hard to sandbag.
He started with a warning to the hotshot lawyers: "The court, of course, has considered the papers carefully which each of you have filed." Translation: Let's cut to the chase. And the chase, as quickly became clear, was this: How long could the South Florida counties keep counting before Florida's votes in the electoral college might be in danger of being ignored by Congress? Wells asked bluntly: "What's the date that -- the outside date that we're looking at which puts Florida's votes in jeopardy?"
This move -- sprinting right past the dispute to discuss the remedy -- confirmed for Carvin and other Republicans that the case was indeed already decided.
For Boies, the tone of the questions was pure music; he struck an answering note of cooperation. When Wells put the question of timing to him, Boies answered that "as long as the manual recounts will not impair the final certification in time to permit the selection of electors by December 12, those manual recounts must be included."
Indeed, most of Boies's time was spent discussing schedules. For political reasons, he later said, it was critical to appear reasonable and accommodating. He referred directly five times, and indirectly several more, to the Dec. 12 deadline. Underlying all his answers -- and many of the questions from the bench -- was an unspoken assumption that the count was sure to give the lead to Gore. Then the ticking clock would be Bush's problem.
The Republicans were dismayed by the tone of the questions. "I remember that walk out of the courtroom, just knowing that we had lost," said a lawyer on the team. "There were vicious glares at Carvin from some justices even when they were not asking questions." The next day, the unanimous court ruled for Gore. "The will of the people, and not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases," the justices wrote, citing a 25-year-old precedent. The hand counts were free to continue until Sunday, Nov. 26, at 5 p.m. It was a five-day extension, just as the secret source had predicted.
Gore praised the decision, calling democracy the winner that night, and renewed his appeal for a meeting with Bush. And in what he saw as a significant concession, Gore said he would disavow any efforts by Democratic allies to persuade electors pledged to Bush to switch their votes. That concession, he believed, would prevent chaos when the electors met on Dec. 18 to cast their votes.
Baker was furious. The patina of diplomacy he wore was already well-chipped by the dispute. Now it collapsed. Baker went before the cameras in Tallahassee to accuse the court of lawlessness. "Two weeks after the election, [the] court has changed the rules, and has invented a new system for counting the election results."
Bush was at the governor's mansion in Austin finishing a dinner of fried chicken and mashed potatoes with golfer Ben Crenshaw and his wife, Julie, when the Florida Supreme Court decision came down. They walked into the library and watched it on television. Bush immediately called Baker for clarification and to talk about next steps.
"While he was disappointed, he was very pragmatic, very collected," Crenshaw recalled. "He was very assertive under pressure." They all knew that this was not the end.
Next: Ballot Battles