Toobin - Too Close To Call, Rev. Ed. (2002) - Synopsis

UFPPC (www.ufppc.org) Digging Deeper LXI: November 3, 2008, 7:00 p.m. Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (New York: Random House, October 2001; paperback October 2002, with “revised and expanded epilogue”). Cast of Characters. 79 individuals: candidates, campaign officials, Florida officials, lawyers and strategists in “the battle for Florida,” Palm Beach County officials, Miami-Dade County officials, Broward County officials, U.S. Supreme Court judges, a U.S. District Court judge, Florida Supreme Court judges, Leon County Circuit Court Judges, and a Palm Beach County Circuit Court judge (xi-xiv) Chronology: Recount 2000. A table of events day-by-day, Nov. 7-Dec. 13, 2008, divided in four columns: Statewide Developments, Palm Beach, Miami-Dade, and Broward Counties ([xv]-[xix]). Prologue: Florida Sunrise. First sign of Palm Beach County butterfly ballot problem on Election Day (3-5). The closest, most dramatic, and most complicated election in U.S. history (5-6). The subsequent battle is best understood as a continuation of the campaign in which the “passion gap” between the candidates was the most important factor (7-8). Ch. 1: A Big Problem. Ron Klain, whose relation to Gore and the campaign typifies its aloofness from gritty intimate bonds (9-11). Michael Whouley, organizer of the campaign’s field operation, calls Natalie Zellner, who calls Theresa LePore, the supervisor of elections in Palm Beach County (11-13). The butterfly ballot (13-16). Gap between Gore’s campaign management and campaign workers (16-17). With exit polls showing Gore winning Florida, between 7:49:40 and 7:52 p.m. EST NBC, CBS, & ABC called election for Gore when New Mexico goes for Gore; then, between 2:16 and 2:20 a.m. Fox, CBS, and NBC, and ABC called Florida for Bush, and Gore

decided immediately to concede— without consulting Michael Whouley (1721). When Nick Baldick, Florida vote counter, reports that the networks used erroneous numbers from Volusia County and Florida is too close to call, a frantic effort succeeds in reaching Gore with the news; he withdraws concession (21-25). Ch. 2: The Flight of Recount One. John Hardin Young, recount expert, advises getting people to Florida; Ron Klain will help run the effort there (2629). Warren Christopher agrees to head it; a party line emphasizing process is adopted (30-31). Operatives are to gather information (31-32). Failing to find a law firm in Tallahassee willing to represent them, Klain assembles a “virtual law firm” (32-34). Team decides recounts, not lawsuits, are called for; Bush’s lead in Florida slips to 327 (3436). Ironically, William M. Daley, son of notorious Chicago mayor Richard Daley, is Gore’s campaign manager (36-37). Daley and Christopher decide which counties to “protest” (demand recounts) (37-39). Ch. 3: “People Get Screwed Every Day.” [Daley quip to Gore (56)] James Baker, not involved in the campaign and busy with the Carlyle group, chosen to run the Florida effort for Bush (40-42). Ben Ginsberg, veteran of the 1984 recount battle in Indiana’s 8th Congressional District, stolen by Democrats in the House, an event that let to “the radicalization of the Republican minority in the House” (44; 42-45). Baker and Christopher each regarded their situations as “dire” (4547). Baker wants to paint recounts as subversive and use the federal courts to stop them (47-48). Former Republican

Missouri Sen. John Danforth disagrees and is out (49-50). Democrats’ call for partial recounts gives birth to the Republicans’ equal-protection theory (5051). Rove orders pro-Bush protesters into the streets (51). Gore’s people were too fearful of appearing “aggressive” (5152). Baker in charge (52-53). On Sat., Nov. 11, Republicans file suit (53). Gore relished the process of the struggle but “never seemed agonized” (53-54). Daley and Christopher “felt a Gore victory was nearly impossible, even though more people in Florida had gone to the polls there intending to vote for the vice president than for Bush” (55-57). Ch. 4: In for a Landing. Katherine Harris, Florida’s secretary of state, was the granddaughter of Ben Hill Griffin Jr., citrus baron (58-62). The chaotic Division of Elections office, run by Clay Roberts, by 6:00 a.m. reported Bush 2,909,135, Gore 2,907,351; with the margin less than 0.5%, an automatic recount was to be made (62-63). The Bush campaign endlessly repeated that all the votes had been “counted and recounted,” while Harris and her office kept quiet about the fact that 18 of Florida’s counties (1.58m votes) merely retallied and did not recount, however, despite a previously issued ruling that they should do so; “to this day, the votes in the eighteen counties still have not been officially recounted” (66; 64-67). Mac Stipanovich, a Republican lobbyist, was named Katherine Harris’s minder, telling her: “You have to bring this election in for a landing” (69; 68-71). Decision needed on the four manual recounts demanded by Gore (71-73). Gov. Jeb Bush’s gets involved; Harris’s office acts “as a wholly owned subsidiary of the George W. Bush campaign (73-76). Ch. 5: The Palm Beach Story. Judge Charles Burton, a member of Palm Beach County’s three-member canvassing board, charged with certifying the fairness and accuracy of elections (77-

79). “The least typical county in the United States,” with the contrast of rich Palm Beach and poor Belle Glade: by Thursday, thousands were incensed and the county was a focus of national attention (79; 79-81). Three precincts were recounted on Friday, the day Judge Burton, with the connivance of Kerey Carpenter (a Harris aide), invoked the rule that “hanging chads” counted but mere “sunshine” through the chad was not enough to count; this limited Gore’s gains, and a later count showed this standard cost Gore 784 votes in Palm Beach County, enough to swing Florida) (81-88). At 2:00 a.m. Sunday, in a raucous meeting, the board votes 2-1 for a county-wide manual recount (88-91). But Burton, acting alone, asks Harris for an opinion; she shut down the recount, but on Thursday the Florida Supreme Court authorizes it to proceed (91-93). Ch. 6: Shall versus May. Organization of Bush’s “armada of legal firepower” in Florida (94-97). The Gore team lacks fire at the top as well as in the ranks; Ron Klain becomes its de facto head (97-99). In federal court in Miami, with Laurence Tribe of Harvard Law School arguing for Bush, the Bush team’s equal protection argument is rejected on Nov. 13 (99101). On the same day, Judge Terry Lewis in Tallahassee is asked to decide if Katherine Harris could use an ambiguous state law to justify prematurely certifying the election (101-06). Klain enlists David Boies to argue appeals to the Florida courts (106-07). Ch. 7: “This Is Guatemala.” Judge Lewis’s ruling says Harris has discretion to reject late returns (108-09). Boies’s “low-key panache” (110-11). He finds in the decisions of the Florida Supreme Court the view that ?\”[t]he real parties here . . . are the voters” (113; 111-14). On Wed. night, Nov. 15, Harris announced she would certify on Sat., Nov. 18 (114-18). Simultaneously, Gore gave a speech that was fair-minded, but

far removed from the (in Klain’s words) “Guatemala down here” (118-20). Christopher and Daley reject subpoenaing Katherine Harris (120-21). On Thurs., Nov. 16, the Florida Supreme Court said the recounts could proceed (121-22). Ch. 8: Cold Winds in Tallahassee. On Fri., the Gore team decides they will file a contest after Harris’s certification of the election (123-25). Then, late on Fri., Nov. 17, the Florida Supreme Court, “on its own motion,” barred Harris from certifying the election (125-27). Katherine Harris, many Florida Supreme Court judges, and other political figures attended Sat. night’s Florida-Florida State football game (128-29). William Kristol pushes Bush team to complain publicly of the Democrats’ effort to keep overseas ballots from counting; Lieberman capitulate[s] completely” on Sun. morning’s “Meet the Press” (129-32). The Florida Supreme Court rule late on Tues., Nov. 21, that the counties have until Nov. 26 to recount (132-36). James Baker “in a state of coiled fury” attacks the court and says the Florida legislature (controlled by Republicans) may step in (136-38). Ch. 9: Mayor Loco, Crazy Joe, and the Battle of Miami. Miami lawyer Kendall Coffrey’s decision to work for Gore’s team struck the Cuban community as craven opportunism, because of the Elián González case (139-44). Roger Stone, a Republican operative, was familiar with how to use Spanishlanguage radio (144-47). The recount in Miami-Dade County is delayed by a struggle in the canvassing board (14752). On Wed., Nov. 22, Stone organizes Republican protests that shut down the Miami-Dade recount in the Clark Center, “never to be resumed” (157; 152-58). Dick Cheney has a heart attack (157-59). Ch. 10: Thanksgiving Stuffing. The Broward County recount nets a gain of

567 votes for Gore (160-63). Bumblers in Palm Beach County adopted an inappropriate strict standard, then took Thanksgiving off; Gore only got about 200 more votes here (164-68). Toobin downplays the significance of Republican efforts to lower the number votes by blacks, but does not discount them altogether (168-70). Bush team legal maneuvering (170-71). In Jacksonville, Duval County, Democrats failed to realize in time that some 26,000 votes weren’t counted, concentrated in AfricanAmerican precincts, a “caterpillar” ballot being largely to blame (171-73). The struggle over overseas ballots added 123 votes for Bush (174-76). Ch. 11: [email protected]. Gore too remote, scholarly, detached, “almost bloodless,” etc. (177-79). Gore takes to Boies (179-81). On Fri., Nov. 24, the U.S. Supreme Court granted certiorari and expedited consideration (181-82). The court’s involvement stood Chief Justice Rehnquist’s principles on their head (federalism, ripeness) (182-84). The Federalist Society and the court’s political interest (184-85). Palm Beach misses the Nov. 26 deadline (185-88). Harris certified the election with Bush winning by 537 votes (188-91). Ch. 12: Lose Slow, Lose Fast. Clinton believes Gore should be much more aggressive (192-94). Gore team’s legal reasoning (195-97). Nov. 28 conference call on strategy (198-202). Judge N. Sanders Sauls, redneck judge for the contest litigation (202-05). Ch. 13: Great Americans. Republican strategy: vote totals are key (206-07). Baker moves to recuse a distinguished judge, Nikki Clark, because she is black (208-10). Trial preparations (210-11). Boies decides to focus on the ballots (211-13). Supreme Court argument, Dec. 1 (213-16). Contest litigation before Judge Sauls (216-23).

Ch. 14: “Fourth Down and Long.” Al Gore’s “neediness” (224-27). The U.S. Supreme Court sends the case back to the Florida Supreme Court on Dec. 4 (227-28). Sauls rules for Bush across the board, also on Dec. 4 (228-29). “[D]eathwatch for Al Gore” begins (229). On Dec. 7, the Florida Supreme Court hears argument (230-32). On Dec. 8, it orders “a manual recount of all undervotes in any Florida county where such a recount has not occurred . . . commence immediately” (237; 233-37). Ch. 15: Irreparable Harm. Frantic, surreal scenes Fri. night (238-42). Recounting begins on Sat. morning (24247). At 2:45 p.m. Sat., Dec. 9, 2000, the U.S. Supreme Court, 5-4, issues a stay “with an undeniable partisan edge,” stopping the recount (251; 248-51). Gore senses defeat; the recount stops (25253). Ch. 16: “Al Sharpton Tactics.” Klain threatened with contempt of court in Florida (254-56). Gore decides to drop Tribe and have Boies argue before the Supreme Court (257-58). Argument before the court on Mon., Dec. 11 (25863). Views of the justices (263-67). Decision handed down at 10:00 p.m. on Dec. 12 (267). On Wed. morning, Gore decided not to file a brief asking Florida Supreme Court to resume the recount with a single standard (268). Gore concedes (269-70). Epilogue: Moving On. The new administration is extremely partisan (271-72). Bush rewards his team (27375). The Supreme Court’s prestige survives (275). Vote totals; Gore received 540,520 more votes than Bush (275-76). Gore lost because he was “bedeviled by his superego” (276-77). Gore’s team retired to private life and didn’t encourage him to run again (277). In a recount of all undervotes and overvotes conducted by the National Opinion Research Center at the

University of Chicago and sponsored by eight news organizations, “Gore emerged the victor” under all standards, though news media emphasized instead that if the partial recount had proceeded as the Florida Supreme Court ordered it, Bush would have won (278-81). “[I]t is a crime against democracy that [Gore] did not win the state and thus the presidency. It isn’t that the Republicans ‘stole’ the election or that Bush is an ‘illegitimate’ president. But the fact remains: The wrong man was inaugurated on January 20, 2001” (282). Source Notes and Acknowledgments. Toobin was in Florida the whole time, and interviewed more than 100 participants afterwards (283). Bibliography of 12 books (283-84). Media accounts (28485). Toobin is a friend of Klain, Tribe, and Boies (285). Editors and publishers (28586). — Index. 11 pp. — [About the Author. Jeffrey Toobin was born on May 21, 1960. He is a lawyer and author, a staff writer at the New Yorker and a legal analyst for CNN. He graduated magna cum laude both from Harvard in 1982 and from Harvard Law School in 1986, where was an editor of the Harvard Law Review. He freelanced for the New Republic as a law student. He worked for Lawrence Walsh during the Iran-Contra affair. After working as an assistant U.S. attorney in Brooklyn, he became a staff writers at the New Yorker and has written five books, including Opening Arguments: A Young Lawyer’s First Case—United States v. Oliver North (1992), The Run of His Life: The People v. O.J. Simpson (1997), A Vast Conspiracy: The Real Story of the Sex Story That Nearly Brought Down a President (2000), and The Nine: Inside the Secret World of the Supreme Court (2007), which won the J. Anthony Lukas Book Prize. Toobin received a 2000 Emmy for his coverage of the Elián González case. He is the son of Marlene Sanders (the first woman to cover the Vietnam War from the field, the first woman to anchor a nightly

newscast, and the first woman VP of ABC News) and Jerome Toobin, a public television producer. He is married (to

Amy McIntosh), has two children (Ellen, born in 1991, and Adam, born in 1993) and lives in New York City.]