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Lisa Brown, counsel to Vice President Al Gore, left work early on Tuesday, Nov. 7, and flew down to Nashville for election night. She brought one change of clothes, expecting to fly back to Washington the next afternoon as a top lawyer to the president-elect of the United States. But Brown, 40, didn’t leave Nashville until nearly midnight Friday. One night of hopeful anticipation turned into three days spent mobilizing volunteer lawyers to aid the vice president’s fight in Florida. Upon her return to Washington, Gore’s fate was more in question than before the national election. Then, at least one felt certain what would happen next, if not what the results would be. But all certainty disappeared somewhere before dawn on the morning after the 2000 election. The only thing Brown felt sure of as she headed home was that both camps stood on the brink of a legal duel the likes of which had never been seen. Indeed, Brown woke up to a phone call Saturday morning informing her that the first shots had been fired: a federal lawsuit filed by Gov. George W. Bush and his vice presidential running mate Dick Cheney. The battle that ensued would last 36 days and go twice to the U.S. Supreme Court. The morning after Election Day, there was still no clear winner of the presidency, and troops for both candidates were hustling to Tallahassee — two former U.S. secretaries of state; two planeloads of politicos; two battalions of lawyers studying up on Florida election code. In cramped offices, the camps built their war rooms. On laptops in hallways, they drafted their preliminary arguments. With two hours of sleep, fueled by caffeine, sugar, and the impetus of history, they developed the strategies that would win one candidate the White House. Gore’s inner circle was on the ground less than 24 hours after the final polls closed in the presidential election. Former Secretary of State Warren Christopher, campaign manager William Daley, and former Gore chief of staff Ronald Klain led the charge from Tallahassee. For Bush, former Secretary of State James Baker; campaign manager Don Evans; and a fleet of former U.S. Justice Department officials including Theodore Olson, a Reagan-era assistant attorney general, set up their command post at the Tallahassee headquarters of the Florida Republican Party. High-profile Democratic and Republican loyalists made the talk-show rounds while volunteers fanned out across Florida to supervise the county-by-county recounts mandated by state law in close elections. Following the completion of the count Friday, Nov. 10, the margin handing Bush the White House had narrowed to an implausibly thin 327 votes out of nearly six million ballots cast in the state. Something else extraordinary happened in those early days: Gore and Bush stopped being just candidates and became clients. The two legal teams pursued vastly different strategies: Gore’s lawyers argued the primacy of state law, while Bush’s lawyers immediately sought a federal option. These early decisions determined the course for a struggle that would be characterized by repeated jockeying between state and federal power. And indeed, as the election lawsuits ping-ponged through the state and federal judiciaries, each side saw its positions prevail at various moments. The Florida Supreme Court twice breathed new life into Gore’s frustrated quest for a hand count of votes. And in the end, Bush’s lawyers found the safe harbor they sought in the U.S. Supreme Court. But lawyers on both sides know how easily things might have gone differently. One more day of counting, 200 more votes for Gore, and the case might never have reached the U.S. Supreme Court at all. “This lawsuit is brought to preserve the integrity, consistency, equality, and finality of the most important civic action that Americans take: their votes in an election for the President of the United States,” argued lawyers for Bush in Siegal v. Lepore, U.S. District Court for the Southern District of Florida On Wednesday, Nov. 8, nearly 200 Republicans participated in an emergency conference call, organized to recruit volunteers in Florida. Originally scheduled for early afternoon, the call had to be postponed after high response crashed the phones. Two hours later, a second call was routed through Bush headquarters in Austin to accommodate the crush of lawyers. By Friday afternoon, dozens of Republican lawyers in Tallahassee and across the country were working furiously on the campaign’s most urgent matter: a federal motion to stop hand counts from proceeding in four predominantly Democratic counties. Led by Olson, the Tallahassee team included White & Case partners George Terwiliger III and Timothy Flanigan, both former Justice Department officials under Bush’s father; Ted Cruz, a Bush campaign policy adviser; Helgi Walker, senior legal counsel to FCC Commissioner Harold Furchtgott-Roth; and Columbia Law School Professor John Manning. Early on, the group charted a course that would carry the dispute up through the federal court system, rather than Florida state courts. While the strategy drew some criticism at the time, it was hardly surprising, given the legal firepower Olson had put together: Washington litigators, federal appellate specialists, and at least four former Supreme Court clerks. Still, finding and articulating a federal issue wasn’t easy. “I think that there was a real and substantial constitutional claim. I think it took some work to frame it,” says one lawyer involved in drafting the federal complaint. “We spent a lot of time brainstorming what was the strongest way to lay out the argument.” The campaign alerted the clerk of the U.S. District Court in Miami that it planned to file a complaint Friday, Nov. 9, but ultimately the writing and rewriting lasted until Saturday morning. And only late Friday night did the team settle a lingering question of whether Bush and vice presidential running mate Dick Cheney ought to be named plaintiffs. Legally, the answer was fairly simple — a critical precedent from the 11th U.S. Circuit Court of Appeals dictated that the suit be brought by voters, not candidates. But politically, it seemed disingenuous to maintain a public posture that the campaign’s interests were not driving the suit. The final decision to include both voters and the candidates was made by Bush and Baker, say Republican lawyers. “We had an internal discussion, and our decision was ‘Look, we’re doing this. We’re not going to hide,’ ” says a Republican lawyer. The campaign’s legal position that manual recounts in selective areas violated Florida voters’ First and 14th Amendment rights took a beating from constitutional scholars and law professors, but eventually evolved into the argument that would hand the presidency to Bush. But more immediately, says one Bush adviser, the federal lawsuit cast suspicion on the ongoing recounts and changed the terms of the public debate. “We filed our suit on Saturday, and on Sunday — when the Palm Beach canvassing board held its press conferences — reporters peppered them with questions about what standard they were using and whether they had changed their standards. Nobody had been asking that the day before,” the adviser says. As the election contest continued, Bush’s federal suit came to seem less critical. But the case never disappeared completely, giving Bush lawyers the comfort of a back-up plan should things go awry at the state level. And indeed when things did go dreadfully wrong for the Republican camp with the success of Gore’s contest in the Florida Supreme Court, it was the equal protection argument that turned things back in their favor. “The very first thing that came to mind on the Thursday following election was the equal protection argument, and really that was the argument that carried the day, even though it was pooh-poohed at the first,” says Gibson Dunn Washington, D.C., partner Terence Ross. “The eyes of the Nation — indeed, of the entire world — are on Florida. The outcome of Florida’s Presidential election will determine who becomes the next President of the United States. … It therefore is not surprising that the provisions of Florida law, designed to ensure that close elections are decided properly and accurately, are being employed,” argued lawyers for Gore in Palm Beach County Canvassing Board v. Katherine Harris. On day 29 of the Florida battle, the morning of Wednesday, Dec. 6, an exhausted group of Democratic attorneys gathered in Ron Klain’s office for the final edit of their appeal to the Florida Supreme Court in Gore’s contest action. Publicly, the campaign had been clear that a rejection from the state’s high court would be the end of their fight. Now, less than two hours before the filing deadline, the team worked frantically to cut a 90-page brief down to the 50-page limit set by the court. “Once [Judge Sanders Sauls] made his decision, we felt we had so much fodder to work with, it was tough to whittle it down,” says one lawyer involved in the contest. He adds: “It’s an unbelievable thing to experience to know that the law and the facts are on your side.” It was fitting that the vice president’s lawyers would select the Florida Supreme Court for their last stand. From the beginning, the Gore camp’s strategy relied on the conviction that state law would support their quest to include partially punched ballots in the certified vote totals. “We were always acting within state law, urging the application of state law, and turning to the state’s high court to interpret that law,” says Mark Steinberg, a senior member of Gore’s legal team. Mindful that any victory would be appealed to the U.S. Supreme Court, Gore’s lawyers based their strategy on a belief that Chief Justice William Rehnquist’s Court, committed to federalism, would be reluctant to overturn a state’s decision. In a best case scenario, of course, the Gore team hoped that recounts would add enough Gore votes to reverse the tally and change the dynamic of the fight. But each time the vice president’s lawyers secured what they were after, new hurdles appeared. A Florida Supreme Court ruling on Nov. 21 pushed the certification of the election off five days and seemed to clear a path for hand counts to proceed. But one day into its manual count, members of Miami-Dade County’s canvassing board unexpectedly threw up their hands, saying they didn’t have enough time to finish the job. Then Harris rejected returns submitted by Palm Beach County two hours past the deadline established by the court. The five-day counting period the Gore team had secured from the state high court passed — adding only 393 votes to Gore’s total. Harris then certified Bush the victor, and never again would Gore’s legal team come so close to achieving its aim. Having made little progress, and with just two weeks remaining before the critical Dec. 12 deadline for Florida to name its electors, the Gore team had to carefully select which remaining battles to fight. The final lawsuit set out five specific grounds for contesting the certified election results and adhered closely to state law. Again, the Gore team prevailed at the Florida Supreme Court. But again, their exhilaration was short-lived. Less than 24 hours late, the U.S. Supreme Court stepped in to halt the nascent recount. Democratic lawyers say they have few regrets, only a laundry list of “what ifs.” What if Miami-Dade had kept counting? What if they had left more time for the contest action? “I really think we fought a great fight. I think we were right on the law. Absolutely right on the law,” says Lisa Brown, the vice president’s counsel. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.”: U.S. Supreme Court’s per curiam opinion in George W. Bush v. Albert Gore Jr. Former Secretary of State Warren Christopher, head of Vice President Gore’s recount fight in Florida, and Steinberg, a Christopher law firm partner and a key Gore attorney, were on a commercial flight en route to Tallahassee on Dec. 9 when the pilot made an announcement. The U.S. Supreme Court, the pair learned along with a planeload of passengers, had just halted the hand counting of ballots in Florida. “It was as if he was announcing a football score,” Steinberg recalls. “He said, ‘The Supreme Court decision has come down and it’s Bush 5, Gore 4.’ “ The Supreme Court’s stay of the manual recounts was the beginning of the end for Gore’s legal battle. The opinion that the justices issued near 10 p.m. on Tuesday, Dec. 12, dealt the final blow. After five weeks of fighting, Gore’s lawyers felt trapped. Theoretically, the Court had left the door open to further recounts. But in every practical sense, Gore’s lawyers had no options left. Despite the bleak situation, the team kept searching for a way out, staying up through the night preparing briefs urging the Florida Supreme Court to continue the counting under more explicit guidelines. They wanted to give their client a choice. But there would be no more law suits, court briefs, or emergency motions. At about 10 a.m. Wednesday morning, Klain called the vice president’s exhausted legal team into his office to hear the news from Gore himself. According to a lawyer present, Gore commended the group for their accomplishments and thanked them for their commitment and energy. He ended by saying, “You’re the greatest virtual law firm in the history of law firms.” Almost immediately, people started packing up their things and preparing for their trips home. Around noon, about a dozen attorneys gathered at the restaurant across the street from their makeshift law office to relax and say goodbyes over beer and hamburgers, while they waited for word on their travel arrangements. The mood was not entirely somber. “The disappointment of not being able to deliver to the vice president the ultimate objective was offset by the extraordinary sense of team we had and the conviction that we were on the right side of the law,” says Steinberg. For Bush’s lawyers, of course, the Supreme Court decision was met with euphoria and relief — and an equally strong belief that the law had been on their side all along.

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