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Everyone knew it was going to be close. But no one warned America it might end like this — in a South Florida courthouse, with an army of attorneys and possibly an elected state court judge determining the next leader of the free world. By last Wednesday, mere hours after Vice President Al Gore called Gov. George W. Bush of Texas first to concede the Nov. 7 election and then to retract his concession, both sides were mobilizing campaign and legal operations in Florida’s usually sleepy capital of Tallahassee. For Gore, former Secretary of State Warren Christopher stepped in to oversee the automatic recount triggered by state law because of the narrow vote margin. Also flying to Florida to protect the vice president’s interests were Joseph Sandler, general counsel of the Democratic National Committee; Ronald Klain, a former Gore chief-of-staff and head of the campaign’s rapid response unit; and a planeload of approximately 70 campaign staffers. On the Bush side, former Secretary of State James Baker III leads a team including George Terwilliger III, a former deputy attorney general under President George Bush; Theodore Olson, former head of the Office of Legal Counsel under Ronald Reagan; and Bush campaign counsel Benjamin Ginsberg, a partner at D.C.’s Patton Boggs. Both campaigns quickly tapped high-profile Florida lawyers and local law firms for assistance. “Right now, we’re still in the mode of letting the orderly statutory process unfold. That’s the goal at this point,” says Tallahassee, Fla., attorney Ronald Meyer, who has been working with the Gore-Lieberman legal team in Palm Beach County. “But while we’re in that mode, we’re still investigating, talking to people, and gathering information, so that if Gore-Lieberman makes the decision to litigate, we’ll be prepared,” adds Meyer, a name partner in Tallahassee’s Meyer and Brooks. Miami attorney Kendall Coffey — a former U.S. attorney for South Florida and a familiar face after his work earlier this year attempting to keep Elian Gonzalez in the United States — emerged Thursday as the Gore team’s resident expert in Florida state election law. In 1998, Coffey argued a successful election fraud case on behalf of defeated Miami mayoral candidate Joe Carollo. The election results were reversed by a state court after finding that a critical number of absentee votes had been cast for Carollo’s opponent by deceased residents or were otherwise fraudulent. Carollo’s adversary was ousted from office. Playing defense for Bush in the increasingly probable event of a Gore legal challenge is Miami litigator Roberto Martinez, another former U.S. attorney for South Florida. Greenberg Traurig Tallahassee partner Barry Richard has been retained to represent the Republican team in the state’s capital. But at least one Florida firm contacted by the Gore team, Tampa-based Holland & Knight, ultimately decided not to get involved in the politically divisive situation. One senior partner in the firm’s Washington, D.C. office suggests that Holland & Knight did not want to make enemies with those who might one day occupy the White House. Tallahassee partner Martha Barnett, who spoke with campaign officials last week, declined to comment on the firm’s reasons for declining the representation. Early media reports identified Barnett, president-elect of the American Bar Association, as an attorney for the Gore campaign. But Barnett maintains she never offered counsel. “I’m sure Gore people talked to a number of law firms, and we were one of those firms. We never talked strategy with them, and we don’t represent them now,” Barnett says. WHO’S IN CHARGE? Despite the assembly of legal heavyweights, the Gore campaign has yet to take its claims of voting irregularities to court. A flurry of legal challenges were filed last week on behalf of individual voters, however. According to Meyer, who worked closely with the DNC’s Sandler in Palm Beach, those suits are being discouraged by the campaign, which would prefer to control the shape and timing of an eventual legal challenge. In support of the Gore team’s wait-and-see approach, Meyer himself backed off plans to file suit Thursday. “Once Gore-Lieberman people got on the site, the message came through loud and clear that they didn’t want a whole bunch of lawsuits challenging things,” he says. “The fear is that a whole lot of litigation is distracting and could be offensive to voters.” But by the end of last week, the Gore team was clearly gearing up and testing public tolerance for a legal challenge. The most likely scenario: a lawsuit in Florida state court questioning the validity of election results in Palm Beach County, where a confusing ballot design may have led Gore supporters to inadvertently cast their votes for Reform Party candidate Pat Buchanan, or for both Buchanan and Gore. According to a lawyer for the Gore campaign, the remedy likely to be sought would be a reversal of the election results or a new election in the county. “It’s simply not acceptable to have an election where there are signs of distortion,” he said. “From an evidentiary standpoint, we think we would meet and surpass the standard under Florida law to overturn the results.” By now, the strange situation causing problems in Palm Beach is well-known. Buchanan garnered more than 3,000 votes — almost 20 percent of his total vote in the state — in Palm Beach County. In addition, approximately 19,000 ballots were not counted at all because more than one presidential candidate was selected. Democrats suggest that a large number of those votes were intended for Gore. Some election law experts not involved in this dispute but sympathetic to the Gore camp say that the ballots may have been not only misleading but also technically illegal. According to state law, ballots must be designed so that voters indicate their selection to the right of a candidate’s name. On the Palm Beach ballot, punch holes were placed down the center with the names of candidates on either side. In addition, the Democratic ticket ought to have been listed second on the ballot. On the Palm Beach ballot, Gore and Lieberman were listed directly under the Republican candidates, but corresponded to the third punch hole. Meyer says volunteer lawyers in Palm Beach have collected statements from more than 1,000 individuals, many elderly, who claim they were confused by the ballot and may have miscast their vote. Republicans point out that representatives of both parties approved the ballot and that an arrow pointed from each candidate to the appropriate hole. All registered voters received a sample ballot in advance of the election. The underlying philosophical issue may be how much responsibility election authorities must take to interpret citizen votes and how much responsibility lies with citizens themselves. “The bottom line is the system tries to give effect to a person’s intent,” says Steven Ross, a partner in the Washington, D.C. office of Akin, Gump, Strauss, Hauer & Feld and general counsel to the Democratic majority in the U.S. House of Representatives from 1983 to 1993. “There’s always a balance that goes on between being overly legalistic and at the same time trying to give weight to a person’s intent.” Under state law, the results of an election can be challenged on five grounds, including “misconduct, fraud, or corruption on the part of any election official or member of the canvassing board” and “receipt of a number of illegal votes or rejection of a number of legal votes.” Lawyers for Gore cite a 1998 Florida Supreme Court decision that they believe lowers the bar. The case, Beckstrom v. Volusia County Canvassing Board, states that “even in the absence of fraud or intentional wrongdoing” an election must be declared void if election law violations place results in “reasonable doubt.” With Gore trailing by more than 300 votes according to unofficial tallies of the automatic recount, 19,000 uncounted ballots in the strong Democratic region might indeed be enough to call the entire state’s — and consequently the entire nation’s — election results into question. Democrats have also asked for a hand-count of votes in four Florida counties — Miami-Dade, Broward, Palm Beach, and Volusia. Lawyers for the GOP say they, too, have precedent on their side. A 1974 ruling by a state appeals court in Nelson v. Robinson concludes that “a person who does not avail himself of the opportunity to object to irregularities in the ballot prior to the election may not object to irregularities after.” Jan Baran, an election law partner at Washington, D.C.’s Wiley, Rein & Fielding who has handled more than a dozen recount situations for Republicans, says Democrats would face a heavy burden in showing that specific ballots were miscounted or miscast. “For some voters to go in and say I was confused and I misvoted only proves that their one ballot has to be thrown out. That doesn’t necessarily speak for thousands of voters,” Baran says. He adds that it would be almost unheard of for a judge to order a new election. The most common outcome in election challenges is the elimination — not recasting — of votes, agrees Covington & Burling’s James Portnoy, a Democrat. According to Portnoy, a judge might decide to throw out all the votes in a problematic area. If that were the remedy in Palm Beach County, it would actually hurt Gore. “There are strategic calls to be made. This isn’t automatic,” Portnoy asserts. “If I were calling the shots, I would be extremely reluctant to take this to court.” ON THE GROUND At the helm of the team that will make that fateful call for Gore, are Christopher, Klain, former White House Counsel Jack Quinn, and campaign chief William Daley. The reportedly chaotic ground operation in Florida has been loosely organized into three groups: legal, field, and communications, according to one Gore lawyer. Campaign staffers continued to arrive in Tallahassee all last week as the Nashville headquarters were torn down. To fuel the massive effort under way, the Gore campaign quickly established a recount committee and turned to its donors for a quick cash infusion. Unlike campaign contributions, there are no limits on individual donations to a candidate’s recount fund, a DNC spokeswoman says. No corporate, union, or foreign money can be accepted. Meanwhile, the Bush camp has been working around the clock to draw up responses to a possible legal challenge by Gore. Terwilliger, a partner in the Washington, D.C. office of White & Case, flew to Florida the day after Election Day to head up Bush’s legal defense. White & Case Washington, D.C. partner Timothy Flanigan, head of the Office of Legal Counsel in the Department of Justice under Bush’s father, and roughly 20 other lawyers from the firm’s New York, D.C., and Miami offices, are also working on the Bush effort. Other lawyers watching out for the GOP in Florida include Covington & Burling’s Bobby Burchfield, who is supervising the recount in Miami-Dade County along with four firm associates. Should the looming battle play itself out in a Florida state court, the country will be in uncharted waters. Any court challenge is likely to end up before the state’s Supreme Court. Conceivably, if Florida cannot resolve its election in time for the Dec. 18 meeting of the Electoral College, the newly elected House in the 107th Congress could vote for the new president, say some constitutional experts. Edward Correia, of counsel in the Washington, D.C. office of Latham & Watkins, says a scenario where the House steps in is not far-fetched. “If there truly is a new election, you have to set aside time for the new election and for identifying who gets to participate,” Correia adds. “Then there might be a challenge to those results. There may be a lot of steps before this is resolved.”

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