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George Terwilliger III took a distress call from Bush campaign manager Don Evans around 2 p.m. on the day after the presidential election. Terwilliger — the No. 2 Justice Department official under President George Bush and a consultant to Gov. George W. Bush’s presidential campaign — had been on the phone deliberating with other GOP lawyers and loyalists. After speaking with Evans directly, the White & Case partner jumped on a plane for Tallahassee to aid Republicans in the brewing controversy over the presidential election. And not a moment too soon. Even before Terwilliger touched down, the first of what would prove to be more than a dozen election-related lawsuits had been filed — this one on behalf of voters in Palm Beach County. Terwilliger and Washington, D.C. partner Timothy Flanigan soon found themselves in the inner circle of Bush advisers, and dozens of White & Case lawyers from offices up and down the East Coast were transformed into foot soldiers in one of the most bizarre elections in U.S. history. Obviously, White & Case is not the only firm involved in the massive effort. But, at least for the first frenetic days, the firm essentially became the Bush campaign’s in-house counsel and has since had a hand in almost every post-election legal matter. On the ground in Tallahassee on Nov. 8, Terwilliger and Flanigan began talking strategy with key Republican operatives, including former Secretary of State James Baker III and Bush campaign general counsel Benjamin Ginsberg, a partner in the D.C. office of Patton Boggs. Meanwhile, in Washington, a team of White & Case litigators settled in for a long night of researching and writing the Bush team’s response brief to the voters’ suit. White & Case partner Christopher Curran, leading the firm’s D.C. contingent, says that on that first frantic night, he grabbed every litigation associate in the office without stopping to ask who was a Republican and who was a Democrat. “About 24 hours later, I told the group that no one had to work on the case if they didn’t want to,” recalls Curran, a self-described nonpartisan. “That first night I didn’t even ask.” But by Thursday afternoon, the threat of manual counting in four heavily Democratic counties had overshadowed the threat of voter suits in Palm Beach, and Republican lawyers were changing course. The firm’s first brief, prepared and polished by noon on Thursday, Nov. 9, was abandoned as lawyers in White & Case’s New York office stepped in to relieve the sleep-deprived Washington team and began working on a federal motion to stop the counting. It was not the last time the ground would shift overnight for lawyers working on all sides of the Florida election fight. For those following last week’s courtroom action, the battlefield seemed to move on a minute-by-minute basis — bouncing from Leon County Circuit Court in Tallahassee, to the federal court in Miami, to the Florida Supreme Court in the state capital, to the federal appeals court in Atlanta. But everywhere the question was the same: to count or not to count? As Vice President Al Gore aggressively pushed to keep the manual recounts going, the Bush team and the White & Case contingent turned to the federal courts, asking that the counting be stopped. “As a matter of normal election law, it’s not surprising this is where we’ve ended up,” says Trevor Potter, a partner at D.C.’s Wiley, Rein & Fielding and general counsel to Republican Sen. John McCain’s presidential bid. “The standard formula is that whoever is ahead wants to say the election is over. And whoever is behind wants to drag it out as long as possible.” By the end of last week, at least 13 separate election-related lawsuits had been filed in state and federal courts, regarding ballot issues, manual recounts, and vote certification deadlines. And as the litigation snowballed, a colorful cast of lawyers assembled across Florida. So many high-profile attorneys descended on the Sunshine State, some lawyers on the ground complained of “preening, sharp elbows, and pettiness over who sits at lead counsel’s table.” Joining Gore’s legal lineup: Microsoft nemesis David Boies on the state level and Harvard Law Professor Laurence Tribe on the federal level. But it was down-home Democrat W. Dexter Douglass — one-time general counsel to Florida Gov. Lawton Chiles, Jeb Bush’s Democratic predecessor — who took first chair on Thursday, Nov. 16, in a Tallahassee Circuit Court to fight Florida Secretary of State Katherine Harris’ refusal to consider the results of unfinished manual counting. Leon County Circuit Court Judge Terry Lewis ruled on Friday that Harris was well within the law in refusing to consider the late hand counts. The GOP’s victory was short-lived. Later that day, the Florida Supreme Court agreed to hear the Democrats’ appeal of Lewis’ decision and barred Harris from certifying the election before its review. The GOP team added heavyweights last week as well, most notably two Reagan-era Justice Department officials — Theodore Olson, a partner in the D.C. office of Los Angeles’ Gibson, Dunn & Crutcher, and Michael Carvin, a name partner in D.C.’s Cooper, Carvin & Rosenthal. Charles Cooper of Cooper Carvin, assistant attorney general under Ronald Reagan, has also been advising the Bush team from Washington. In the end, it was this collection of the nation’s top conservative constitutional lawyers — including three men who served as head of the Office of Legal Counsel under Republican presidents and one, Terwilliger, who served as deputy attorney general — who fired the first shot, filing a complaint in federal court early Saturday morning after the election. To some, asking for a federal injunction seemed like a political and legal gamble. But for the Republican lawyers, fighting for finality and preserving Bush’s fragile lead had become the top priority early on. All through the night on Thursday, Nov. 9, while the nation’s focus remained on the butterfly ballot in Palm Beach, lawyers in the New York office of White & Case put together the first draft of the federal complaint. According to Flanigan, the team in Florida, including Terwilliger, Olson — who arrived in Tallahassee on Friday — and several attorneys in the Miami office of White & Case worked through the night Friday finalizing the motion. “I think it’s clear we were very concerned about the recount continuing. We were so concerned about it we were willing to take the PR risk,” says White & Case’s Curran. “Legally, there was very little downside, and it was a chance for a knockout punch.” Attempting to shift the legal front to the federal court system and the ultimate authority to the U.S. Supreme Court, rather than the Florida Supreme Court dominated by Democratic appointees, was clearly another Republican objective. Indeed, since Day One the GOP team saw the federal courts as the most favorable forum for its arguments. Even when the predominant threat seemed to be voter suits in Palm Beach Circuit Court, the White & Case team was exploring ways to remove the cases to federal court, Curran says. “Instinctively, a lot of us feel this case ought to be decided in federal court. However, there aren’t a lot of precedents with respect to this area,” he adds. “To a lot of us, it’s bizarre to think that a national election may be in the hands of an elected state court judge in Florida.” This irony did not go unnoticed: Bush, who consistently said he believed in handing power back to local officials, was now asking a federal court to take control over what is essentially a local matter: an election. “If you’re looking for consistency, you’ll never find it,” says James Portnoy, former counsel to Democrats in the U.S. House of Representatives and of counsel at D.C.’s Covington & Burling. “Republicans feel they would do better in federal court and they just need to get there.” The Bush team’s premise — that the manual recounting in selected areas of Florida violates protections guaranteed by the First and 14th amendments of the Constitution — came under fire last week from constitutional experts. “For the most part, it’s not a very strong argument,” says Georgetown University Law Center Professor Louis Michael Seidman. “It’s a really uphill battle to suggest this is a violation of equal protection without racial discrimination or overt efforts to intimidate voters.” Lawyers for Bush say they realized the suit was a “long shot,” but were encouraged by the Palm Beach County Canvassing Board’s Nov. 11 announcement changing the standards for evaluating ballots after hours of counting. Curran was at home watching television coverage of the Canvassing Board that first Saturday. He called Flanigan in Tallahassee. “For many of us, that crystallized the essence of our federal action,” Curran says. “It seemed to prove that the manual recount was arbitrary and capricious, literally, in that it was always changing.” Immediately, Bush lawyers got to work on supplemental briefs, presenting a video and transcript of the Palm Beach County hand count as supporting evidence. U.S. District Judge Donald Middlebrooks, a Clinton appointee, denied the Republicans’ request Nov. 13; then on Friday, Nov. 17, the U.S. Court of Appeals for the 11th Circuit also rejected the Republicans’ claims. But before those decisions came down, White & Case lawyers were already mobilizing on a different front. Over the weekend of Nov. 11 and 12, lawyers at the firm, as well as Carvin and Greenberg Traurig partner Barry Richard, turned their attention to Florida election laws. Curran and his crew in the D.C. office pulled an “all-nighter,” working from Sunday night until 8 a.m. on Monday, compiling a 50-state survey of key elements of election law. They focused particularly on statutes that spelled out filing deadlines for counties and election officials. Lawyers found two Florida statutes that addressed such deadlines — one stating that county returns “not received by the Department of State by 5 p.m. of the seventh day following an election … shall be ignored” and another allowing that late returns “may be ignored.” “It was clear that manual recounts were not going to be completed quickly, and we just knew that a 5:00 deadline on Tuesday was stated in two different places,” says Curran. Secretary of State Harris had also concluded that she could disregard any election results — manual or machine tallies — that didn’t arrive in her office by the end of business, Tuesday, Nov. 14. On Nov. 13, Harris met with Gore advisers Warren Christopher and William Daley to inform them of her intention to enforce a 5 p.m. filing deadline the following day. By this time, Harris had secured her own team of lawyers from Miami-based Steel Hector & Davis, including Miami managing partner Joseph Klock Jr. Steel Hector’s Donna Blanton, who also represents Harris, says firm lawyers have not been in touch with anyone on the Bush campaign. “We have advised her that we’re there to represent her only, and we’re not coordinating with anybody,” Blanton says. “Whether or not she personally has talked to anybody, any friends she might have who are in touch with the Bush team, that I don’t know.” The Gore team successfully appealed Harris’ victory on Nov. 17, sending the final decision on certification to the Florida Supreme Court. The state high court began arguments in the case Monday afternoon.

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