WINNING FLORIDA IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII How the Bush Team Fought the Battle Robert Zelnick HOOVER INSTITUTION PRESS Stanford University IStanford,California WINNING FLORIDA How the Bush Team Fought the Battle The Hoover Institution on War, Revolution and Peace, founded at Stanford University in 1919 by Herbert Hoover, who went on to be- come the thirty-first president of the United States, is an interdiscipli- nary research center for advanced study on domestic and international affairs. The views expressed in its publications are entirely those of the authors and do not necessarily reflect the views of the staff, officers, or Board of Overseers of the Hoover Institution. www.hoover.org Hoover Institution Press Publication No. 500 Copyright © 2001 by the Board of Trustees of the Leland Stanford Junior University All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or other- wise, without written permission of the publisher. First printing 2001 07 06 05 04 03 02 01 00 9 8 7 6 5 4 3 2 1 Manufactured in the United States of America The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48–1984. Library of Congress Cataloging-in-Publication Data (Application for CIP data has been filed with the Library of Congress.) ISBN 0-8179-2882-0 Contents Acknowledgments vii CHAPTER 1 Drawing the Battle Lines 1 CHAPTER 2 Defining the Issues 21 CHAPTER 3 Rewriting the Law 41 CHAPTER 4 Fighting the Ground War 55 CHAPTER 5 Vacating the Florida Court 81 CHAPTER 6 Surviving a Scare 93 CHAPTER 7 Fighting the Contest 103 CHAPTER 8 Losing in the State Court 123 CHAPTER 9 Shutting the Door 143 Addenda 165 Index 175 Acknowledgments I should like to extend my deepest gratitude to John Raisian, Director of the Hoover Institution, for his confidence and generosity in supporting this project. Florida was flooded with reporters during the Bush-Gore post-election battle, and it has been flooded since then with authors. Despite the crowd, my thinking was that there was a good short book to be written about the strategy and tactics of the side that ulti- mately prevailed in a battle that was like playing chess to a metronome. Whether I was right, the reader can judge. But without John’s support, there would have been no project. Thanks also to Associate Director Richard Sousa, who was always reachable, and always prompt to provide needed assistance. I am grateful for the work of Patricia Baker, Executive Ed- itor of the Hoover Press, and the staff at Publication Services in Champaign, Illinois, for highly professional editing under a rigorous deadline. My daughter Eva, an associate producer with Fox News in Washington, and my daughter Marni, who graduated this past June from Dartmouth, provided both quick and profes- sional research assistance. Maybe sending them to college wasn’t such a bad idea after all. vii viii Acknowledgments Megan Cooley, one of my graduate students at Boston University, also provided research assistance, also under dif- ficult deadline pressure, and at a time when she was a bit under the weather. I am deeply appreciative of her efforts. Many of the lawyers, and a few normal people, who fought gallantly in Florida, gave freely of their time in shar- ing their recollections with me and enlightening me as to how the various Florida operations meshed, and sometimes mashed. There are too many to mention by name, but some will be obvious to the reader. Because the thrust of this study was on the internal delib- erations of the Bush strategists in Florida, I spent relatively little time with those on the other side. I would, however, like to extend my appreciation to John Hardin Young, a sen- ior Gore operator and coauthor of The Recount Primer, a key instructional manual for the Gore forces. Mr. Young of- fered some candid comments when we spoke and also sent a copy of his hard-to-get primer. Thanks also to Senator Joseph Lieberman, a man I have admired for years, who is justifiably held in the highest re- gard by those who know him best. We had an interesting chat about the campaign during a business trip to Europe, and I much look forward to his comments about this book. Finally, my most sincere thanks to my Boston University students for putting up with their professor, who spent most of the past semester crashing on this project while carrying the traditional three-course schedule. I hope my evaluations didn’t suffer. And it is to them that I should like to dedicate this book. CHAPTER 1 Drawing the Battle Lines Like most political intimates of George W. Bush, Ben Gins- berg, the general counsel of the Bush campaign, shared the pendulum-like swings of election night emotion in Austin, Texas. First came the tears as the three key battleground states—Michigan, Pennsylvania, and Florida—all seemed to fall into the Gore column. Then came the hope as Randy En- right, perhaps the soundest GOP consultant in Florida, and state chairman Al Cardenas assured the Austin people that the networks were wrong, and the state was still in play. Then that huge collective sigh of relief as the news organiza- tions acknowledged their mistake and put Florida back into the “too close to call” category. Then the celebratory shouts, the hugs and high fives as the networks declared Bush the winner. The concession phone call from Gore. The drive to the capitol for the declaration of victory. Ginsberg, who early in his professional life worked as a re- porter in western Massachusetts, and now puts bread on the table by lobbying and lawyering with the well-wired Patton Boggs firm in Washington, never quite made it to the capitol that night. En route came the phone call from headquarters telling the motorcade that Florida was again “too close to call” and that Gore had phoned Bush a second time, now to 1