The presidency hangs in the balance

The Bush and Gore teams spend a long, long Sunday in a Tallahassee courtroom.

By Jake Tapper

Published December 3, 2000 9:08PM (EST)

Members of the Gore legal team were having a rough go of it in cramped, humid, lawyer-saturated Leon County Circuit Courtroom 3-D. Sunday afternoon, however, they finally got a break. If Judge N. Sanders "Sandy" Sauls ends up calling for a hand recount of any of Florida's ballots, the Gorebies can thank Gov. George W. Bush's legal team for calling John Ahmann to the stand.

Ahmann, one of the refiners of the punch card ballot back in the 1960s, was called in to slam the Al Gore team's "chad buildup" theory, the idea that the thousands of "undervotes" in counties where there are punch card ballots were due to mountains of chad beneath the holes.

But he ended up being a better witness for Vice President Al Gore's lawyers than either of the two witnesses from Saturday whom they'd called on for their own case. Gore attorney Steve Zack essentially got Ahmann to back the Gore premise that the punch card ballots are inferior and therefore there should be a hand recount.

The events surrounding Ahmann's testimony are an indication of the mad, slapdash nature of this legal proceeding -- for both sides. While preparing on Friday for the Saturday morning contest procedure, Zack deposed Ahmann, a Bush witness. Ahmann had been flown in from California by the Bush legal team to offer his expertise on punch card ballot devices.

Sometime during the deposition, Ahmann mentioned that he held a patent for a stylus used to punch through the ballot.

"I thought to myself, 'You know what? I bet he's got other patents,'" Zack says. He called Jennifer Altman, a partner at the Miami office of his 40-lawyer firm, Zack Kosnitsky, and asked her to find out everything she could about Ahmann's patents.

Zack isn't even sure when he called Altman, he says, the kind of memory lapse typical for both sides in this exhausting, constantly morphing story. "It was after the deposition," Zack says, "2 a.m. or 7 a.m. The days are kind of running together."

Altman says that the conversation took place on Saturday -- but when, exactly, she can't say. "There were a bunch of different searches being done," she says. "I was looking for anything on this guy. I spent a lot of time on the phone, on the computer, finding whatever research I could."

Finally, on Sunday morning, Altman came upon the U.S. Patent and Trademark Office's Web site. Bingo. She discovered that the Bush team's star witness -- there to reassure Judge N. Sanders Sauls that everything was totally cool with the punch card ballot devices -- held two patents for instruments designed to vastly improve said devices.

And in order to secure the patents, Ahmann slammed the original voting machines he was in the courtroom to laud. Ahmann's deposition before the patent office read like Zack had written it himself.

"The material typically used for punch board and punch card voting can and does contribute to potentially unreadable votes because of hanging chad or mispunched cards," Ahmann noted in his deposition of almost 20 years ago.

"If chips are permitted to accumulate between the resilient strips, this can interfere with the punching operations," he continued. "And occasionally, it has been observed that a partially punched chip" -- apparently '80s slang for "chad" -- "has been left hanging onto a card, after the punch was withdrawn, because the card supporting the surface of the punch board had become so clogged with chips as to prevent a clean punching operation. Incompletely punched cards can cause serious errors to occur to the data processing operation utilizing such cards."

Altman, a registered Republican who voted for Gore, was pleased with her discovery. But she was far more worried about how she could deliver it to Zack. She was in her Miami home; he was in a Tallahassee courtroom.

Zack's cellphone was off. Its mailbox was full.

"So I called the firm they were all working out of earlier in the week, and I begged them to please take it over to him," Altman recalls.

On Monroe Street, in the law offices of Gore attorney Mitchell Berger, a fax arrived from Altman. Jessica Briddle, a Gore recount committee staffer, grabbed the material and sprinted down Monroe Street to the courthouse. Near the elevators, she gave it to Gore attorney Jeremy Bash, who gave it to Gore attorney Andrew Shapiro, who gave it to another Gore attorney.

In the courtroom, while Ahmann is being sworn in, someone -- Zack's still not sure who -- puts the file on his lap with the typed note Altman had sent: "Steve, urgent, read now."

Zack does.

In Miami, Altman isn't even sure if Zack has gotten her fax. She is watching the trial on MSNBC, but it has switched to a commercial break or different programming or something.

So she switches to C-Span, where she witnesses Zack slamming Ahmann with his own words. Zack reads his deposition statements back to him, and Ahmann has to agree that while he had praised the punch card ballot device just minutes before, 20 years ago he swore that the machines had serious problems.

Zack next questions Ahmann about his stylus patent, which Ahmann says was designed to "align better" than the styluses used in Miami-Dade County, where Gore wants a hand recount.

"We wanted to reduce template wear, which will keep the stylus on the chad, so that they have clean punches rather than gouges, or pinholes, or hacking chad," Ahmann says.

In his final question, Zack asks him about the need for manual recounts after elections "when you have hanging chads ... lots of them because machines aren't tearing them off correctly."

To which Ahmann replies, "You need either reinspection or a manual recount if you have that situation, yes, you do." Precisely the opposite of what the Bush team wants him to say.

Altman loves it. "The person had gone up on the stand and said X when in fact in a sworn deposition before the U.S. patent office, he had said Y," she says. "Lawyers dream about impeaching someone that way."

Though GOP attorneys are quickly dispatched to the TV cameras to compare the old punch card ballot devices with other fully functional though not quite cutting-edge machinery -- windshield wipers without the "blink" mechanism, for example, or black-and-white televisions -- members of the Gore legal team are clearly delighted with Ahmann's testimony. And TV pundits start saying that maybe things have finally shifted Gore's way.

After Ahmann's testimony -- which the Bush team declines to prolong with a redirect examination -- a beaming Zack leaves the courtroom during a break and gushes to the media.

"We feel that's it," he says. "It goes to the fact that there was a problem with the machines. And it proves that in a close vote, you gotta hand recount the vote."

Since Bush attorney Phillip Beck has tarnished the Gore team's two witnesses as, respectively, an unqualified Democrat and a sloppy statistician led astray by lying Gore lawyers, the Bush witness may have bolstered the Gorebies' case for the hand recount -- a case that they themselves have had difficulty making effectively.

Zack doesn't necessarily agree with this assessment. But he offers, "I'm awfully happy that they called him. It was a critical admission."

Until Ahmann's testimony, the Bushies seem to be kicking proverbial arse. Led by Colorado attorney Beck -- who bears an eerie resemblance in manner and appearance to actor Kevin Spacey -- Bush's legal team devotes the day to punching chads into Gore's case for hand recounting the 10,750 "undervotes" from Miami-Dade County.

Calling to the stand -- in addition to Ahmann -- a statistician, a GOP observer of the Broward County hand recount and even a Florida voter who voted for neither candidate, Beck tries to discredit the Gore legal team's picture of an Election Day when "people are trying their level best to vote for Al Gore but they just can't get the stylus through," as he sarcastically puts it.

At 9:15 a.m., Beck calls Laurentius Marais, a former consulting Stanford Univeristy statistician with a teddibly erudite-sounding South African accent and bearing.

Marais handily sneers at many Gore claims as bad science and incomplete research, repeatedly dissing Saturday's testimony by a Gore witness, Yale statistician Nicholas Hengartner, implying that it was "slipshod and slapdash."

On cross-examination, Gore's lead attorney, rumpled brainiac David Boies, tries to slam Marais as the statistician equivalent of a hit man.

Boies paints Marais as a man who makes a living out of killing the testimony of other statisticians at the behest of evil interests, claiming that whatever he's hired to dismiss "does not meet your standards. For example, you testified against certain statistical analyses that linked lead paint to injuries in children."

At this, Beck jumps up and objects.

Boies "is trying to tar him," Beck charges, asking Marais to discuss "a case Mr. Boies thinks would be unpopular with the public." Beck asks Judge Sauls to direct Boies to stop dragging in other cases, to "admonish" Boies to take issue with Marais' methods and his methods only.

"Otherwise, all he's doing is grandstanding," Beck says.

"Your honor," Boies says, "I'm not grandstanding."

Though everyone here is a showman of sorts, including Beck and Marais, the issues are of tremendous import. In an effort to wipe out Bush's certified 537-vote margin of victory in Florida, the Gore team wants all of the Miami-Dade 10,750 "undervotes" to be hand recounted. About 1,750 or so were hand recounted, revealing Gore votes, and 9,000 have yet to be touched.

Gore's lawyers also want 3,000 or so "undervotes" from Palm Beach County to be hand recounted yet again, as they feel that the canvassing board there was too stingy with what did and did not constitute a vote.

The bar is high for contesting an election; Gore's team needs to prove that there might actually be votes in those 13,000 or so ballots. That's why the Gorebies called Hengartner, who argued Saturday that the undervotes were too numerous in Palm Beach to be the result of mere coincidence.

Statistician Marais goes after Hengartner's work, adding to the already vigorous cross-examination Beck made the Yale associate professor sit through Saturday. He says that projecting an additional 600 Gore votes in the remaining 9,000 Miami undervotes is "an inaccurate and unreliable projection because it is based on a faulty premise."

The sliver of the Miami undervotes that the Gore team is using to make its 600-vote projection is faulty, Marais argues, because the 1,750 ballots come from overwhelmingly Democratic precincts that went for Gore 75 to 25 percent. The county in general had a much slimmer margin of victory for Gore, 52 to 48 percent.

On cross-examination, Boies gets Marais to admit that he has no idea what caused the undervotes. He fails a bit, however, in his attempt to get Marais to admit that the item that Beck hammered Hengartner so hard for on Saturday wasn't relevant.

Saturday, Beck dramatically produced a statement Hengartner had sworn to for the Gore legal team for a separate Tallahassee court case. It utilized inaccurate information about the Nov. 3, 1998, Palm Beach County ballot, explaining a discrepancy in the vote total for the Senate race and the gubernatorial races with erroneous information.

Hengartner said that since the Senate candidates were listed in Column 1, and the gubernatorial candidates in Column 2, as with the 2000 presidential race there must be something wrong with the chads or the ballots or the machines or something reading the votes from Column 1. But it turned out that both races were listed in Column 1, even though Hengartner's sworn statement had referenced "a closer inspection of the Palm Beach County ballot."

Boies challenges Marais to state what relevant evidence there is in the 1998 ballot.

"It is evidence of a statistician who could not keep Column 1 and Column 2 straight," Marais says. Ouch! Guess Marais and Hengartner won't be sharing a room at the next statistician convention.

When Ahmann, who's at least 6-foot-6, comes to the witness stand, it's pretty clear whose side he's on. He's a rancher. He's wearing a bolo tie.

Through an easy round of questioning, Beck solicits Ahmann's opinion that the theory of chad buildup is poppycock. The punch card device gets knocked about so much, the mountains of chad would never remain just under the left side of the ballot, as is part of the Gore theory. "With a great deal of assurance I can guarantee you there isn't going to be a buildup under the No. 5 hole," Ahmann says, referring to the location of the Gore ticket on the Palm Beach County ballot.

Then there's the fact that chad is only one seven-thousandths of an inch thick. If the devices weren't cleaned for "eight to 10 years it might not cause any problem," Ahmann says.

When Gore attorney Zack steps up and asks Ahmann about the new punch card device for which he sought a patent nearly 20 years ago, Beck objects. He wants to see the information Zack's about to read. Since Zack only has one copy, Beck joins him at the podium. As Zack cross-examines Ahmann, Beck glides back to the Bush team's table, his arms behind his back. He and Bush attorney Barry Richard exchange knowing glances.

In the end, Ahmann makes a cogent argument for recounts -- an argument that at least seems to make sense to GOP officials in New Mexico, if not in Austin or Tallahassee. They have called for a full hand recount in that state, where Gore won by only 368 votes.

"There is, of course, no other way to determine the accuracy" than by a hand recount, GOP attorney Mickey Barnett wrote to a county judge on Bush's behalf. But here in Florida, it's a Bush of a different color, and Bushies equate the idea of a hand recount with the pending apocalypse.

Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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