Josh Marshall

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Talking Points runs with some breaking news! The Florida Supreme Court will announce a decision tonight. Not tomorrow, tonight. Apparently they've given the heads-up to the networks. But the networks aren't supposed to tell anybody. Apparently the delay has to do with a broken xerox machine in the court, which has slowed things up.

Hey, that's what I'm hearing

As of about 7 PM on Tuesday, Talking Points heard (from his sources on CNN and MSNBC) that Palm Beach County had given Gore a measly 3 more votes, with about 1/5 of the precincts reporting. Broward had given the veep a semi-respectable 118 votes more with all the precincts reporting. And Miami-Dade had given Gore 114 more votes with 99 out of 614 precincts.

Let's hear it for Miami-Dade! These guys are really pulling their weight!

(Actually the vote woman on MSNBC says those hundred-odd precincts already reporting lean even more Democratic than the rest of the county. So maybe it's not as good as it sounds.)

Of course, the real issue is dimples. And which counties have how many 'undervotes' - that undiscovered country of hidden suffrage? Palm Beach has about 10,000; Broward's got between 1,000 and 2,000; and Miami-Dade has some 10,750.

So, hey, there's plenty of work to be done, assuming the Florida Supreme Court doesn't completely shut Gore down.

Oh yeah, one other thing. If you include the already counted Palm Beach ballots with dimples Gore picks up another 301 votes.

So Gore's not doing that badly. But obviously it's going to come down to whether or not he gets his dimples.

From real Gore campaign sources I've heard that the whole race will come down to 100 or 150 vote spread either way. Unfortunately for them they're not sure which way.

Talking Points is also wondering what's up with retiring Senator Bob Kerrey. Normally Kerrey is a bit of spoil sport, especially in partisan terms. And for years he could be counted on to trash and take potshots at the Clinton-Gore administration. (In fact, Talking Points has been trashing Senator Kerrey in print for a couple years now - example one, two, and three.)

But all of sudden he's Al Gore's biggest pit bull. Today the Gore team had Kerrey (a Vietnam vet who lost the lower part of one leg in the war) down in Florida taking the fight to the Republicans on the military overseas ballot issue. Apparently, a bunch of those overseas military ballots had problems besides not being postmarked. No signatures, no witnesses, etc.

Senator Kerrey's line: if you're in the military, you're supposed to follow the rules.

I could get to like this guy!

P.S. Talking Points would like to make clear that he is actually quite pro-military, and something of a foreign policy hawk. So no emails saying he's ganging up on the military!

Finally, finally, finally someone has the good sense and courage to point out how hideously unfair and outrageous those charges are about the Gore campaign trying to deny soldiers their right to vote. (A few days ago Talking Points said the Republicans were playing the Sturm und Drang, Stab-in-the-Back, Last-Days-of-the-Weimar-Republic card. He thought that was pretty clever. But it was too generous, because too jocular.)

Listen to Florida Democrat Peter Deutsch last night on Crossfire:

Let me just talk a little bit about the whole, I guess, spin from the Republicans about -- which has been to me the absolute most -- the worst statements I have ever heard probably in my life about anything. I mean, almost a blood libel by the Republicans towards Al Gore, saying that he was trying to stop men and women in uniform that are serving this country from voting. That is the most absurd thing and absolutely has no basis in fact at all.
Alright, alright, not the most articulate guy in the world. But you get his point!

"...almost a blood libel." That's pretty strong stuff. Strong, but not too strong. Because it's true.

(Deutsch can get away with this statement, in part, because he's Jewish. But so is Talking Points; so he gets a pass too!)

You don't just toss around charges that the possible next president of the United States is conspiring to take the vote away from American soldiers overseas. Given the volatility of the moment and the divisions already existing in American society it really is almost like a blood libel. Almost.

People in the press should have called the Bushies on this rather than treating their new line of attack as if it were nothing more serious than the dissing and trash-talking one hears on the Jerry Springer show.

Talking Points was going to leave it at that. But then he read Tom Friedman's column in the NYT this morning. Friedman said:
Our armed forces, the courts, the federal government - these are the nonpartisan institutions we need to hold our country together once there is a partisan outcome to this election. It was out of line for Ms. Hughes to imply that our armed forces are pro- Republican and that the Democrats were trying to prevent them from voting. Ms. Hughes might as well have called Mr. Gore a traitor. It would be like Mr. Gore accusing Mr. Bush of bigoted motives because he resisted recounts in counties with heavy black and Jewish populations. You just don't talk that way about the man who might be our next president.
Talking Points couldn't have said it better himself. I guess that's why Friedman is on the Op-Ed page of the NYT and Talking Points … well, just has Talking Points.

Talking Points understands that every self-respecting post-election presidential candidate these days needs his surrogates. But why can't George W. Bush at least get political hacks from Florida to make his case for him?

The Dems have Reps. Peter Deutsch D -Fla. and Robert Wexler D -Fla., two congressmen from the Palm Beach area, spinning for them. But who's Bush got? Rep. John Sweeney, R-N.Y who told the AP today that "Miami-Dade has become ground zero for producing a manufactured vote" and Rep. David Hobson, R-Ohio who called the balloting there "a joke on our democracy." What's the deal here? Why can't Bush get any home grown talent?

And what's with Marc Racicot, the governor of Montana? Since when is this guy Bush's press secretary? What happened to Karen Hughes? Aren't the folks in Montana starting to wonder why their governor has set up residence in Austin, Texas?

Is this the kind of scut work you have to do to get an appointment in the new Bush administration?

Talking Points is not a lawyer (though he did take the LSAT during one very misguided summer in the mid-nineties). But he feels qualified to offer some advice to Joseph Klock, the lawyer who represented Florida Secretary of State Katherine Harris today before the Florida Supreme Court.

1. When addressing the Court (especially a potentially hostile one), refrain from sassing, getting in the face of, talking over, or in other ways mouthing off to the justices. While this seems like a sure-fire strategy, it sometimes produces negative results.

2. When presenting arguments, refrain from interjecting or ending statements with gratuitous throw-away lines commonly used on Hardball. Free form prose poems about chads ("hanging chads, banging chads, pregnant chads, schmegmant chads, etc.") are particularly to be avoided.

3. Avoid legal arguments which imply that the vice-president's campaign would actually be in a much better position to lodge complaints once the election is certified and his opponent is elected.

Talking Points really liked Juliet Eilperin's and Eric Pianin's article in today's Washington Post about how furious Republicans might cripple a potential Gore presidency. (Actually, Talking Points likes everything Eilperin writes; he doesn't know the Pianin guy.) But maybe this is a moment for a reality check.

No doubt the Republicans will be furious with Gore if he wins; they'll do all sorts of nasty things because of it; they'll probably try to obstruct his agenda, and so forth. And this would be in contrast to …?

The get-along-go-along free ride they've given Bill Clinton?


Hardcore Republicans (and not a few soft-core ones) never accepted the legitimacy of Bill Clinton's presidency either. And while no one can be happy about the sour feelings which will result from this mess (however it turns out), Democrats shouldn't be bullied or intimidated by Republican threats, or mau-maued into inactivity should Gore win Florida.

There's a lot of talk about rejected military absentee ballots, but Talking Points still isn't convinced that a lot of civilian (and thus more likely Gore) absentee ballots weren't rejected in Broward, Miami-Dade, Palm Beach and other counties. Yesterday's New York Times says that "Lawyers for each party made sure that each envelope containing civilian ballots met the stringent requirements of state law, including having the voter's signature and the date, with the signature crossing the seam where the ballot is sealed, and having the signature of a witness who is either a notary or a registered Florida voter [italics added]."

But a Talking Points reader in Israel, who tells me he helped others navigate the paperwork of absentee-ballot-dom, says there was never any mention of this requirement in the absentee ballot instructions. And he actually seems to have some proof to back up his claim. The Federal Voting Assistance Program website has instructions for obtaining and completing overseas absentee ballots. And the site has information for how to deal with absentee ballots for citizens of each state - information gathered from the state authorities.

But on the Florida section of the site there is no mention of needing a notary or a registered Florida voter to witness your ballot.

Now Talking Points has to admit he got pretty confused reading this material. It took him a while to realize that a good bit of the information on the site applies to the card you send to get your absentee ballot.

But ... but the document does clearly state: "When returning a voted ballot, the certificate on the return envelope must be witnessed by one person over the age of 18. The name and address of the witness are required on the certificate."

No notary, no registered voter Floridian required!

Who's responsible for this screw up? The Feds or Katherine Harris? Did it say something different on the absentee ballots themselves? And how many civilian votes got tossed because of it?

P.S. Talking Points has to admit that he's still a little confused about this; but he thinks he got it right.

An update on how Gore's doing in the recount: according to CNN, with roughly 30% of the precincts counted in Palm Beach County, there are some 1000 ballots which have been set aside as under dispute. Those will later be reviewed by the canvassing board and, in all likelihood, later by a court. What does that mean? That a Gore-friendly resolution of the chad question could well give the veep enough votes to move ahead of Bush.

The new Republican line is that all the mess going on down in Florida is the result of the Democrats' decision to "depart from the rule of law." (I'm calling this the new Republican line because they're all using it on the Sunday morning shows - especially Sen. Fred Thompson on This Week.) But wait a second: aren't law courts the font of the "rule of law"? I know there a difficulties aplenty with getting elections into the courtrooms. But for serious "rule of law" theorists the rule of law is all about independent courts, an independent judiciary, and - yes, god forbid - lawyers. Process, process, process! Procedure, procedure, procedure! Give two hypocrite points to the GOP on this one.

Several Talking Points readers have pointed out the answer to the apparent contradiction noted in last night's post: i.e., why the Republicans are going ballistic over the hand-recounts at precisely the moment when those counts don't seem to be going as well as the Democrats had hoped.

The answer? These unofficial estimates coming out of Broward and Palm Beach don't include a growing stack of disputed ballots with dimpled chads and pregnant chads and so forth. Depending on how the Florida Supreme Court rules those ballots could throw the count decisively in Al Gore's direction. So, yes, the Bush folks do have reason to be worried.

One more question. The new Republican battle cry is over these tossed out military absentee ballots that don't have postmarks. The GOP is really sharpening the blade on this one - trying to characterize this as a Dem effort to disenfranchise soldiers. (Ahh … what a responsible thing to say.) But according to the New York Times, "In counties carried by Mr. Bush, 29 percent of the overseas ballots were ruled invalid, but in counties carried by Mr. Gore, the figure was 60 percent." It sounds like Gore's ox is being gored more than Bush's. Are those tossed out ballots in the Gore counties military ballots or are they civilian ballots? That's the question Talking Points hasn't heard the answer to. The Times article seems to imply that the thrown out ballots in the Democratic counties were military ballots, but doesn't quite say so.

Do you notice something odd? The Bush campaign today launched a ferocious attack on the hand counting procedures being used in Palm Beach and other counties in southern Florida. They're no longer challenging hand-counting as inherently unreliable and perhaps open to 'mischief,' they're leveling explicit charges of ballot tampering and fraud.

The Bush folks are also charging the Democrats with plotting to toss out military absentee overseas ballots because they lack postmarks. Bush surrogate, Montana governor Marc Racicot charged that "the vice president's lawyers have gone to war in my judgment against the men and women who serve in our Armed Forces. In an effort to win at any costs, the Democrats have launched a statewide effort to throw out as many military ballots as they can [italics added]."

(This, you might say, is the Bush team's effort to play the Sturm und Drang, Stab-in-the-Back, Last-Days-of-the-Weimar-Republic card.)

The implication of this quickly escalating rhetoric is pretty clear: the Republicans are scared to death of what might be found in those hand counts.

The problem is that the hand counts don't seem to be going that well for the Democrats. At least that's what CNN and the rest of the nets seem to be reporting. A hand recount of a third of the precincts in Broward county yielded only 59 new votes for the vice-president. A Democratic member of the Palm Beach canvassing board said he wasn't "seeing much of a change" in the vote totals so far in the recount in his county. Gore's got to get a thousand votes to catch up to Bush; and it doesn't look like it's going that well.

So what gives? What does the Bush campaign know that the rest of us don't?