Too Close To Call

The Thirty-Six-Day Battle to Decide the 2000 Election by Jeffrey Toobin

by Mark Dionne


Take My Vote . . . Please

If you want to see someone roll their eyes, tell them you’re reading a book that chronicles the legal fight over the 2000 presidential election in day by day and occasionally minute by minute fashion. “No, really, it’s fascinating,” you protest and they look at you like you just stepped off a UFO because, come on, they saw the whole thing on TV.

The media saturation that surrounded the disputed election makes it easy for people to assume they know everything about it or to know for certain that they are sick of it. That’s a shame because Jeffrey Toobin’s new book Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election deserves to find a wide audience. Toobin begins on Election Day and ends on December 13th, the day of Gore’s concession. Using “hundreds” of interviews, Toobin, a Harvard-schooled lawyer and New Yorker staff writer, never comes across like someone drawing conclusions after bingeing on Crossfire. (All quotations from private conversations, Toobin writes, come from interviews with someone privy to the conversations, although no footnotes are provided.) Too Close To Call examines the private strategies and personalities that fueled this public fight and even in this limited time frame draws scathing portraits of both sides.

cover art

Too Close to Call

Jeffrey Toobin

The Thirty-six-day Battle to Decide the 2000 Election

(Random House)

The vicious and arrogant tactics of the Republicans might, but shouldn’t, surprise anyone. Toobin documents their hypocritical tactics during the contest, many of them already known. The party of states’ rights was the first to run to federal court. In fact, James Baker decided to get started in federal court before he even knew what the case would be about, simply to bring in the federal government. The Republicans understood that this was a fight and they operated to win, regardless of appearances. Hiding behind rhetoric of fairness, they wanted a judge to recuse herself because she was black. Mouthing words of democracy, they threw a Brooks Brothers hissy fit to shut down legally ordered vote counting. Republican lawyers and spinmeisters repeatedly claimed Gore’s selective recount violated the equal protection clause because it did not recount all of Florida, but then when all of Florida was ordered to recount they decided that this too was unfair on the basis of . . . well, it doesn’t really matter, on the basis of their guy might lose.

Toobin’s reporting, which is both detailed and succinct, also includes some surprises. A ballot in Duvall County caused even more confusion than the famous Palm Beach ballot, but no one knew it at the time. The biggest bombshell concerns the automatic recount. Often during the fight, Republicans were heard saying the votes had been “counted and recounted” due to Florida’s automatic recount law. “No one from the Gore campaign ever challenged this view. There was only one problem. It simply wasn’t true.” According to Toobin, Secretary of State Katherine Harris allowed eighteen counties, with one quarter of Florida’s votes, to skip the mandated recount. The complexion of the legal fight would have changed drastically if Gore took the lead just days after the election. (In fairness, many of the Republicans repeating this “counted and recounted” lie likely believed they were speaking the truth.)

It would be easy to feel sympathy for the other side. After all, Gore won more votes nationally, won more voters in Florida, labored to be calm and dispassionate during the recount while being smeared as a sore loser and ultimately lost the presidency. Yet, the Gore team comes off as tentative and naive. “Gore had seen his recount as a logic puzzle, to be solved after judicious reflection.” Constantly worried about appearances, Gore called off all street protests he could and never talked about race. The Democratic team consistently refused any legal maneuver that might seem too confrontational. They decided it would be unseemly to subpoena Katherine Harris, although she would have made a damning witness. Tellingly, Clinton—a born political fighter—fumed over Gore’s timid approach and neutral message of “Count every vote,” preferring something more along the lines of “We won and they’re stealing the election.”

No issue encapsulates these differences better than the absentee ballots. The Bush team launched a legal and PR campaign to include all of them, no matter if they were illegally tampered with, as in Seminole and Marin counties, or if they lacked the required postmarking. Rules, they would argue, shouldn’t stand in the way of voter intent. They would simultaneously argue in other courts that if a chad had not been fully dislodged from a paper ballot, the vote had to be thrown out. Rules were, after all, rules. Toobin writes, “In Florida, one often heard Republicans asserting that if people (usually black people) were too dumb to follow simple instructions, it was only fair to exclude their ballots. Apparently, though, if soldiers and sailors were too dumb to follow the rules, it was a patriotic duty to count their votes anyway.” In fact, the Bush team “even produced alternate forms for local lawyers to use—to include military ballots that lacked postmarks and to exclude civilian ballots that had the same defect.” Toobin points out that approximately half of the absentee ballots had suspiciously arrived on the last two days of eligibility.

Meanwhile, Gore wanted little to do with this argument. Some of Gore’s lawyers privately argued that waging the fight against faulty absentee ballots would force the courts and the Bush side to declare the intent of the voter supreme, thus unlocking many more Gore votes elsewhere. Gore, wedded to the “Count every vote” mantra, feared appearing like a hypocrite in front of editorial writers and political wonks. The Gore side never put their legal weight behind this issue and Joe Lieberman even went on Meet the Press to make the Republican’s argument for them, undercutting any fight from the Democratic side.

Toobin effectively contrasts the leadership styles of Bush and Gore. Bush left the arguments and struggles up to his fiercely loyal supporters. “Many people with the Bush campaign had known their candidate for years, and adored him; several had staked their entire careers on victory in 2000.” Gore remained in constant contact with his team, overseeing strategy, looking into details and inspiring much less loyalty. The Gore side consisted of lawyers who had never met the candidate and team players who had “awkward” relationships with their man, including one who “had been all but fired by Gore in 1999” and others who had recently worked for Bill Bradley.

Toobin also details the way Florida’s political infrastructure favored the Republicans, from Governor Jeb Bush to Secretary of State Katherine Harris—who resembles nothing so much as a bobblehead, so airheaded and eager to nod at every request from the Bush camp—to Democratic politicians who would rather skip town than be seen with Gore. On the day after the election, James Baker predicted that it would all end at the Supreme Court, where Bush maintained his home court advantage. Like a boxer with a frightened opponent and a rigged panel of judges, the Bush team just had to throw out enough punches knowing their buddies would decide some of them hit. Near the end of Too Close to Call, Toobin provides an excellent primer on the flaws of the Supreme Court’s Bush v. Gore decision, which, like many of these subjects, could support its own book.

The dozens of people and numerous courtrooms make Too Close to Call sometimes a bit choppy. Although minor players sometimes get lost, Toobin makes all of the legal issues clear even to the layman. There is also entertainment of the weird and grim variety here as Florida politics live up to the wacky reputation earned in Carl Hiaasen novels.

The definitive book on the 2000 presidential election has not yet been written. Although I found his book fair and unbiased, Toobin clearly had more access to the Gore side in his research. The most important figures in the recount struggle, of course, were the five Supreme Court Justices who appointed our current president. They do not give interviews. George W. Bush did not win the election, but he won the recount battle and that story is compelling, sad and fascinating. Although more must be researched and written about this story, Jeffrey Toobin’s Too Close to Call is a great place to start, even if you thought you were sick of it.

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[Ed. note: Interested in the 2000 Election? See also PopMatters’ review of Deadlock: The Inside Story of America’s Closest Election. The complete review available here.

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