FORT LAUDERDALE, Fla.—There are battleground states, and there is the battleground state. Here in the land that gave us the hanging chad, preparations are underway for the legal equivalent of Gettysburg. Manning the lines for John Kerry are hundreds of lawyers from New York—more than 1,000 New Yorkers have volunteered for election-law duty around the country—and they are determined to cede not an inch to the Bush-Cheney legal cavalry.
It is the greatest migration of New York legal talent since the civil-rights era, when idealistic lawyers rode buses to the South to defend the rights of African-Americans marching to put an end to Jim Crow. The memories that motivate them, however, are not from Alabama in 1962, but from this very state four years ago. Florida was ground zero in the closest and most controversial election in American history. Many expect a similar scenario this year.
“All of the elements that created the story last time are present here,” said David Boies, the New York litigator who argued Bush v. Gore before the U.S. Supreme Court in 2000. “You have an election that I think is again going to come down to Florida, you have a partisan Secretary of State that is using her power to advantage the candidates of her party, and you have a lot of legal issues swirling around.”
The parties disagree on the legal issues at hand, with Democrats crying suppression, Republicans worrying about fraud. But they agree that, in one crucial respect, it won’t be a repeat of 2000.
“The Democrats were shocked at the extent of our preparation and commitment last time,” said David Norcross, a former general counsel to the Republican National Committee who served as a spokesman for his party’s recount effort in Florida in 2000. “I expect we’re not going to benefit from that shock this time.”
Florida, because of its role in the 2000 election and because President Bush and Senator John Kerry have been tied in polls here, has received unprecedented attention from lawyers of both parties. Since early voting started on Oct. 19 at government offices around the state, Florida has offered a preview of a national legal effort that, the parties say, will include some 10,000 Democratic lawyers and a similar number of Republicans—enough to staff every voting precinct in the closely contested states. Already, early voting sites are staffed by a pair of lawyers, one Republican, one Democrat.
Seth Kaplan is one of the New York lawyers who traveled south to join the pro-Kerry forces in Florida. Earlier this week, Mr. Kaplan pulled his white plastic chair up to a card table in the Democratic Party’s windowless legal headquarters and began researching a case—a man sitting in a Pinellas County prison claimed that authorities were refusing to give him an absentee ballot.
“He was incarcerated for a misdemeanor, so [the prison’s stance] was totally inappropriate,” Mr. Kaplan said a few hours later in a nearby Starbucks, where he appeared dressed in the weekend-lawyer uniform of slacks and loafers, sunglasses pushed up into his thick, graying hair. He’d remembered an opinion from the state’s Division of Elections to back up the prisoner’s case, and passed it on to a Florida lawyer who would take the case to a state official.
“It’s a strategic and tactical puzzle that you try to solve,” Mr. Kaplan said. “It’s very similar in a lot of ways to a hostile takeover.”
The 49-year-old lawyer knows a little bit about hostile takeovers. Until June, he worked in a spacious office overlooking the Plaza Hotel as a partner at Wachtell, Lipton, Rosen and Katz, the New York mergers-and-acquisitions boutique firm with the highest per-partner compensation of any law firm in America. Now, the takeover target is Florida, and the legal team is based in this Fort Lauderdale “boiler room,” an open room in an anonymous office building not far from the beach, with low fluorescent lights on the ceiling and bad neoclassical murals on the walls.
Here, some 20 lawyers—many, like Mr. Kaplan, volunteers from top New York firms—are working to win Florida for the Democrats, vote by hard-fought vote.
And while New York’s Democratic lawyers have been largely excluded from the Kerry campaign’s inner circle, they’re playing key roles in the legal ground war, assisting voters and drafting documents for litigation.
The spokeswoman for the Democrats’ legal effort, Jenny Backus, said the program’s aim was to forestall litigation, not to spark it.
“We are operating under the Maytag-repairman rule,” she said. “We’re in the recount-prevention business.”
The Florida boiler room is run by a lean 33-year-old former president of the Harvard Law Review and former Supreme Court clerk named David Friedman. It’s one of the hubs of the Democrats’ legal operation, and it has sisters in the other battleground states. The two other largest operations are in Ohio and Pennsylvania. The Florida boiler room will be linked to a network of nearly 2,000 lawyers at polling sites on Election Day, and lawyers in Fort Lauderdale will communicate with Florida’s election officials through 67 lawyers in Florida, one per county. The boiler room will also be plugged into a national legal war room, part of an effort by Washington lawyers like Perkins, Coie partners Robert Bauer and Marc Elias, who lead a daily morning conference call, a Democrat said. The top state lawyers hold another conference call each day.
If 2004 turns into a repeat of 2000, complete with litigation and recounts, the party’s Washington headquarters has readied a handful of legal SWAT teams to sweep into battlegrounds, and hot-shot litigators including Mr. Boies and his Florida partner, Stephen Zack, say they’ll be ready. Mr. Boies said he expected court battles to focus on “provisional ballots,” which voters can cast if their names don’t appear on the rolls, and which may be litigated, one by one, after Election Day.
Meanwhile, Democrats are quietly preparing two battles: on defense, the boiler-room’s voter-by-voter fights; and on offense, the preparations for Election Day litigation.
Playing offense is a smaller-scale operation, a matter of being prepared. In Manhattan, Maria Vullo hasn’t had to give up her 26th-floor office, which looks across midtown to the Hudson River. She and a team of other lawyers from Paul, Weiss, Rifkind, Wharton and Garrison, with retired partner Jay Greenfield (all working on their own time), have been preparing forms, like requests for injunctions, to be e-mailed to Mr. Friedman. Ms. Vullo and other lawyers will then serve as ground-level poll-watchers on Election Day, Nov. 2. But their papers will be ready for filing in Florida or federal court at a few minutes’ notice.
“We’re doing preparatory work to ensure there’s no intimidation, that there’s no improper tactics to displace minority or disabled voters,” said Ms. Vullo, 41, who is known for high-profile pro bono work on behalf of Planned Parenthood. Citing attorney-client privilege, the Paul, Weiss lawyers wouldn’t discuss the content of the filings they’re preparing. Mr. Boies, however, offered a glimpse of those plans: “One of the things that we have improved on this time is that, if you have attempts to disrupt voting—you remember the roadblocks and traffic diversions—we will be ready to go into court,” he said, citing Democrats’ allegations from 2000.
Upstairs from Ms. Vullo, another Paul, Weiss partner, Jeh Johnson, general counsel to the Department of the Air Force under President Clinton, has been advising Mr. Kerry’s campaign on dealing with military and absentee ballots, Ms. Backus said. That’s one of the touchiest subjects for the Democrats—Republicans, typically concerned about procedural perfection, have been pushing to relax the rules for soldiers and accusing Democrats of trying to “disenfranchise” the military. Mr. Johnson, an early donor to Mr. Kerry and perhaps the New York lawyer best connected to the Kerry campaign, declined to discuss his work for the campaign.
Mr. Johnson and Ms. Vullo are likely appointees to a Kerry administration, candidates for federal judgeships and top legal jobs. Other New York lawyers—notably Skadden, Arps, Slate, Meagher and Flom partner Douglas Dunham and Fried, Frank, Harris, Schriber and Jacobson partner Laraine Rothenberg—led a fund-raising effort that brought in more than $2.6 million for Mr. Kerry’s campaign, Ms. Rothenberg said. Henry Berger, a top city election lawyer and counsel to the New York arm of the Kerry-Edwards campaign, has organized the volunteer effort that has already mustered the 1,000-plus lawyers to watch polling sites in swing states and trained them in mass sessions at Skadden’s midtown offices.
But to the distress of some New York Democratic lawyers (none of whom would speak on the record), the Democratic Party is relying for legal guidance largely on the Washington crowd—a group that, in the eyes of critics and of participants like Mr. Boies, was too political and not cutthroat enough in 2000. The New York litigators, whose arcane system of election law makes them the most experienced election lawyers in the nation, aren’t playing a major role in the Democrats’ legal strategy.
“I’m just going to be another set of hands out there,” said Mr. Berger.
Notably absent from the New York legal scene this time around is a real Kerry insider. Bill and Hillary Clinton, by contrast, relied on Yale Law School classmates and other New York legal talents like Bernard Nussbaum, the Wachtell partner who served as White House counsel for the first two years of the Clinton administration. This year, several New York lawyers said, there’s no Bernie Nussbaum: The Kerry campaign’s true legal insiders are the Washington lawyers staffing the campaign and, most of all, the candidate’s brother Cameron Kerry, a partner at the Boston firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, whose name is even emblazoned on the door of one office in the Fort Lauderdale boiler room.
Appearing at a Boca Raton synagogue on Oct. 26, Cameron Kerry said that “we are going to be prepared” for a recount.
Among the New Yorkers in this fight are the volunteers, some of whom, like Mr. Kaplan, have been working for weeks, and most of whom will spend the weekend before Election Day learning local election law in last minute swing-state seminars. But there are also freelancers, like Debevoise and Plimpton’s James Johnson, a former Clinton administration official who has been working on voting-rights lawsuits for independent groups in Florida since 2000.
Then there’s Mark Levine, a longtime partner at the New York office of Sullivan and Worcester, now of counsel there, who has spent the last month installing himself as a volunteer on behalf of the officially nonpartisan Voter Protection Project, a privately financed group formed to register largely minority voters, and racing to refile hundreds of voter-registration forms that were rejected because they were improperly filled out.
Return to Politics
Mr. Levine’s last dip into Presidential politics took place in 1968, when he took time off from New York University’s law school to work on Eugene McCarthy’s Presidential campaign. Now he’d found himself installed in the Miami-Dade County Board of Elections, persuading officials to share a list of some 6,000 people whose applications had been rejected for technical reasons. His age, 59, and “gray hair,” he said, made the persuasion easier. Making generous use of yellow highlighter and local volunteers, he created correction forms for those applications—even as campaign lawyers fought (unsuccessfully, so far) to allow some of the technical errors through—and mailed them out, with stamped return envelopes, to voters.
“I’m used to working through the night for bank clients,” said Mr. Levine, who added that his main client is the Bank of Scotland. “It’s the full service one gives to a client of never giving up and offering more than strictly legal advice.”
The counsel for the Voter Protection Project, Craig Kaplan—another New York lawyer who basically shut down his private practice for the election year—estimated that Mr. Levine put more than 1,000 voters back on the rolls, though the estimate couldn’t be independently confirmed.
The heart of the Democrats’ battle, however, is the party’s organized effort, centered in places like the Fort Lauderdale boiler room. It’s a grassroots push with a white-shoe gloss, where younger lawyers on leave or recently departed from New York’s big law firms and public-interest legal shops outnumber the gray-haired partners. Along with local volunteers, the former associates are the foot soldiers of the operation, which is already handling a few hundred calls a day on more than a half-dozen telephone lines at a time, lawyers said.
The boiler-room lawyers work long hours—from before the polls open at 8 a.m. until after midnight, in many cases. Two former associates at New York firms spoke by telephone to The Observer around 11 p.m. one recent evening, before getting back to work.
On one typical day, Genevieve Pope, 27, who just left a third-year associate’s job at Debevoise, listened to a complaint from an elderly, handicapped woman who had been told that her name had apparently been purged from the rolls in Palm Beach County. Ms. Pope conferred with the lawyer volunteering at the precinct and established that, by law, the woman should be permitted to cast a regular ballot after affirming her residence in an affidavit.
“A lot of people feel there’s not much you can do when the person tells them, ‘Look, you’re not on the list,’” Ms. Pope said.
The whole process took 10 minutes and added a likely vote to Mr. Kerry’s total.
Always, the battles are over the slim margins that could mean victory. On the first day of early voting, Sheldon Philp, a 2000 graduate of the University of Pennsylvania Law School who recently left his job at Simpson, Thacher and Bartlett in New York, got a call from a volunteer on the ground in Alachua County in northern Florida, one of a dozen counties under his supervision. The volunteer reported lines so long at the voting machines that some voters were leaving in impatience. Mr. Philp called the Democrats’ “lead counsel” for the county under a system the party has set up. That lawyer called the county’s Supervisor of Elections. The next day, the wait dropped to less than half an hour, he said.
“We’re putting in the hours you would put in at a New York law firm, full time, without getting paid. That’s the amazing thing,” he said.
According to a leaked draft memo from the Democrats’ Florida campaign, which was publicized by the Republican National Committee, the “extremely aggressive legal operation” has a budget of just $85,000—a few days’ billing at any of the lawyers’ private firms.
Here in flat Fort Lauderdale, among lawyers who say Al Gore should have been awarded Florida in 2000, the fragile legitimacy of the American President is palpable. Partisans on both sides have been praying for a landslide, just to restore public faith in democracy and to forestall a constitutional crisis that seems to linger on the near horizon.
“My hope is that whoever wins, wins by enough that we do not have the same kind of controversy that we had last time,” said Mr. Boies.
The lawyers in the boiler room are getting a preview of legal battles to come. If anything, the situation—in Florida, at least—is mildly heartening. None of the lawyers who spoke to The Observer reported seeing any of the voter intimidation that Democrats have warned is likely to occur, and that Republicans have dismissed as Democratic scare tactics. Florida Secretary of State Glenda Hood, a Republican, has, however, made technical rulings that favor her party to exclude some registration forms. Florida Democratic lawyers say Republicans haven’t even been challenging voters—something the G.O.P. has already begun on a massive scale this year in Ohio.
When a reporter asked the boiler-room lawyers about Republican outrages, a Democratic Party spokesman on the call, Brian Richardson, quickly chimed in, “There have been outrageous things.” But the most egregious action in Florida seems to have been an apparently illegal, but electorally meaningless, stunt in which a Republican operative switched thousands of Democrats’ registrations to Republican.
“I haven’t had any challenges reported in my counties,” Mr. Philp said.
Mr. Philp, like the other lawyers in the boiler room, is nursing bitter memories of 2000. He heard stories from his sisters who live in Florida, he said, of voters improperly struck from the rolls. For these New Yorkers, like many other city Democrats, the trip south was a way to escape the impotent feeling of living in solidly blue New York and casting a meaningless vote.
“I’d read The New York Times and my blood would boil,” said Mr. Kaplan, the former Wachtell partner. “And all you can do is sit in New York and contribute money.”
For Paul, Weiss’ Mr. Greenfield, 71, the southward and westward migration of the New York bar is a reminder of 1964, when he went south to New Orleans to fight some of the first legal battles over that summer’s Civil Rights Act out of the basement of a three-person black law firm.
Then, he recalled, there were real risks: He got death threats and warnings not to spend the night in town.
“‘Mr. Greenberg, if I was you, I wouldn’t stay here tonight,’” he recalls being told. “I said, ‘My name is Green field.’ And the guy said, ‘Mr. Greenberg, I wouldn’t stay here.’ I didn’t stay there that night—and I flew out, I didn’t drive out.”
For a generation of liberal lawyers, he said, this fall may be a defining political moment, the way the civil-rights battles of the 1960’s defined an earlier cadre.
“You went down for three weeks, and you talk about it for the rest of your life,” Mr. Greenfield said.