The Dirty Secret (16 page)

“Let’s get the lawyer on the phone,” the campaign chairman said, asserting
de facto
control over the discussion. Several people around the oval mahogany table nodded, including Wilson. Thus, the meeting began.

A black phone sat at the center of the table. The campaign chairman sat directly across the table from Vincent and Bowen, and he activated the speakerphone and dialed the number.

Two rings later, a woman picked up the line. “Hello?”

“Susan!” the campaign chairman chirped. “We’re all here. How are you doing?”

“I’m well,” Susan Mathis, the campaign’s lead attorney in West Virginia, replied. “Still irritated about how things went in Williamson yesterday, but I’m sure we all are.”

“Well that’s what we want to discuss. To see what we can do to turn things around there.”

“Are we out of luck in the other close states?” the woman asked.

“Yes,” the campaign chairman answered. “Our only hope of winning the election now is to find a way to win West Virginia.”

Mathis paused. “I understand. So what do you need from me?”

“Susan, Tyson Vasquez is here with us. You know he’s been overseeing our activities in West Virginia, so I’ll let him take over. Tyson?”

Vasquez was one of Wilson’s closest advisors. A former congressman from California, Vincent knew the man had made a fortune in the private sector after leaving office by working for a telecom company whose initiatives he had supported while in Congress. His dark complexion and thick mane of coal black hair reflected his Hispanic heritage. Although relatively short at five-feet-seven, he was phenomenally photogenic, having been named to one popular magazine’s Most Beautiful Americans list three years running.

Vasquez scooted closer to the table and leaned toward the speakerphone. “Hey, Susan, this is Tyson here. Can you hear me?”

“Hi, Tyson. I can hear you just fine.”

“Good. As you know, we filed recount requests with every other county in the state. Those requests were filed within 48 hours after the counties’ canvasses ended, as required by statute, and you need to file one in Mingo County no later than noon tomorrow.”

“We’ve already turned it in. We didn’t want to take any chances with it.”

Vasquez raised his bottled water and took a drink. “Excellent. We don’t want to make the same mistakes Al Gore made in Florida back in 2000.”

“What do you mean?” Mathis asked.

Vasquez glanced over at the short, bespectacled man with a receding gray hair line who was sitting to his left. “I’ll let Evan Rothman explain it. He’s a professor at Georgetown’s law school and our general counsel. He’s also the guy who’ll argue this case in front of the Supreme Court if it ends up there.”

Rothman cleared his throat. “Good evening, Susan. We requested recounts in every county in the state because we want to follow
Bush v. Gore
as closely as possible. There were two main reasons why the Supreme Court overturned Florida’s recount procedures in 2000:

“First, the Court felt there wasn’t any
uniformity
in Florida’s recount procedures, which varied widely from county-to-county, and that raised the possibility some citizens’ votes were being treated differently than others in violation of the Equal Protection Clause.

“Secondly, the Court bluntly noted that individual American citizens do not have a constitutional right to vote in presidential elections. Under Article Two, Section One of the Constitution, it’s the individual
states
that are empowered to
appoint
the ‘Electors’ whose ballots actually determine who wins the presidential election.”

“The Electoral College,” Mathis interjected.

“Precisely. The Electors meet in their individual states on the first Monday following the second Wednesday in December to cast ballots for the offices of President and Vice-President. In
Bush v. Gore
, the Supreme Court said the Florida recounts could not be wrapped up in time for the state’s Electors to cast ballots in the Electoral College. Or, more specifically, no later than six days before the Electoral College was scheduled to convene that year.”

“I remember that,” Mathis said. “It had something to do with a ‘safe harbor’ provision in federal law.”

“Yes,” Rothman replied. “That would be Title Three, Section Five of the U.S. Code. The Safe Harbor Provision notes that although the constitution vests each individual
state
with the authority to determine how its votes in the Electoral College will be cast, the states must make that determination no later than six days before the Electoral College meets. If a state’s election procedures aren’t completed by that deadline, the state runs the risk of losing its right to cast ballots in the Electoral College altogether.”

“Wow,” Dick Bowen blurted. Senator Wilson and her husband both shot him disapproving looks, and he meekly raised his hand and grimaced in apology.

“I see,” Mathis said. “So when does the deadline fall this year?”

Rothman peered down and ran his finger along his notes. “The Electoral College ballots will be cast on Monday, December 15th. That means the deadline for state election law contests to be concluded is Tuesday, December 9th.”

“That’s exactly three weeks from today,” Wilson observed.

“Not a lot of time,” Rothman conceded. “So we have to make sure the procedures we follow in challenging the results in West Virginia are both
uniform
throughout the state and
completed
within the next 21 days.”

The room was silent for about ten seconds until Susan Mathis’s voice emanated from the speakerphone. “So whatever we decide to do, we have to do it quickly.”

“Yes,” the campaign chairman said. “And since you’re our expert on West Virginia’s election laws, can you tell us what happens now?”

“Basically, every county’s recount must be conducted in accordance with the Secretary of State’s regulations. Tyson has assigned lawyers to work in every county courthouse during the recount just like the canvasses. If they think a county commission is not following those procedures, they will immediately call the Secretary of State’s office to rectify the situation.

“In order to impose some sort of order on this process,” she continued. “The Secretary of State has asked all 55 counties to commence their recounts next Monday the 24th. It is possible recounts have been requested in other races on the ballot, but this process will be focused on the presidential race.”

There was a brief pause on the lawyer’s end of the line. Vincent figured she was flipping through her papers or getting something to drink. In either event, Mathis picked up where she left off. “Each county’s recount will be conducted by teams of two people – one Democrat, one Republican – assigned by the County Clerk. Aside from two counties that still use paper ballots, the other counties all use either optical scan ballots or direct-recording electronic voting machines, which are known as ‘DRE’ machines for short.”

“I’m familiar with optical scan ballots,” the nominee interrupted. “That’s where you shade in circles like on the old SAT exams. But what exactly are these DRE machines?”

“DRE machines are computerized systems that typically use touchscreen monitors to ‘directly’ record a person’s ballot electronically,” Mathis replied. “Instead of using a computer to interpret optical scan ballots and tabulate the votes, a DRE machine cuts out the middle man by immediately processing and storing the votes on the machine’s hard drive or memory card.”

“Ah,” Senator Wilson said, “that’s why there was such a stink about the memory cards in Mingo County. Go on.”

“Thank you, Senator. So recognizing that 53 of West Virginia’s 55 counties use some sort of machine to tabulate their votes, the recount will essentially consist of these teams of two people hand counting the ballots in 5 percent of each county’s precincts.”

“Optical scan ballots are one thing, but how can you
hand count
votes that are directly recorded onto a machine’s hard drive?” Vincent asked.

“You can’t,” Mathis conceded. “Not exactly, anyway. The law requires touchscreen machines to be equipped with what is called a ‘voter verified paper audit trail’ or VVPAT for short. Theoretically, every button pushed on the touchscreen while the voter is standing in the booth is printed on a roll of paper inside the machine that looks like what’s used in cash registers. When one person finishes voting and presses a button on the touchscreen to submit their ballot, two things happen: One, the data reflecting that person’s ballot is imprinted on the machine’s memory card. Secondly, the VVPAT is imprinted with a heading that reads ‘End of Ballot’ before it rolls forward in preparation for the next voter to use the machine.”

Senator Wilson’s eyebrows creased. “What if a voter presses a button to vote for one candidate and then changes their mind? Wouldn’t that mess things up?”

“It’s not supposed to,” Mathis replied. “The VVPAT would show the voter canceled his first action. Plus the digital data isn’t imprinted to the memory card until the voter goes through the entire ballot and
confirms
they want to ‘drop their ballot in the box’ so to speak.”

“Regardless, I still don’t understand what a recount of the data on those memory cards is going to accomplish,” Governor Vincent reiterated.

Mathis sighed loudly. “Mister Governor,” she said slowly. “The recount does not involve the data on the memory cards at all. Instead, the statute calls for the teams to hand-count the individual ballots as they are printed sequentially on the
paper trail.
”

“Ah! That makes more sense. But what happens if the figures reflected on the paper trail don’t match up with the computer’s calculations that were printed on Election Night?”

“By law, the county would use the paper trail recount figures in its final returns. The calculations printed on Election Night would be thrown out.”

Governor Vincent watched Tyson Vasquez lock eyes with Bowen and nod his head once. Bowen smirked and nodded in return.

“So how do the counties decide which precincts are recounted?” Wilson asked.

“It’s totally random. Basically, they throw the precincts into a big hat, pull out a number of slips which equals 5 percent of the total precincts in the county and use those precincts for the recount.”

“But what about the allegations that African American voters were intimidated into staying away from the polls in certain parts of West Virginia?” Senator Wilson asked. “How does that factor into the process?”

“Unfortunately, it doesn’t. Not at this stage, anyway. During the recount, county commissions can only consider evidence ‘obtainable from the viewing of the election material as it exists or from relevant evidence from the election commissioners, poll clerks or other persons present at the election in which the recount is being conducted.’ So unless you have poll workers testifying the intimidation occurred, testimony regarding issues like voter fraud or intimidation would only come into play, if at all, after the recount is over during a subsequent procedure known as an election
contest
. But for now, they’re irrelevant.”

“Okay,” the campaign chairman said, “we’ll take it one step at a time. So for now, we need to focus on the recounts which begin next Monday, correct?”

“Yes,” Mathis confirmed.

“Fine. We’ll worry about those other issues later. In the meantime, does anyone have any other questions for Susan?”

No one spoke up, and both Senator Wilson and her husband actively shook their heads from side-to-side. “All right, then. Tyson will be in touch with you tomorrow, Susan. Thanks!”

“You’re welcome. Call me if you need anything else.”

“We will,” Wilson said. “Thanks for all your help and keep up the good work.”

“Thank you, Senator.”

The campaign chairman pressed a button, ending the call. “All right, Tyson. We all know what’s going on now. Tell us what you need.”

Vasquez tapped his designer pen on the table. “First, we need money to fund this recount. It isn’t cheap to pay lawyers to work around the clock in 55 counties.”

“Not a problem,” the campaign’s finance chairman responded. She was a woman in her mid-fifties with a perpetually hard look on her face. “Our base is fired up, and they don’t want to lose. Contributions keep pouring in, and West Virginia is where we must focus now.”

“Good. Secondly, Mr. Bowen and I need to coordinate some of our more
unconventional
tactics.”

“Whoa, whoa, whoa!” Senator Wilson’s husband exclaimed. “Stop right there. Melanie, the kids are calling for us upstairs.”

“You’re right, honey,” the nominee replied calmly. “I only have so much time and I must entrust some aspects of this campaign to others. Folks, if you’ll excuse us, we’ll leave the remaining details in your competent hands.”

With that, the senator and her husband rose from the table and left the room without even saying “goodbye” to the others.

“I need to take off, too,” the campaign chairman said. Facing the finance chairman and the campaign’s general counsel, he added, “I’m heading back to Georgetown, so if you guys want a ride, the bus is leaving.”

The law professor and the hard-looking woman stood up and followed the campaign chairman as he passed through the French doors and exited the dining room.

“Personally, I need to hit the head,” Governor Vincent added. “Dick, I’ll be in the car.”

“Gotcha,” Bowen responded. “See ya in a few.”

The governor patted his advisor on the shoulder as he headed out, closing the doors behind him. “Looks like it’s just you and me now,” Bowen said to Vasquez.

“What did you expect?” Vasquez quipped bitterly. “Everybody else has their panties in a bunch, worrying about ‘plausible deniability.’ That just leaves the two of us to get our hands dirty and actually
win
this damn election.”

Bowen leaned forward, clasping his bratwurst-looking fingers together like a church steeple on the table in front of him. “Amen, brother. What do you say we get down to business?”

CHAPTER 29

ST. MARYS, PLEASANTS COUNTY, WEST VIRGINIA
WEDNESDAY NOVEMBER 19, 10:00 A.M.