Bush Lawyer Ginsberg on HBO's Recount: GOP Won Reality, Dems Win Movie

Republicans won the recount. Democrats won the movie. This should not surprise us.

That said, HBO's two-hour Recount does a terrific job of accurately capturing the tension both sides felt during those wrenching 36 days and conveying how rapidly and unpredictably developments came at us. It is an exciting story that will rekindle memories none of us who were there or were following at home will soon forget. Recount marshals these events into a well-done, well-acted, and entertaining movie.

Writer Danny Strong, Director Jay Roach, and the HBO executives behind the film make no bones about their telling the story from the Democrats' rather than the Republicans' perspective. That's cinematic license, and it's also true that so much happened so quickly that no two participants could possibly remember it the same way. That's even more inevitable when those who were there see their 36 straight 18-hour days boiled down to a 116-minute movie.

For example, my overriding memory of the Florida experience is of the remarkable team we assembled and the even more astonishing collaborative effort it produced. Our detailed, complex, lengthy, often passionate debates featured insightful arguments by many of the nation's best conservative legal minds. That's how the Republican team reached major decisions, but cinematic license reduced those nuanced, intellectually sophisticated debates to one-sentence pronouncements.

It truly was the most outstanding group of lawyers with whom I have ever worked or probably will work again. This collaborative team effort—led by our pater familias, James Baker—resulted in the final outcome. That the box at our door in which egos were deposited was full is as remarkable in retrospect as the fact that the average age of lawyers doing their own citation-checking had to be the highest in American legal history. The memory of constitutional scholar and soon-to-be Solicitor General Ted Olson sitting cross-legged on the dank carpet of the Florida GOP building marking up briefs is lasting.

Many individuals do not get the credit they deserve. I wish they did.

From my own vantage point, it is flattering to have a character named after me and to be portrayed by so fine an actor as Bob Balaban. It's quite an out-of-body experience, but the reality is that the Ben Ginsberg in Recount represents one of several composite characters reflecting the work of many.

Similarly, since Recount is sufficiently compelling that it could morph into "history," there are several important matters I would have included:

First, the movie makes much of the Democrats saying they want to "count every vote," but the cinematic white hats placed on their heads are contradicted by their simultaneously having:

• asked to count only in the state's four most Democratic counties (three of which had Democratic counting boards; the fourth was nonpartisan) under the subjective "intent of the voter" standard rather than using the counting rules posted in every voting machine in the state.

• tried to disenfranchise all the absentee ballot voters in Republican-majority Seminole and Martin counties on a technical error by election officials.

• attempted to disqualify the overseas military absentee ballots (the movie takes an awfully benign view of this disqualification effort, which even Democratic vice presidential candidate Joe Lieberman repudiated).

Second, the movie omits the first U.S. Supreme Court ruling (Bush v. Gore I), which reversed the Florida Supreme Court's decision on the basis that it made up new rules after the game was played by creating both its own deadline for finishing the recount and rules for counting the ballots. The Florida Supreme Court then ignored this order in its second ruling (Bush v. Gore II), a poke in the eye that led to the U.S. Supreme Court's staying the state court's recount and ultimately reversing its ruling 7 to 2 on the equal protection grounds that the "intent of the voter" standard led identical ballots to be counted inconsistently.

Third, the movie makes much of not knowing who really won Florida but fails to mention the exhaustive recount of the recount conducted by a media consortium to answer that very question. Those results showed that even if the U.S. Supreme Court had permitted the recounting to continue under either the rules the Gore campaign requested or those ordered by the Florida Supreme Court, George Bush would still have won.

Fourth, the movie makes much of a purge list of illegal voters by focusing on the case of a Pastor Whiting who the movie implies was denied his vote by Secretary of State Katherine Harris and the Republicans. But this incident ignores the fact that the law is enforced by counties, not the state. As Recount consultant Jake Tapper reports in his book Down and Dirty (Little, Brown and Co., 2001), some county supervisors chose to use the list, while others ignored it. A memo written by Harris is flashed on the screen. Highlighted in yellow are Harris's instructions about the list. Not highlighted are the words that each county's supervisors make the final decision. Pastor Whiting, who according to Tapper's book did eventually vote that day, lives in Leon County, which is controlled by Democrats who would have made any decision to deny him his vote, not Katherine Harris or the Republicans.

The bottom line is that HBO's Recount is great entertainment about a serious event. Even if Republicans remember the events differently from Democrats, both parties agree that improvement to our system of casting and counting votes is essential. If it takes Recount's Democratic perspective to move in that direction, the country will be better off.

Benjamin Ginsberg, a partner at Patton Boggs LLP, was national counsel to the Bush-Cheney presidential campaigns in 2000 and 2004.