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Title: Interview with Judge Charles Burton
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Permanent Link: http://ufdc.ufl.edu/UF00005691/00001
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Title: Interview with Judge Charles Burton
Physical Description: Book
Language: English
Publication Date: April 5, 2001
 Notes
Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
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Bibliographic ID: UF00005691
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 1

Table of Contents
    Copyright
        Copyright
    Abstract
        Abstract
    Interview
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
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        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
Full Text



COPYRIGHT NOTICE


This Oral History is copyrighted by the Interviewee
and the Samuel Proctor Oral History Program on
behalf of the Board of Trustees of the University of
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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida









FEP-1
Honorable Charles Burton


The Honorable Charles Burton, member of the Palm Beach County, Florida, canvassing board
during the 2000 presidential election, gained country-wide fame as he was thrust in the spotlight
during the legal wrangling over his county's votes. He begins his interview with an account of how
he came to be on the canvassing board and how Election Day initially transpired (page 1). On page
2, he relates how he came to realize that this election would be an unusual one, and comments on the
non-partisanship of the canvassing board.

Pages 2-3 contain Judge Burton's thoughts on the hand-recounts and on page 3, the infamous
butterfly ballot accused of confusing voters in Palm Beach County. Judge Burton also shares his
thoughts on the Vot-o-matic voting machine which caused some trouble in the election and the
under-votes and over-votes which plagued the recount. Also, on page 5, Judge Burton comments on
the accusations of minority disenfranchisement and the much-ignored fact that voter-error was much
more prevalent in Palm Beach than machine-errors in voting.

With regard to specific events transpiring, Judge Burton talks about the hand-recount ordered by the
courts and the talk of a possible re-vote on page 6. He speaks extensively about conflicting
directives handed down by Florida's supervisor of elections Clay Roberts and Florida Attorney
General Bob Butterworth (pages 7-9). This develops into general comments on partisanship and
conflicting legal precedents on pages 9-10 with specific reference to Florida Secretary of State
Katherine Harris.

On pages 11-12, Judge Burton discusses the Florida Supreme Court's dealings with the Palm Beach
case. The problems inherent in the court-mandated recounts are treated extensively on pages 10-16,
and page 16 contains special reference to unusual situations such as absentee ballots and overseas
military ballots. The problems encountered in Seminole County, Florida, are touched on briefly on
page 17. The U.S. Supreme Court rulings are treated at length (pages 18-20); more reference to the
legal wrangling is on pages 22-23 with regard to the Florida Supreme Court and pages 23-26 with
regard to the U.S. Supreme Court.

Judge Burton also shares his thoughts on the various recounts undertaken by newspapers (page 26),
and adds commentary on the Florida Supreme Court and the elections task-force selected by the
Florida legislature (pages 27). He also answers questions about broader issues of voting, voter-
literacy, felon voting, and voter discrimination (pages 28-29). He also discusses how the election
debacle has changed Palm Beach County and his life, as well as Theresa LePore, the much maligned
supervisor of elections. Judge Burton concludes his interview with thoughts on Palm Beach's
bearing on the electoral results (pages 30-31) and on pages 31-32, betrays some skepticism about the
changes proposed for future elections.









FEP 1
Interviewee: Judge Charles Burton
Interviewer: Julian Pleasants
Date: April 5, 2001


P: This is April 5, 2001. I am with Judge Charles Burton in West Palm Beach. How
did you come to be a member of the Palm Beach County canvassing board?

B: I was appointed to the bench in May of 2000 as county court judge. I had been
sitting in criminal division. Sometime around August, I guess, of 2000, I was
contacted by our chief judge's office. Actually, his judicial assistant had called me
and said that the chief judge would like me to serve on the canvassing board, to
which my response was, that is fine, but what the hell is a canvassing board?
And [I] was told that basically the function of a canvassing board was, you pretty
much supervised the voting equipment, and because this was a presidential
year, you may have to work a little late on that particular day. That is pretty much
how I came to be there. I think Judge Hafele had been on it the year before, but
he had opposition in the election. Once you have opposition, you can no longer
serve on it.

P: How is the chairman of the canvassing board chosen?

B: Actually, Florida statute states that the canvassing board shall consist of a county
court judge who shall serve as chairman, a county commissioner, and a
supervisor of elections. So that is by statute.

P: What were your responsibilities on Election Day?

B: Election Day really was like any other day for me personally. I went over to the
elections office at 4:00 that afternoon, November 7, and met with Theresa
LePore, who was the supervisor of elections, and Carol Roberts, who was the
county commissioner. About 4:00, we got together in a conference room and
went through the remaining absentee ballots that needed to be looked at. The
ones we looked at are the ones that we have to either compare signatures on the
envelopes, because some of these folks, for example, you may have an elderly
person who is in their eighties who had not registered to vote, I mean, who had
been registered for the past fifty years. Sometimes those people have a stroke or
something happens, and the signature is totally opposite than what they have on
file, so we need to look at those to examine signatures. People do not fill them
out correctly or have them witnessed, and so we do that. We also do another
testing of the machine counters. A pre-programmed set of ballots are run through
all the machines to make sure they are counting accurately, and we go through
those results and make sure there is no error. At 4:00, that would have been
about the second time that was done, because we also do that the Friday before
the election. That is pretty much it. We do that, and we basically leave and go









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about our business, told to come back about 10:00, 11:00 at night, and we go
from there.

P: When did you realize that this was going to be an extraordinary event?

B: It is funny because I had voted myself [by] absentee [ballot] the Friday before,
and so when I got there at 4:00, I do not remember if it was Theresa or Carol,
one of them, brought over a ballot it was the Vote-o-matic, not the whole booth,
just the little platform with a ballot in there and said, vote for Gore. So I put in a
ballot and I looked at it and punched out Gore and, what is the problem? Well,
people have been complaining they are confused by the ballot, and there is a big
hoopla going on. My attitude was, well, okay, whatever. I really had not been
thinking of it. I came back to my office, did some work, went out. I probably got
back over there about 8:00. You know, the elections office is kind of a neat place
to hang around, so I was just kind of watching. You get all the political people
hanging around and the party people. Of course, I watched like everyone else
that Gore won, and then the network said Gore did not win. As the night went on,
we realized it was a close election, but quite honestly, Gore was way ahead in
Palm Beach County. He had won Palm Beach County by over 100,000 votes, so
I really was not thinking anything was going to be happening in Palm Beach,
particularly. I probably got home about 3:30 that morning. Like many other
people, driving home, I hear on the radio, you know, we had heard earlier that
Bush was declared the winner and then that was taken back. I was really
planning on taking the next day off and sleeping in, and I got a call from Theresa
LePore about 10:00 the next morning saying we had to do a mandatory recount,
and you need to come back in. That is kind of how my day was spent.

P: What is your political affiliation?

B: I have been a registered Democrat my whole life. Of course, as a judge, you
serve non-partisan, and that is really how I kind of viewed my role here.

P: And the other two members were also registered Democrats?

B: Right. Carol Roberts, the county commissioner, is a Democrat, and Theresa
LePore, who was the supervisor of elections, is also a registered Democrat.

P: Should the supervisor of elections be non-partisan?

B: Absolutely. I think it is ridiculous to make the supervisor of elections, certainly
outwardly, owe any allegiance to any party. They should certainly be in the same
position a judge is in, to be non-partisan.


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P: Describe how you went about organizing a manual recount? The difference in the
voting was one-half of 1 percent and thus required a recount?

B: The original recount we had to do was mandatory under statute, so that was
simply running all the ballots through the machines. The one thing we did notice
on that is, basically the ballots go through these machine-counters and then it is
up to the operator of the machine to hit a button that says accept. There is also a
cancel button. What appeared to us to happen is that one of the precincts, when
it was run through initially, the person must have hit "cancel" as opposed to
"accept," so votes never got counted. So the one thing we noticed on the
mandatory is an additional 700-odd votes for Gore came up on this precinct, and
we were able to track down to where that problem came from. After we did the
mandatory recount, the Democratic party filed the request for a hand-recount, the
Republican party filed the request that we do another machine-recount, and we
granted both of those. So the first manual-recount is 1 percent. The precincts are
chosen by the party requesting it, so they were chosen by the Democratic party.
What we did was pull out the three precincts they wanted to have looked at.
Those came up a little bit less than 1 percent of the vote, so then Theresa
LePore, the supervisor, just picked another precinct that would be closest to that
number. So, at the same time we were doing the 1 percent hand-recount, we
were also in the process of running them all through the machine again.

P: How accurate is a hand-recount?

B: The one thing I think I have learned, and the one thing that has been
demonstrated lately by the media and the various media accounts, is that it is not
very accurate, because it is unfortunately very subjective. You know, in the
courtroom, we always look at reliability or scientific reliability or can it be
duplicated and can you get the same results? One thing that I think has been
demonstrated in manual-recounting of punch-card ballots is no two people get
the same results. So I think the accuracy leaves a lot to be desired, and I think
that it is far too subjective a process to be able to have any certainty as to the
results.

P: Why did Theresa LePore choose the butterfly ballot, and did you have any input
into that decision?

B: The butterfly ballot, it is interesting, Florida law has a Division of Elections which
is under the control of the Secretary of State, but each of the sixty-seven
counties have their own Supervisor of Elections. While the Division of Elections
through the Secretary of State's office tells the various supervisors the order the
candidates must be in, that is all they tell them, and so ballot design is up to the
individual supervisors. It is not a canvassing-board function; it is strictly up to the









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supervisor, so we did not have any input in the ballot design. But Theresa's main
thing is she has been fairly active in dealing with the [Americans with] Disabilities
Act and knowing the population here in South Florida, quite a few elderly, she felt
that if she had put the twenty names, the candidates plus the ten vice-
presidential candidates, on one page, the print was going to be very small and
people were going to have difficulty reading it. She thought it would be a better
idea to make the print bigger and split it over two pages. Needless to say, no
good deed goes unpunished.

P: How accurate is the Vote-a-matic [punch-card voting machine]?

B: I will tell you I certainly do not have any extraordinary expertise in this area other
than having just been through this last election, but I really believe the key to
voting in this country is not in the machinery. I think currently we are talking about
spending $200 million in this state to go to Opti-scan [optical vote-reading
machine]. If people do not know how to vote, it really does not matter what
system you use or how technologically-advanced it is. The key, in my view, is
voter education, and until we get people learning how to vote and taking the act
of voting seriously, you are never going to have accuracy. I think the Vote-o-
matic is okay, but it is clear to me [that] people do not use it right. If all of us were
trained, for example, to punch out a chad and, before you turn in that ballot card,
to examine the card, there would have been less problems. The other thing that
really occurred to me in this whole process is that this stuff has been going on for
years, politicians have known about it for years, it just never was an issue,
because we never had an election this close.

P: One of the things that has been discussed over and over again is the large
number of both under-votes and over-votes. How would you assess the reason
for that?

B: Over-votes were interesting. Granted, in Palm Beach, we saw more
combinations, for example, of Gore-Buchanan over-votes. Obviously, the ballot
was a factor. But what still strikes me as odd was if, you know, if you vote for two
people for the same race, your vote is not going to count. It struck me as odd that
people either did not know that or thought that, I mean, I have heard all accounts,
that people were just too embarrassed to go back up to the counter and say, I
need another ballots; who knows why? So I never understood over- votes. We
looked at ballots, one of them I remember had every one punched out except
Gore, so they had nine candidates punched out. We saw all kinds. I cannot
explain the over-votes.

P: If you had to judge an over-vote...


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B: You cannot. It is impossible. That is what struck me about the manual-recount of
over-votes, because over-votes are where two or more are punched. If you have
a Gore vote clearly punched and a Buchanan vote clearly punched, there is no
way to determine what the intent of the voter is. Now, I have had people say to
me, well, gee, obviously they intended to vote for Gore. Well, I do not think you
can make that assumption, because then as a board you are not counting votes,
you are casting votes. That always struck me as odd with the over-votes,
whether two or three or four or five are punched, you cannot really attribute any
candidate, so they do not get counted.

P: What would happen if you had a vote for Buchanan and Gore, but Gore was
circled?

B: I still think if the chad is clearly punched, I do not think anybody would get that
vote. The under-votes are a different problem. The under-votes have now
become famous, the dimples and nicks and dings and impressions, and those
are left when a person touches that part of the ballot and does not punch all the
way through. The problem with under-votes, in my view, we know that people
double-punched, some people triple-punched, some people punched four, five,
six times, so to say that somebody does not put the stylus down and touch an
area and go, whoops, I made a mistake, and touch another area would be
inaccurate. They do. It happens a lot. That was always my problem with, you
know, the Democratic party wanted every impression, ding, nick, dimple, spit
mark, should count as a vote. The Republicans, of course, did not. But that was
always my concern with, you know, are you really counting votes or are you
casting votes, and does some little impression that you can hardly see really
show the clear intent of the voter or not? That was really our problem in trying to
come up with a standard in reviewing these ballots.

P: One thing I thought was very interesting, 96 percent of the people who voted in
Palm Beach County did it correctly. That indicates more of a voter-error than a
machine-error, does it not?

B: It clearly indicates voter-error. The decision that night was clear. Those machine-
counters were tested a total of seven times, and every time, certainly on the
preprogrammed ballots, they tested 100 percent accuracy. So, I mean, you get
into a debate, if the voter does not do it right, do you just toss it or do you go
through this process of manual-recounting to try and determine voter-intent?

P: What is your reaction to the charge that, in that case, voters have been
disenfranchised, and particularly in sections of Miami, Duval County and minority
sections, they claimed the machines were old and they did not have real
opportunity to cast their votes?
5









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B: I have never liked the term voter-disenfranchisement as it pertained to this
election. I do not really think that is what disenfranchisement is. Were there votes
that did not get counted? Absolutely, there were a lot of them. But while people
focus, for example, on Palm Beach County and say, gee, if the board had done
this, if the board had done that. Well, that is 10,000 under-votes. If you really
want to know who won this election, let us go across the country because there
were 1.2 million under-votes, and let us go count all of those. I do not think
people were disenfranchised. My feeling was not quite this way before the
election, but it is since then, and I have come to realize voting is something that
we need to, as citizens, pay more attention. I mean, we go for a driver's license,
it is our obligation to study and do it right. If we take an SAT [Scholastic Aptitude
Test] test, if we do not color in that box, we do not get credit for the answer. You
cannot go back later and say, gee, I made a mistake or I was confused or I did
not understand. I just think it is incumbent on the voter to do it right.

P: One of the early proposals by the Democrats was to completely re-vote the
election or try to apportion the votes based on the three counties. What was your
reaction to that proposal?

B: Legally, I think we realized that a re-vote was never going to happen. You
certainly were not going to get a countywide re-vote in a national election,
because, even if you were to limit it to, you know, only those who registered can
come back and vote again, the problem with that is now everybody knows the
results and people are going to vote differently. So, I think early on, we knew that
a re-vote was not a remedy, and, in fact, that was one of the issues that came up
with the butterfly ballot. Judge Labarga, who heard that case here in Palm Beach
County, really said, before we even get to the ballot, what is the remedy? They
basically determined there is no remedy, so why even get to the issue, because
there was no remedy.

P: When you decided to do a hand-recount of all the ballots, what was behind your
thinking in this particular decision?

B: We had been doing the 1 percent manual-recount and the total machine-recount
again, probably added about eighteen hours. Came out at about 2:30 in the
morning to give the results, and our county commissioner at that time made a
motion for full manual-recount. We had found in the 1 percent recount that Gore
had gained nineteen votes, and her opinion was that, gee, that is 1 percent, so if
we multiply that out, there could be a difference of 1,900 votes and that would be
enough to affect the election, and we ought to move forward with a manual-
recount. My position at that time, number one, was, not having a whole lot of
experience in election matters, I certainly did not think our county commissioner,
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Mrs. Roberts, had a whole lot of experience in election matters, and even
Theresa LePore, although she had been not only supervisor but with the election
office for a number of years, had never gone through a recount of this magnitude,
[and] I was concerned about even the legality of a recount because the Florida
statute talked about if there is an error in the vote-tabulation system. So, number
one, you need an error in the vote-tabulation system, and we felt our vote-
tabulation system had checked out 100 percent.

P: With that one exception.

B: Well, right, but that was more a person manually... as opposed to the machine
not counting it, it was a person canceling it instead of accepting the total. So, I
did not see any error in the vote-tabulation system, and if you looked at the
statute, it referred to, if there is an error you should replace the computers, check
the software, and another option, of course, is to manually-recount all the votes if
it would affect the outcome. There was a lawyer from the Division of Elections
here that evening who was basically telling me she did not think the manual-
recount was lawful. I just simply felt we ought to look into it before rushing into a
decision. Quite honestly, I was upset about the entire tenor because, rather than
a motion to have a manual-recount, it appeared to me to be more of a Gore-
Lieberman pep rally. I felt our role was to be non-partisan, and I did not like the
tenor of what was going on. I thought, really, let us get together the next day, let
us all go home, get a night's sleep, and let us talk about it, and let us see how we
are going to do this, if we are going to do it.

P: And you did, I think, request an opinion from the Florida Secretary of State?

B: Not Secretary of State, Division of Elections. It is interesting. During Elian
Gonzales, Janet Reno was quoted as saying, you are damned if you do and you
are damned if you do not. I really found that interesting about this election
because, you know, if we have a problem with our electric service, we call FP&L
[Florida Power & Light], and if we have a problem with our phone service, we call
Southern Bell. For some reason, I was criticized, having an elections question,
for calling or asking the state Division of Elections, who was in charge of all this.
Of course, now I know the reason I was criticized was because the Democrats
realized the opinion we were going to get and then, therefore, why would you go
ask? I always found that interesting that, as a judge, I am sitting here trying to
follow the law and obey the law, and they are basically do not ask and you are
better off ignoring the law, because you are not going to like the answer you get.
So, two days later when we met, we basically agreed to ask Division of Elections,
[and the Florida] Attorney General [to] give us some help and give us some
guidance, and let us go from there.


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P: Let me ask you first about the opinion from Clayton Roberts [Florida Supervisor
of Elections]. Here it seems pretty clear that you would only be justified in a
manual recount if there had been a machine error.

B: Right.

P: Then Bob Butterworth [Florida Attorney General] presents a totally different
opinion.

B: Right.

P: Butterworth says Rogers had misinterpreted the law. So now you have two
conflicting legal opinions. What did you do at that point?

B: Probably said a lot of things under my breath that I would not have said publicly.
As I said, being a new judge, I am trying to be as non-partisan as humanly
possible, and ultimately what we wound up realizing is that everybody up the
chain was acting very partisan. We had the Secretary of State [Katherine Harris]
who controls the Division of Elections, who is a Bush campaign supporter, giving
us one view. We have the [Florida] Attorney General, who is a Gore campaign
supporter, giving us another view. What was actually interesting to me is if you
go to the Attorney General's website, he specifically states on the website, which
we did not know beforehand, if you have an elections opinion, you need to go to
the Division of Elections because we do not do those, but yet he did in that
instance. So we had two conflicting opinions. What I did not realize ahead of
time, but did learn subsequently, is that the opinion of the Division of Elections is
binding on the party who asked for it. We asked for it as a board, and I felt we
were bound by it. The statute did provide for some criminal sanctions and so
forth. My attitude and our legal counsel's attitude was that we ought to just go to
a court and say, tell us what to do; we have got two opinions, we are ready to do
either one, tell us what to do. At that time, Bruce Rogow was actually
representing Theresa, but also representing the canvassing board in its appeals.
Volusia County had an action pending. They asked for declaratory relief in the
Florida Supreme Court. We joined their lawsuit, which is actually how it ultimately
got to the Florida Supreme Court.

P: If you were just looking at those two opinions from a judge's point of view, would
you have been persuaded by either one?

B: Well, the attorney general's opinion dealt with the issue of the legislative intent
that all votes should be counted, and that clearly is our history. We certainly want
to try and count all votes. On the other hand, I think purely by the statute, and if
you look at the statute and read the statute, I mean, I think the Division of
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Elections opinion was more accurate, based on statutory construction, to me, if it
refers to error in the vote-tabulation system, and clearly we had no error in the
vote-tabulation system. We had error in getting the votes counted, but we felt that
was really as a result of voter error, not the machine error.

P: Yes, he tried to make it vote-tabulation.

B: Which is what the statute says, vote-tabulation system.

P: Yes. Now, when you are getting ready to decide this, at some point you took a
vote for recount, and the vote was two-to-one, and you dissented.

B: Right, and that was back on the initial when I said after the eighteen-hour day
and what my thoughts were. I think I have answered that, actually.

P: Okay, and that was because you did want to get another opinion, you did not
want to go ahead.

B: As I said that night, I felt that the motion to go forward was extremely partisan,
the tenor in the room was extremely partisan. I felt it was more of a Gore-
Lieberman pep rally than a canvassing board's well-reasoned decision. It is
interesting, because when I testified before Judge [N. Sanders] Sauls, he asked
what was the mind-set or what were the thoughts of the board, the same
question you asked me, and quite honestly I could never answer that, because
we never had any discussion. It was, yahoo, let us go counting. I just wanted to
go into it in a more reasoned manner.

P: Let me ask you about your reaction to both Bob Butterworth and Secretary of
State Katherine Harris. Do you think they acted in an objective way?

B: I do not believe either one of them acted non-partisan. I think it was clear that
Secretary of State Katherine Harris would have certified this election on
November 6 if she could have, but I think it is equally clear that the attorney
general was doing what he could for his party to keep the recounts going. That is
the thing that I look back on this whole experience was one of the most
frustrating things. I think, quite honestly, all of the judges, Judge [Robert W.] Lee
down in Broward [County] and the people on the canvassing board and the
circuit judges, Judge Labarga, Judge [Terry P.] Lewis [Florida Circuit Court
judge], Judge Sauls, I mean, I honestly believe that the judiciary was acting in a
non-partisan way, trying to do what they did because they think it is right under
the law. What was frustrating for me was looking at here is our attorney general
and here is our secretary of state and I am ready to pull my hair out because they
are clearly playing partisan politics.
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P: Once you have appealed to the Supreme Court, Katherine Harris decides that
she is going to hold to her standard: the legal deadline of seven days. Did you
think that was a partisan decision?

B: Do I think she was motivated by partisanship? Absolutely. On the other hand, I
will tell you, do I think she had the legal footing under the law to do what she did?
Absolutely, and that was the real dilemma because our election law, as it was
written, allowed for her to do these things.

P: The law is a little bit confusing, because ballots missing the deadline shall be
ignored and then later it says may be ignored.

B: Right. My biggest concern initially was that at the time we took the vote, the one
you mentioned that was two-to-one, that was a Saturday; well, it was actually
Sunday now, about 2:30 in the morning. I went home for a couple hours. I came
back to my office to do some research, because I knew the deadline was coming
up that Tuesday, and there was no way we were going to do a full county recount
by Tuesday. So I wrote to the Division of Elections to get an opinion on that very
issue: we have one statute that says shall, one statute that says may. Of course,
they come back with the opinion that we interpret the may to be only in natural
disasters, hurricanes, tornados, whatever, so we are going to hold you to that,
and if Palm Beach County's votes are not in, none of Palm Beach County's votes
are going to get counted. Of course, that was one of my concerns, you talk about
disenfranchising, that we are going to wind up disenfranchising 460,000 people in
the process. That was a concern to me.

P: She could have delayed three days until the absentee ballots were counted,
could she not?

B: Quite honestly, if the secretary of state had come out initially and said we believe
these recounts... it is interesting, Florida law provides for manual recount, yet
under the laws it is written, counties like Dade, Broward, Palm Beach, big
counties, would never be able to do it in the time-frame. I think if she had come
out initially and said, you know, we have got until November 18, we have got
overseas absentee-ballots coming in, we are going to let the canvassing boards
do what they want to do, and as long as they get the results in by November 18,
we are going to accept them, I do not think there is a court that would have
touched that decision. I do not think the Florida Supreme Court would have
overturned that decision. But yet it just seemed to me her zeal to certify this
election flew in the face of what ultimately people are trying to do, and that is the
statutory intent which is to get all votes counted.


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P: Should she have recused herself at this point?

B: I think she probably should have recused herself. I think, quite honestly, the
attorney general should have recused himself. That, to me, was just one of the
most frustrating things early on. You just felt that you are sitting there as a local
county court judge trying to do the right thing, and then here are all these people
up the ladder who are apparently just acting on partisanship.

P: Do you think the press was unfair to her, this Cruella DeVille and all of that
negative publicity?

B: The press, to me, to sit there and attack somebody's makeup or lipstick or eye
shadow or looks, I mean, I think is pretty cruel and unfair. Clearly, as public
officials, we are all subject to criticizing our decisions and I do not have a
problem with anybody criticizing anybody's decisions, [but] I think [when] you
start going after their appearance, I think that is going a little too far. As I said, I
think while she might have been on correct legal footing, I think it was her
obvious zeal to try and certify this election is what opened her up to that.

P: Now, you began, as I understand it, your recount on Tuesday, November 14. Did
you do so because Judge Labarga permitted you to do that?

B: No. What happened was Judge Labarga rendered his opinion. At this point, the
Florida Supreme Court had accepted our case. Although we had decided to
resume the recount, we again met on that Tuesday and decided we were going
to wait. Actually, Labarga's ruling I do not think came out until later that day. So,
we met on Wednesday morning, and Bruce Rogow had said that, you know, the
Florida Supreme Court has accepted this case, you have asked them what to do,
I think it will be a slap in the face for you to just get started, you really ought to
wait; and, since you have asked them for advice and they have decided to hear
it, you ought to wait. So, we did, and, of course, the opinion actually came out on
the 16th. They said, you may count, and that is when we actually started off the
recount, on November 16.

P: Did you agree with the Florida Supreme Court decision?

B: I do not know. The one thing that was interesting to me, you know, because you
read Florida election law, and it is clearly the legislative intent that all votes
should get counted. Horribly-written law, and so many inconsistencies built into it.
So, on the one hand, while I understand the Florida Supreme Court's decision to,
you know, we have a provision to count all votes, you ought to do that. I kind of
started realizing this is going to be a problem when the dates started changing
and the rules started changing and, for example, when they came up with
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November 26, we were just like, where did this come from? So we knew that was
going to be a problem. I also was unhappy with the opinion in that it never
addressed the standards the canvassing boards are going to look at. That was
my main concern from the beginning. You know, we are looking at ballots a
certain way, Broward is looking at them a certain way, Dade is looking at them,
everybody is looking at them differently. This is no way to elect a president. So, I
was frustrated. We tried to get an opinion from Judge Labarga, you know, Judge,
you tell us how to do it and we will do that way he would not touch it. We were
hoping the Florida Supreme Court would, and they did not. I was not necessarily
surprised by the opinion. I do not know that I could say I agreed 100 percent with
it, because they were clearly changing what the law was.

P: But it applied to only three counties.

B: Right.

P: Do you think the Gore legal team made a mistake in not requesting a statewide
recount?

B: I have talked to some of the lawyers, and they said it was actually the trial
lawyers' view that they should be doing a statewide recount. Here is the problem,
and this is clearly in the back of my mind. First of all, you could have gone to any
supervisor of elections before this election, and none of them would have told
you a dimple or ding or impression counts as a vote. They never would have said
that. So, you have a process that is supposed to be non-partisan. For example,
in Palm Beach County in the September primary, we had a state House
candidate who lost by fourteen votes [and] asked for a manual-recount.
Unanimously, the board denied it. We had another state House candidate with all
kinds of improprieties alleged in the election. The canvassing board unanimously
denied a recount. Go back to 1992 in Broward [County], the Hogan case. The
guy loses a city council seat by five votes. The canvassing board unanimously
denies him a manual-recount. Now you have a candidate who wins Palm Beach
County by 120,000 votes, and he gets a manual recount. You go explain to the
candidate who lost by fourteen votes, you do not get one but this candidate does.
I just think that reeks of partisanship. That is what we need to get rid of, because
the canvassing board ought to be able to look to the law and say, you get a
recount, you do not get a recount. If we are talking about a national or statewide
race, then either every county ought to get counted or none of the counties ought
to get counted. I just think that is partisanship, and that needs to be removed
from the board.

P: So you think the Florida Supreme Court was partisan in this case?


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B: Look, I do not want to say that the [Florida] Supreme Court justices are partisan. I
think it was an opinion to clearly try and give effect to legislative intent. Legally,
though, you could not justify it. It was interesting. November 26, and we all
scratched our head, where did they come up with this date? Well, it was
interesting when I got to go to the first United States Supreme Court argument.
That was one of the first questions, where is November 26 written in the law?
The rules kept changing as the process went, and that is when I really just felt,
the more the rules keep changing, the less likely this is ever going to pass
constitutional scrutiny.

P: When you started counting, how did you, as a canvassing board, decide on the
standard?

B: There had been a written policy by Judge Robert Gross. Jackie Winchester was
the supervisor of elections, and I think Carol Elmquist was the county
commissioner. Judge Gross is now on the Fourth District Court of Appeals, but
he was a county judge at the time, back in 1990. They came up with a written
standard that said if one corner of the chad is removed, they would count that as
a vote, but the dimples or indentations do not count as votes, because even they
recognized that people can touch and then, you know, put down with the stylus
and decide they made a mistake and go vote for someone else, so they were not
going to count those. That is pretty much the standard we wound up operating
[by]. It was actually the standard that was in effect on November 7, or at least the
only written policy this county had. Well, as we get to November 16, Broward
[County], I think, had started the recount a couple of days before. I had said to
our county attorney, Denise Dietrich, you know, we ought to call Broward and
see what they are doing, because we ought to be doing the same thing; that will
be one less issue for anybody. So, we called and talked to their county attorney
down there, who said they were actually applying two corners, if two corners of
the chad were punched out, it would be counted as a vote, and they were not
counting individual dimples or anything like that. We decided we would count
them if there was a consistent pattern and it showed that is how the voter voted,
but basically if there were one or two votes by dimples, we were not going to
count them. That is how we came up with it, really, just more or less to be
consistent with Broward. Of course, four days go by and Broward decides, well,
we are going to go back and count some of these dimples. That was their
decision. I just kind of felt that once we started we needed to be consistent, and it
was not right to be going back changing your standards because one party was
unhappy with the vote totals they were coming out with.

P: But when did this business of being able to see through...?

B: Oh, the sunlight?
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P: The sunlight.

B: Sunlight actually came up back earlier. That was during the 1 percent recount.
We were really adopting that 1990 standard, the one corner, and we were not
counting dimples or dings. Somebody mentioned, what about a sunshine
standard? And, what is that? Well, if you can see light through it, okay. So I said,
fine, whatever. We went back and we started looking at ballots. Now, we started
holding up a ballot that, in the presidential call, maybe there are three candidates
with dings [and] you see a little pinhole of light through one of them, and they are
counting these as votes. Really nothing distinguishing between the three dings
on the three different candidates other than one as a little pinhole of light. As we
went, I said, this is ridiculous, this is crazy, you are not determining voter intent. I
was concerned. I mean, it was ridiculous the way it was being applied. I
mentioned something to the county attorney, and he said, bring it up. So I went
back out to the room and brought it up. We were just about finished with one
precinct, and I brought it up. I said, this is crazy, you know, we are finding votes
that, you know, there is nothing distinguishing, the paper is hardly pierced and
yet there is a little nick-hole of light. We talked about it and agreed that we were
just going to go back to the one-corner rule, if you will, the 1990 standard, so
what we did was go back and redid that precinct.

P: How did the canvassing board get along at this point? Obviously, there are some
disagreements about how you count the votes.

B: Personally, we were doing fine. I just felt that you look at Florida law, and it talks
about the canvassing board serving as a neutral administrative body. I was a little
unhappy with our county commissioner member. I felt she was acting a little too
partisan. I think she was making some statements going over the ballots that I
did not think were appropriate, for example, to look at a ballot with a little nick at
number five, which was a Gore vote, and say, well, unfortunately we cannot
count this one. Listen. I grew up reading about Chicago politics and the
backroom deal [referring to Chicago's former propensity for unethical party-
machine politics]. My attitude was whatever we are doing here, we ought to be
open and we ought to be public and we ought to be consistent because at least
that way hopefully people will have confidence in the outcome. So, I did not think
it was appropriate. I think as time went on, we certainly were fairly on the same
page.

P: Why did you move to the emergency operations center?

B: That was actually another interesting thing. In the zeal to go forward with a
recount, nobody had talked about planning. It was clear we could not do it in the
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elections office. So, while I went home that night and Commissioner Roberts
went home that night, we kind of left it up to Theresa, okay, you go figure out how
to do this. I guess she got together with some county folks and tried to find a
location that could handle the number of counting teams we wanted to have and
to be able to have everything done in one location and not have everybody
scattered everywhere. They came up with the EOC, which actually worked out
pretty well, I thought.

P: And who did you use to help with the count?

B: Another sore spot with me, because I used to go out to the media every day and
all those people holding picket signs, come on in, we need help. Could not get
very many volunteers. Wound up having paid people; mostly county employees
from various departments, were used as counters. We just had to make sure we
had a Republican and a Democrat with each team.

P: You had about, what, twenty-five or thirty teams?

B: At one time, I think we had thirty-one teams working.

P: Were they working efficiently?

B: I think the process was going fine. To me, all the stuff coming out of there about
the chads flying around and ballots being tossed on the floor, I think that was
clearly the spin of various parties. I thought the process worked very well. The
process between the counters worked very well.

P: How difficult was it counting votes under this extraordinary pressure? There were
lawyers and there were outside agitators.

B: Right. It was hard. You just kind of get numb after a while. It is not the most
exciting duty in the world, and these folks, I give these people so much credit. I
do not care if they were getting paid or were volunteers or whatever, just to sit
there, holding up a ballot, showing it to the other counter, putting it down, just
over and over again. Now, the problem [is] you got these observers from each
party, so you got a Democrat observer and a Republican observer. It became
clear that the Republicans were there to slow down and hinder the process
because they never wanted to see the count finished. The Democrats wanted
every little spit-mark to be counted as a vote. So, instead of legitimately the
canvassing board probably looking at some 6,000 ballots ultimately to decide, we
wound up with over 16,000 ballots, which was ridiculous, because we wound up
looking at ballots that clearly had Gore punches or clearly had Bush punches, but
the observers were objecting and getting in fights with the counters. You would
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have a counter who would count the precinct, and then the other counter would
do the count to verify, and you get an observer saying they mixed up a ballot. It
was ridiculous. So that was the real problem.

P: And then the Republicans were charging that people were eating chads and that
there were chads all over the floor. How did you react to those kind of charges?

B: It is funny, I would go outside for a cigarette and the media would come. Tucker
Askew was the Republican spin guy, and he would just be saying all this stuff
and I was laughing. I mean, it was ridiculous because we had the media being
able to have cameras in there. We allowed reporters of print and, I think, radio.
We had a still photographer being able to be in there. I used to say to the
reporters, you know, you are reporting this stuff, but yet you have been in there
and you know what is going on; why are you even reporting this nonsense? That
was ridiculous. I did not see anybody eating any chads. I do not think they tasted
good.

P: Did you react strongly when the Republicans sent people like Bob Dole and the
Democrats sent Jesse Jackson? Obviously, Broward County and to some degree
Dade County were somewhat intimidated by this pressure.

B: It is funny, we were not too happy with the initial stuff going on. I look back now
and I think the stuff that [Robert] Wexler [Democratic Congressman from Florida]
and Jesse Jackson did really hurt their cause more than it helped, because it
created a very antagonistic atmosphere, you know, by storming the elections
office, because, really, the lack of planning and preparation showed. And what
ultimately happened with that count? We did not get it done in time, we did not
get through it in time, and we had way too many questionable ballots. I would
have liked to have had more time to plan it, talk about how we are going to do it,
let us get an independent auditor to go through our ballots. You know, we had
Theresa LePore having to do that. What I thought was interesting is at some
point the Republican party started having all these congressmen show up and
senators show up, and then the Democrats, not to be outdone, they started
having... It was funny to me because Senator [Bob] Kerrey from Nebraska came
one night on behalf of the Democratic party. He was walking around the room
watching, I think, impressed with how things were going. It was nice and smooth
and quiet. It was like a library in there. Then he came down to sit with us, and we
were showing him. We picked up this one ballot that you could hardly see
anything on [it]. We call it an under-vote, and the Democratic lawyer objects. I
reach over and show it to Senator Kerrey. Do you see anything? He looks and he
says, I do not see anything. Even he was agreeing it was not a vote. It was
interesting. I do not know what their purpose was of being there. I certainly did
not find them intimidating. I thought it was interesting that they were there to see
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the process. To me, to see Governor Pataki [of New York] and some of these
Republicans, being inside sitting there with us, knowing exactly what we were
doing and then walking out and to say it is chaos, that just irritated me because
that was totally not true. [Tape interrupted.]

P: Let me ask you about overseas ballots. How should they be treated? The law, I
think, is fairly clear: if there is no postmark, they should not be counted. Is that
correct?

B: Right. They have to be postmarked by Election Day, but they have up to ten days
after that to be able to actually be received in the elections office.

P: Should there be a special rule for military overseas ballots?

B: I do not know. The problem with creating a lot of special rules in elections is that
you may solve one problem but you create a whole bunch of others, mainly
voter-fraud. We need to have a set of rules, and we need to live by them. If
unfortunately some votes do not get counted, I am not sure that outweighs the
risk of creating other problems, and that is voter-fraud. By the way, in Palm
Beach County, we did not have a very big problem with the overseas ballots. I do
not even know if we tossed out any military ballots here.

P: Although statewide, it was about 39 percent.

B: Is that right? We did not have that problem here.

P: Is there a great potential for fraud with absentee ballots?

B: Sure. I think there is a great potential for fraud. One of the things that happens,
for example, in voter registration that I learned is that, apparently, when people
fill out their registrations, they want the Social Security number and address, and
some people do not like giving those. They feel funny leaving that information.
Again, I just think then you have what happened down in... That was done in
response to what happened in Dade County several years back. As I said, the
least restrictive you make it, the more subject you are to voter-fraud, and we all
know there are people out there who will take advantage of the situation if they
are given the opportunity. I think we need to have these rules in place. I think we
need to follow them. Really, to me, I still say we are about to embark, apparently,
on spending about $200 million on new voting equipment, and I just think you
need voter education. You need to educate people. You probably need to start
when they are in schools. I do not care what kind of system you have, you are
going to have a lot [better] success rate. I am just imagining what is going to
happen here in Palm Beach County in two years if we have Opti-scan and now
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you have got people who have never voted on Opti-scan and the kinds of
problems that are going to be created by that.

P: What was your reaction to Sandra Gourd in Seminole County who allowed
Republicans to come in and finish filling out the absentee ballots. Is that illegal?

B: I do not know that it was illegal. I think that it was a poor choice to make because
it certainly leaves the impression, again, that the supervisor of elections is
partisan. It might have been that the Republican party discovered that was a
problem and came in personally to try and correct it. I do not think it was wise. I
think at one point the ballots actually left the office, and that was an unwise thing
to do, although there was no evidence that the actual ballots were tampered with.
But I would not have made that an option unless you offered it to the Democratic
party as well. I just thought that was a poor choice. The other legal issue is, are
you going to toss out 15,000 votes because of that?

P: So, you would agree with Judge Nikki Clark and Judge Lewis' decision not to
throw out any of the disputed absentee ballots in Martin and Seminole Counties?

B: Right, particularly since there really was no evidence of any tampering, other
than correcting the voter ID number on the front of the envelope. But I just
thought that was certainly a poor decision that the supervisor of elections made.

P: Gore and Bush, of course, are going to eventually fight this out in the Supreme
Court, and Bush appeals the Florida Supreme Court decision. Should the United
States Supreme Court have taken that case?

B: It is interesting. As I said, I had the opportunity to go up to Washington for that
one. I know I am jumping ahead of the question, but people have been very
critical of the United States Supreme Court, and people have been critical of
judges in general on this matter. I think it is the real partisan people, and they feel
that the judiciary acted politically. I never quite saw it that way. I do not know
whether you talk about equal protection or which constitutional... it just struck me
as odd that this is an awful way to be electing a president. Here we have a
country of voters, close elections in so many states, and yet we are leaving it up
to three counties in the state of Florida to decide this thing. That always struck
me as very odd; coupled with the lack of standards in reviewing these. I have
never been what I would consider a constitutional scholar, but I think certainly
once these things started hitting the courts, it was pretty clear that the United
States Supreme Court was going to decide it one way or the other. You know, I
really cannot say legally whether they should have or should not have. It was
interesting, because the very first opinion they really laid out their concerns and
went back to Florida and said, correct it, and Florida did absolutely nothing to
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correct it.

P: Although on the first writ of certiorae, they did not respond to the Fourteenth
Amendment appeal in that case.

B: Right. But it was interesting to me because as I sat there and Justice [Sandra
Day] O'Conner, one of her first questions is, where did this November 26 date
come from? That is a problem. All these things that were in place on November 7
were now being changed as you go, the standards of the canvassing boards
were changing. From county to county, within a county, they were changing.
Time limits, deadlines, everything was changing. So, we knew it was a problem.

P: So, then the U.S. Supreme Court, particularly [Justice Antonin] Scalia, mentioned
that in this case it looked as if the Florida Supreme Court was usurping the rights
of the legislature.

B: And clearly the Florida Supreme Court was changing the rules as it went along.
P: John Ewe, who is a professor of law at Berkeley, said he thought the United
States Supreme Court should take the case just to end what could be a
constitutional crisis, even if there were no legal issues. What would be your
reaction to that?

B: Right. I think he is probably correct. This is something I used to joke around
every day, that every time you sneeze there is another court case. This would
have gone on and on and on and on. It did need to come to an end. As I say, I
never quite felt the U. S. Supreme Court's opinion was that out-of-line because
what always struck me is, you know, here I am, a local county court judge, and
the same issues we are talking about are the issues ultimately the Supreme
Court decided made the Florida law unconstitutional. It definitely needed to come
to an end, and I do not know where else it would have ended if the United States
Supreme Court had not gotten involved.

P: In trying to get your votes counted, you realized that it was a slow process, so
you asked Secretary of State Harris for an extension. She turned that down. Did
you find her reasoning persuasive?

B: No, and I kept saying under my breath, I do not believe she actually read any of
those requests for an extension. I think she just simply decided. I just think the
way the secretary handled herself left her open to a great deal of criticism, and I
think she had her mind made up that we were not going to give extensions.

P: In retrospect, do you wish you had not taken Thanksgiving off?


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B: Of course. There are a lot of things, certainly if I ever had to go through this
again, I would. It is funny the way Thanksgiving... everything you do is funny,
depending on the side of the fence who is doing the talking. I mean, everything
you do they criticize you for, and at the time, Denise Cote, who was kind of
running the media and kind of overseeing the organization, number one, her
concern was we cannot bring in all these county people, they have got to have a
day off, because even though we had only been counting about eleven days, I
mean, we had been at this since, really, Election Day, nonstop, and people
needed a break. Interestingly enough, one of the things I saw in the Miami Herald
story today was the fatigue factor, that you would sit there at 10:00 a.m. and
certain things that are in by 10:00 p.m., you are not even using the same
standard because it is just tiring and it is so tedious and boring. So, quite
honestly, I think we needed the time off. Do I wish the canvassing board
themselves, myself, Carol, Theresa, had come in for four or five hours? Sure. But
hindsight is a wonderful thing. I would not have liked to spend the day before and
the whole morning in Judge Labarga's courtroom because the Democrats were
challenging our standards. I would not have liked to have had to listen to them
following that on a Friday, spend a good three or four hours trying to convince us
we ought to be changing our standards. More importantly to me, quite honestly,
is the Democratic party and the Republican party were so organized, they knew
how many ballots we had to look at. They were keeping track precinct-by-
precinct, so they knew how many we had left to do. We did not really know. We
were not keeping any kind of tally. We were just opening the boxes as they
come. When I told a Democratic lawyer, Dennis Neuman, you know, we are
taking Thanksgiving, I think he was just as happy we were. He wanted to go
home, get a day in or whatever. They never once said to us, Judge, if you take it
you will never finish, there are X amount of ballots left. Nobody ever said that to
us, because if they had, that certainly might have affected our decision.

P: Well, you certainly speeded up.

B: Oh, we definitely speeded up. No doubt about that.

P: Judge Lewis allowed the secretary of state the option of accepting the ballots
either 9:00 Monday [morning] or 5:00 Sunday [afternoon].

B: That was actually the Florida Supreme Court.

P: Okay. Why was that option given?

B: It is interesting, the Florida Supreme Court says the certified results, if the
Secretary of State's office is open on Sunday at 5:00 p.m. to receive them, if not,
9:00 a.m. Monday. Well, they could have said 2:00 a.m. Sunday, and she would
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have been open to get them. We knew that, which is why we worked through the
night that Friday. Saturday, we went straight through the night into Sunday. We
knew in any event she was going to be there at 5:00 to get them. As time got a
little closer, we realized we were not going to make it. I basically sent a letter off
saying, give us until Monday morning, which I kind of realized we were not going
to get it. But when it came down to where I saw another hour or two hours, we
would be done, I called Clay Roberts, and, we have not yet gotten a response
from our request for Monday morning, and he says, well, we are just getting
ready to fax you something. I said, what does it say? He says, it is a long letter. I
said, what is the bottom line? He says, no. I said, look, you know, we got people
working twenty hours a day, they have been breaking their butts, another two
hours we will be done, and give us the two hours. He says, let me get back to
you. I could hear him talking to a few people, and he says, we will get back to
you. Then ten minutes later, we get a letter saying no. Really, by the time she
went to do a press conference, we were basically finished. It just struck me as
odd that, you know, gee, I will not delay the press conference, like it would have
mattered.

P: You mentioned that that decision was a slap in the face to all the people who had
worked so hard.

B: And it was. As I told Clay, you got people working twenty hours a day, all we
wanted to do was just get it done. The only thing giving us two hours would have
done would have delayed her press conference. Ultimately, that is all that would
have changed.

P: Now, at this point, the Gore forces are going to contest the election and they are
going to appeal to Judge Sanders Sauls to count these 4,000 ballots, I guess,
that you had set aside.

B: Right.

P: What was your reaction to that lawsuit?

B: My reaction is they would have been better served contesting the whole election
statewide up-front, as opposed to trying to seek selected recounts. As I said, it
gives the appearance that, you know, both party slogans were true. Al Gore
would get up there and say we need to make sure all votes are counted, and I
think as a country we ought to do that. Well, as George Bush would say, we
ought to be counting votes, not casting votes, and that was the problem with the
recounts. Depending on the standards, the counties, you know, so they go to four
Democratic counties and say, we want recounts, and I think that gives the
appearance that this is a partisan effort. I thought they would have been much
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better off either, one, asking for a full state recount [or] just bypassing the recount
and let us contest the election state-wide.

P: Were you surprised that he ordered the ballots be brought to Tallahassee?

B: No. I mean, he was going to order them [to be] brought up there. I was surprised
he decided never to look at the ballots, but I was not surprised he brought them
up there.

P: One of the arguments that the Gore people made is that there was a chad build-
up and the machines were old and the rubber was worn out and thus many
voters were disenfranchised. Apparently, that had very little legal traction.

B: It certainly never convinced us that that was the case, and I am saying people
who have been in the elections business for years basically said that is a lot of
baloney. I know the day I had to go to court in front of Judge Labarga, we were
subpoenaed to bring a voting machine. I was just kind of playing around with it
before I left for the courtroom trying to duplicate some of the ballots we saw, and
I could not do it. I mean, I would just touch it and it would fall out. Of course, what
we saw were clearly ballots that were placed into the voting machines incorrectly.
P: Upside-down or something.

B: Upside-down, pinholes through numbers. We kept seeing these two big holes on
the bottom of the ballots. It kept repeating itself to the point where we named it
the red-pin syndrome, because it was clear these people had put it in upside
down and just shoved the ballot over these two red pins. So I could not duplicate
the marks. I know Tony Enos, who drove the famous Ryder truck, who takes care
of all the equipment here. When we got back from Tallahassee, I mean, he just
stuffed... He went through collecting chads under these other machines and just
totally stuffed one of the machines full of them, and he had no problems
punching it out. You will never convince me the chad build-up caused the
problem.

P: When you testified before Judge Sauls, obviously you testified that you had due
diligence and that you had worked very hard and that there had not been any
tampering or malfeasance or anything like that. That, in effect, was a contribution
to the Republican side.

B: Right. What happened was Bruce Rogow had suggested that myself and Denise
Dietrich go to the Supreme Court. That was the first case up at the U. S.
Supreme Court. That was on a Thursday. As I was leaving, I get a call from Drew
McMahon [and he said], you are being subpoenaed up in Tallahassee, you are
going to need to testify there. So we want you to go from Washington to fly into
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Tallahassee to testify. I said fine. I did not even know who subpoenaed me. I
later found out it was actually a subpoena from Joe Kloch, who was Harris'
lawyer. I did not even know who had subpoenaed me at the time. When I got
there, one of the Republican lawyers said, we may be calling you as a witness. I
really thought it was, more or less, describe how you went through ballots and
describe the standards you used, and that is basically what I did.

P: Judge Sauls ruled that Gore had failed to prove a reasonable probability and that
the outcome would be different after a recount and that since there was no
dishonesty or negligence, that Gore had to demonstrate, not a possibility, but a
probability. That does, I understand, conform to the law. Is that correct?

B: I believe so. I think where Judge Sauls' opinion got into problems is when he
talked about the canvassing boards not abusing their discretion and an abuse of
discretion standard, which really did not exist. I guess the Democratic party felt,
even in dealing with the standards, that he should be looking at these ballots or
appointing masters or somebody else to look at these ballots. But then that really
does trample on, you know, on the one hand, the law gives these canvassing
boards all this discretion, on the other hand, the Democrats are arguing, well, you
need to look at them twice. That is why I always felt if that was their contention,
they should have just done away with the recounts and just gone right to a
contest phase, state-wide, just contest the whole Florida election. Could have
accomplished the same result.

P: Of course, it may have been Joe Kloch, I forget, one of the arguments he made,
well, if you are going to have the court counting the votes, you can do away with
the canvassing boards.

B: Absolutely, which is why go through this manual-recount? Look, the thing that
bothered me most, despite all the spin and the parties saying what they want to
say I mean, both parties are guilty of it the fact is, it was all strategy, political
strategy, and that bothered me more than anything. If Gore had gotten enough
votes in the recount, which is I guess what their strategy was, gee, if we can Al
Gore enough votes, then you are putting George Bush on the defensive, and he
is the one... I do not know.

P: Your reaction to the December 8 Florida Supreme Court four-to-three vote to do
a manual-recount of all the under-votes in the state?

B: Clearly contrary to Florida law on a manual-recount. I would have liked to have
just done the under-votes, but what the statute says is you must manually-
recount all votes. So here we are, wasting our time going through 460,000 ballots
when many of them, 430,000 were clean votes, but yet we got to go through
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them all anyway. Now, they are saying, well, just go back and count all the
under-votes. Well, that should have either been done early on or... I would have
just liked to have gone through the under-votes. We certainly would have finished
our process a lot sooner if we could have just pulled out the under-votes and
looked at those. Again, changing Florida law.

P: Do you think they were correct in giving Gore the votes from Palm Beach and
Dade?

B: Yes, I do, because they were actually counted during a process, and particularly
Palm Beach. We finished the county-wide process. The only thing we did was get
our results in two hours late.

P: If you had been allowed to do the recount, again, the under-votes, and the United
States Supreme Court had not stopped it, could you have completed that in
time?

B: It is funny because, actually, when the Florida Supreme Court ordered a recount
of those under-votes, Palm Beach was not included in that [and] Broward was
not included in that, because we had already done our counts, so they were not
going to have those counted again. It was just the counties where the counts had
not been done.
P: The United States Supreme Court rules five-four to stop the recount. The main
part of that decision is that all the different standards would violate the
Fourteenth Amendment. It is very interesting in two ways, because the Supreme
Court generally respects states' rights and, secondly, has reluctantly decided
cases under the Fourteenth Amendment.

B: Right.

P: So what was your reaction to that five-four decision?

B: As I said, I actually had a bigger reaction from Justice Scalia putting a stop to the
counts talking about irreparable harm. I thought that was a reach. I certainly did
not see any irreparable harm, but it certainly convinced me how they are going to
rule. If they had five votes to just stop everything, it was pretty clear which way
they were going. As I said, the standards always concerned me. It just struck me
as, you know, I do not care if you are Democrat, Republican, to me, this election
was so statistically close, it could have been just as easy Gore a few votes on top
and Bush being the one seeking the recounts. I am totally convinced, had it been
the other way around, we would have heard George Bush saying, let us count all
votes, and we would have heard Al Gore saying, they have been counted.
Instead of Sore Loserman for Gore [referring to protesters outside his office who
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had signs punning on "Gore-Lieberman"], they would have come up with
something else for Bush-Cheney. It was so statistically close, and it just struck
me. I remember sitting there watching it and the night before having dinner with
Bruce Rogow, just amazed that we can elect a president by counting dings and
nicks and spit-marks, and everything else in Palm Beach County, Florida, is
going to affect the whole country. It just struck me as odd. You know, the fact that
Broward, I thought, had, four days into the recount, relaxed their standard, and
they went from 170-odd votes to 570 votes like nothing. So I do not necessarily
disagree with what the U. S. Supreme Court was saying. You should have a
procedure for manual recounts, because what if the machines are not working?
There has to be a provision to go in there and look at these ballots. But you got
to have a standard, and what bothers me more than anything we are now five
months after this election the legislature has nothing on the books to come up
with a standard. The only thing in the legislation I saw was to decertify punch-
cards, but you are going to have the same problem. Now, what happens with
Opti-scan, and what happens when it is circled instead of colored in, and
checkmarks? We have no standard to count those votes.

P: [U.S. Supreme Court Justice] John Paul Stevens had a really stinging dissent,
said the court had acted unwisely. Justice [Ruth Bader] Ginsberg felt they should
never have taken the case. Yet the U.S. Supreme Court presented their decision
as per curiam, as speaking for the court, and it clearly was not unanimous.

B: Well, the interesting thing to me is seven of the nine justices found problems with
Florida law. I think that is significant. Now, they disagreed on what is the remedy.
Four of them felt we ought to be letting them continue, and five of them said we
ought to put a stop to it. But just the fact that seven out of nine agrees there are
problems with Florida law, I think, is enough that Florida needs to take note. I
know Justice Stevens felt that this was going to do a lot of damage to the
judiciary. To me, the country is so evenly split on this thing. I mean, you really got
a 50-50 election, and people are critical. People are critical, as I said, of the
judiciary. They feel the judiciary acted politically. We have such moves underfoot
now in our Florida legislature to take away a lot of the independence of the
judiciary. I think that is a big mistake. I mean, I think that is what Justice Stevens
was talking about, that people are going to feel that judges are acting politically
and maybe they need to re-evaluate the independence of the judiciary. I still feel,
and I felt going into this, I am a judge, I am supposed to be non-partisan, and yet
to put a judge in the middle of this most partisan process is difficult. The reality is
we ought to be able to make decisions because we think this is what the law
demands, not because of the winds of popular opinion, not because a judge
fears he is not going to get re-elected. We ought to be able to decide because we
think this is what the law demands us to do and for no other reason. That
becomes all subject to debate, now, and I kind of think that is what Justice
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Stevens was talking about.

P: Well, it is the first time a court has picked a president.

B: Absolutely. But I do not know the other answer, and I do not know how this thing
would have ever come to an end had they not rendered a decision. As unpopular
as that decision was, I am not quite sure what would have happened because,
you know, they are going to the courts, to the courts, to the courts. The rules are
changing, the standards are different. People talk about, well, Bush certainly
does not have a mandate. I do not think anybody would have had a mandate
going into this thing, because it was so equally divided.

P: Now, David Boise [Gore lawyer] said that he knew the court would be political, he
did not know they would be partisan.

B: Right.

P: He also said, it would not have mattered what the Florida Supreme Court did if
they had set standards, [the U.S. Supreme Court] would have said, well, they are
legislating, not interpreting; if they did not set standards, they were going to lose
based on the Fourteenth Amendment.

B: Well, I disagree, because I think had the Florida Supreme Court come out and
said, we interpret the intent of the voter to mean any indication on a punch-card
that evidence is, you know, a vote should be counted, or on the other hand, we
interpret that to mean unless the voter clearly followed the instructions, votes do
not get counted. I mean, I think they could have gotten away with that. To me,
the biggest problem is it is being done differently everywhere. I found that to be a
problem. How is this right, you know, in Broward County, what was not a vote on
Tuesday is now a vote on Friday, because we have decided to change the way
we look at these things, and that would never be a vote in Palm Beach on any
day or certainly not a vote in Dade because they are not counting any votes. The
whole process struck me as not particularly fair.

P: Why do you think the Florida Supreme Court did not set a standard? Because
when the Supreme Court first sent the case back, that is obviously what they
were asking.

B: That was a concern, and I do not know why they did not. They might as well have
because, really, dates were changing, time limits were changing, everything else
was changing.

P: That is right. They could not have been any worse-off.
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B: True, and I think had they set a standard, quite honestly, I am not even
convinced the U. S. Supreme Court would have halted the statewide recount,
had there been a uniform standard. They went up to Tallahassee to count all the
under-votes still with no standard, and I think that is what really got the U. S.
Supreme Court to say enough already. That is my guess.

P: So, if the Florida Supreme Court had had set a statewide standard and counted
all the votes....

B: We are going to count all the under-votes, they should apply this standard. I am
not so sure the Supreme Court at that point could have found this problem still
exists. Now, they might have said, well, maybe you are changing the law. But
they are really not changing the law. They would have been interpreting the law
that says you are to determine the intent of the voter.

P: Intent of the voter is a little vague.

B: Exactly.

P: What do you think the outcome would have been had they done a statewide
count? We see apparently by the New York Times count that Bush would have
won anyway.

B: Or the Miami Herald. It is funny, we have seen recounts now from Miami Herald,
more recently the [Orlando] Sun-Sentinel did a recount, Palm Beach Post did a
recount. Every one is different. Their numbers are different, the number of votes
are different, how many they found for Gore are different, which leads me to
believe that manually-recounting the punch-card ballots is not a very accurate
process, not a very reliable process. I am convinced, quite honestly, that no
matter how much America wants to know who won this election, I do not think we
will ever know who won this election. I look at it and I am amazed, because what
are the odds you are going to have such a close election, not only close across
the country but particularly in Florida, and now here in Palm Beach County we
got that wonderful butterfly ballot to add, and you got the eyes of the world
coming down here and looking on it. It was amazing. I think had any county in
any state across the country been put under the same microscope, they would
have found just as many problems, particularly with punch-cards.

P: I talked to [U.S. Senator from Florida] Bob Graham about this, and he had said
senators from Washington and Louisiana and Illinois had come to him and said, if
they had looked at our state, it would have been worse.


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B: Right. They were probably wiping their brow saying, thank God.

P: Another issue that is interesting to me, they talk about judicial partisanship, but of
the seven Democrats, three voted against having...


B: You are talking about the Florida Supreme Court?

P: Florida Supreme Court, the vote was four-to-three, not seven-to-zero, and one of
the justices voting no was an African-American justice.

B: Judge Leander Shaw. Right.

P: So does that not indicate that they were voting the law rather than politics?

B: I do not believe the Florida Supreme Court ever acted partisan. That was never
my impression. I think what is clear is that the Florida Supreme Court was trying
to give effect to the law that obviously had been intended. Number one is to allow
a manual-recount of votes, and number two is to make sure all votes get
counted. I think if you go through the election law, that is clearly the intent of the
legislature. The problem is the way it was worded and drafted was so horrible
that it allowed Katherine Harris to say, I am not giving you more time, I am not
giving you extensions, I am not going to accept this, I am not going to accept
that. Was she right in doing it? I do not think so. But did the law allow her to do
it? Sure, and that was a problem. As I said, if she had come out from day one
and said, we have got overseas ballots not being counted until November 18
[and] we are going to give canvassing boards until that date, I do not think they
would have ever touched her, and I do not think they would have ever fooled
around with all of this. But as I said, she would have certified this election on
November 6 if she could have, and that was the biggest problem.

P: Comment on the recommendations by the elections task-force for reform of the
system. For example, do you think there should be a uniform statewide machine?
Should all the machines be Opti-scan?

B: Obviously, if you have uniformity in the equipment, then you could have a state-
wide uniform-standard dealing with recounts, when they are appropriate, when
they are not appropriate. I do not think the United States Supreme Court opinion
requires that, and they acknowledge that certain counties, because of money,
are not going to be able to fund this kind of equipment. You go up to North
Florida to some of these small counties, they do not have the tax-base. If the
legislature is not providing the money, which they have not indicated they are so
far, then it is going to be up to the individual counties to buy this equipment, and
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it is going to be very expensive. So, I do not know that that is required; I think it
would be helpful. I still say, and, you know, the supervisor in Volusia had said to
me, we were up in Tallahassee, said, you know, we were trying to find a way to
teach people, this is how you vote. So, next to their names when they sign in to
register, we had a little bubble. We make them sign in, fill in the bubble, and we
said, that is how you vote. Sure enough, they do the manual-recount, they still
get them circled, handwritten, little checkmarks. The key is voter education. I
have never understood the voters across the state, you know, I can understand if
your vote did not get counted because it is an under-vote, but if you vote for two
or more candidates, I do not know how you can complain to anybody that
somehow they are disenfranchising you. I mean, you got to know you can only
vote for one, or neither one counts.

P: Well, it is a sad commentary on the literacy and the ability of our voters.

B: Absolutely. What was frustrating for me was to watch Congressmen Wexler and
all the senators up there talking about the disenfranchisement. They have known
about this. This is nothing new, apparently, to elections. We had more under-
votes, I think, in the 1996 presidential election than we had in 2000 in Palm
Beach County. There was God knows how many under-votes and over-votes up
in Duval County this past election. This stuff has been known. Had any
supervisor of elections gone to their county commission four years ago and said,
by the way, I want $10,000,000 to buy new voting equipment, they would have
been laughed out, and the same public would have been in an uproar that they
were going to spend this money. Nobody would spend money on voting. Well,
unfortunately, we have had to now pay the price for that, and now all of sudden
people do not mind spending the money, I guess.
P: As I recall, it cost something like $525,000 to recount votes just for Palm Beach
County, and Katherine Harris' legal bills were over $1,000,0000.

B: Over $1,000,000, and that is crazy.

P: So that is pretty expensive right there.

B: Absolutely.

P: Also, I noticed that the state spends $70,000,000 a year advertising the lottery
but only $7,000,000 advertising voter education. Maybe we need to change our
priorities.

B: I do not care, you could have a system where you go in there and write the
candidate's name, if you teach people and explain to people what is going on,
you can educate the public a lot less expensively than having to pay all this
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money for all this equipment.

P: Should felons vote?

B: Yeah. I mean, we allow felons to have limited restoration of their civil rights after
a certain period of time, and they can apply for that. I think that is a little obscure
to still require that just all felons be precluded from voting. I think they should.

P: It certainly would simplify things for election supervisors.

B: Sure.

P: What lessons have we as a country learned from this election?

B: I certainly hope we have learned that when people tell you to get out and vote
because your vote counts, it really does. All said and done, I do not even know
what the nationwide percentage of eligible voters who went to vote was; it
probably was not very high probably about 60 percent or something.

P: Less than that.

B: Less than that. That is a pretty sad commentary, that as close as this election
was, there are still 40 or 50 percent of the folks who never went to even bother to
vote.

P: And those are just the eligible voters; a lot of people had not even registered to
vote.

B: Right. So that is pretty sad commentary.

P: What about the Moter-Voter registration. Do you think that helps?

B: Sure. Absolutely. But it is funny, during the recount process and as we started
looking at these ballots, I remember talking to Dennis Neuman, who is one of the
Democratic party's lawyers, and I said, you do not need to get people out to vote,
you need to teach people how to vote, because it was obvious that [there were]
just a lot of problems with what seemed to be Democratic ballots.

P: Are you aware of any specific discrimination against minorities?

B: No, and I never bought into this roadblock [referring to claims of roadblocks set
up in Florida to disenfranchise minorities] and some of this stuff. I think that was
really more to politicize the issue. I am certainly not going to tell you
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discrimination does not happen, but I certainly here in Palm Beach County did
not see anything remotely... There were problems. People came out in such high
volumes that the polling-places were ill-equipped to deal with them. They could
not get through on the phone lines. I still say the people who just bitch and bitch
and bitch, where are they on Election Day when they need help and they need
volunteers and they need poll-workers? People need to get involved, people
need to take an interest, people need to learn themselves how to make their vote
count.

P: How has this election changed Palm Beach County?

B: Other than being the butt of all the jokes across the country? I think Palm Beach
County has clearly, whether the legislature does away with punch-cards or not,
placed themselves in a position where they have to, and if it means the county
commission finding the money, they are going to do that. I look at it in a different
way. I know friends of mine joke, and they have all their Florida jokes. To be
honest with you, really what happened in this election shows that this is still the
best country to live in. We can survive almost anything. People may not like it,
but here we have a new president, and things go on. I just hope people learn by
it, learn from their mistakes that we have got a problem that needs fixing and it is
really going to take the individual citizen to do it.

P: How has this experience changed your life?

B: Well, other than now I go walking down the street and everybody recognizes
me... it has been interesting. People have been very nice. I will tell you that I
probably got about 500 letters from across the country and 800 e-mails of people
just saying very nice things, people who had just seen me on TV or whatever.
People have been very, very nice, and that certainly made it easier on me. If
everyone was heckling me, I might not want to leave my house.

P: How do you think it has impacted Theresa LePore?

B: I think Theresa has had a rough time with it. Anybody who knows Theresa will tell
you she is the nicest woman you would ever meet. You know, she designed the
ballot obviously without any evil intent; it was only to assist people. I personally
did not find it that confusing. I think if you take a second to look at what you are
doing, you can figure it out. Both parties had the sample ballots. Both parties had
an idea. Maybe it was not an exact duplicate, but it was enough to tell people you
got to be careful, that you got names on both sides. She has gotten some
horrible hate-mail. It is amazing that people will buy a Mickey Mouse card and
the things they will write in it, which I would not even repeat on tape. So she has
had a rough time. She clearly made a mistake, it is something she will never do
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again, but I just think she has been unfairly demonized over this.

P: Do you think that decision cost Al Gore the election?

B: I think a lot of decisions probably cost Al Gore the election. Coming off a
president, and although Clinton was not so professionally liked for his personal
life, he was always a popular president. We had a great economy. Gore should
have cleaned up on this election. Maybe that says more about Al Gore than it
says about Theresa LePore causing the election. I know when I was in
Tallahassee at a dinner, one of the AFL-CIO [American Federation of Labor and
Congress of Industrial Organizations] guys came up to me and he recognized me
from Palm Beach. He was just saying how they wanted to go into Tennessee,
and the Gore campaign, oh no, do not worry about Tennessee. They wanted
different states, West Virginia, no, that has gone Democrat all these years. He
thought it was a very poorly-run campaign, and I just think to be this close, it had
to be. So, yes, because it was close, we can all look and find this decision, that
decision. I certainly would not say Theresa LePore cost him the election. As it
turned out and as fate would have it, you know, you come to Palm Beach and, all
of a sudden, let us just go vote in Palm Beach County and forget the rest of the
country and that will decide the national election. I do not think that is right. I think
there are a lot of problems, and as I said, there are an awful lot of other states
that were very close that went to either Bush or Gore. Let us go back and put
them under the same microscope, and who knows what you are going to find
there. So I think it is a little premature to say that ultimately caused Gore the
election.

P: Particularly Tennessee, his home state.

B: Lost Tennessee, and they lost Arkansas, and they lost West Virginia, which had
not gone Republican in years.
P: Frank Cerabino of the Palm Beach Post wrote, I thought, a good column about
the election, and he said at the end that the county's legacy was that Bush got a
fair shake.

B: I think he did get a fair shake, and I think people assumed that you have got a
three-Democrat canvassing board. I think that was obviously part of the spin,
they are out to steal the election. I thought he did get a fair shake. I thought we
conducted ourselves as fairly and openly as possible so that there really could
not be any dispute, they were doing this, they were doing that. I mean, you are
never going to please the partisans on either side. So I tend to agree.

P: Is there anything that we have not covered you would like to comment on or bring
up?
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B: I think we have covered it all. My hope is, you know, we need to get the
partisanship and the appearance of partisanship out of elections. Now, obviously
the campaigns are partisan, but if you are going to recount votes, that really
ought to be a non-partisan issue. Should you get a manual recount? Let us look
at the law, what does the law say. Particularly in a national election or a state-
wide election, you either have a state-wide recount or you do not have any at all,
because as I said, I do think it is the appearance of partisanship to go into
selected counties.

P: Do you think the Florida legislature will come up with a standard?

B: I do not know. We got invited up there to [the Committee for] Rules, Ethics and
Elections, was doing a hearing one day. That is what I talked about, was,
whatever you do, let us remove the partisanship out of the process. Right now,
the legislature does not seem too intent on doing anything. We have a
Republican legislature and, whether right or wrong, I think they feel that if there
are no changes, it benefits them. I am not so sure they are going to be quick to
do anything, but to me, that is a bipartisan issue because it could have just as
easily been the other way around in this state.

P: On that note, we will end the conversation. Thank you very much.

B: Thank you.


[End of Interview.]




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