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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida
Summary of Interview (October 16, 2001)
Cardwell discusses his background as a former Director of Florida Division of Elections,
talks about the confusion on November 7, Holland and Knight's initial representation,
and becoming a CNN reporter.
Cardwell details working for CNN as a legal expert and believing legal maneuvering
would last only a few days--not thirty-six days. He discusses a typical day as a CNN
analyst, working with Bill Hemmer (CNN news anchor), and appearing on various CNN
news programs. He recalls the news-breaking confusion of December 4 when the U.S.
Supreme Court asked the Florida Supreme Court to clarify its decision in extending the
hand recounts. He was continually dealing with how to keep the many court cases
organized for CNN viewers.
Cardwell talks about meeting famous politicians--many who just wanted to be in the
public limelight. He gives his views of Warren Christopher and James Baker as the point
men for both sides. He feels Republicans were better organized and their tactic was to
make Democrats react rather than take the offensive. The most discussed question on
CNN commentaries was why Gore spent so much time in the protest phrase rather than
in the contest phrase, that is, Gore was always looking for more ballots going his way.
He recounts the impact of Florida's Sunshine Laws on the public viewing audience,
such as broadcasting court proceedings.
Cardwell comments on the way supervisors of elections count overseas ballots--usually
counting them all--whether or not they are legal. He discusses the constitutionality of a
re-vote, comments on the flaws in manual recounts, and voters not being informed
about how to vote correctly. He speaks about Bush attorneys filing suit to stop the
manual recounts based on the Fourteenth Amendment's "equal protection" clause. He
discusses why the Bush team did not want to do a statewide recount--as first suggested
by Gore--and why Gore did not follow up on this line of strategy.
Pages 20-24Cardwell details Florida's decentralized elections system and no uniform
standards among the sixty-seven counties, and feels that the Director of the Division of
Elections should have stepped in to establish standards and offer guidance early in the
process. He compares how he handled election problems as Director of Elections
(1978) with the way problems were handled during the 2000 election. He brings up the
issue of the "may" and "shall" ambiguous wording in the election statutes for
certification. He takes up the issue of canvassing boards dealing with opinions from
Attorney General Butterworth or Secretary of State Harris.
Cardwell agrees with Judge Middlebrooks's decision of November 13 that it was a state-
-not a federal--matter. He goes on to talk about his book, Elections and Ethics: The
Law in Florida, and refers to the protest and then the process of the contest phases. He
then discusses Harris's inflexibility in counting the votes but adds that she was
consistently inflexible--and she should have kept her office closed on that Sunday rather
than opening it to await the selected counties' manual recounts.
Cardwell recounts that the Bush team lacked confidence in winning, hence the need for
the Gore team to keep counting. Cardwell questions why Gore team never asked
Florida Supreme Court to block the certification. He then takes up the controversial
issue of the felon list. He describes the election as "the perfect storm" in which too
many issues all collided--felon voting, butterfly ballot, malfunctioning equipment, and a
close vote. He thinks that the overseas ballots controversy was the "key to the
election," and if Lieberman had not backed off the issue then it might have become
Cardwell discredits the notion that chaos and conspiracy reigned in Florida because
every process was viewed by the public. He also thinks that Jesse Jackson's influence
was not significant on voting recounts and that the Motor Voter Act presented some
problems--as predicted by supervisors of elections. He views Judge Terry Lewis's
decision about letting Harris "exercise discretion" as not resolving the issue and that is
why the Florida Supreme Court had to step in. He cites other instances of Harris's
inflexibility which did not put her in a good light.
Cardwell discusses Judge Middlebrooks's decision about this being a state, not a
federal, issue. He also believes Governor Jeb Bush would not certify a slate of electors
"other than the ones pledged to his brother." He declares how "shocked" he was when
the U.S. Supreme Court took on this case. He talks about Boies's perception of "timing"
and thinking the supervisors of elections in the selected counties had more than enough
time to do a recount--hence the reason not to go directly to the contest phase. He cites
another big surprise decision--that of the November 26 date which made the Florida
Supreme Court look as if it were creating a new law. He feels the Florida Supreme
Court should have given a good explanation about the reason for selecting this date.
He states that the court "couched" its ruling in terms of the Florida Declaration of Rights,
which includes the issue of disenfranchisement and that is why the court overruled
Cardwell speaks about the tension between the Florida legislature (Republican) and the
Florida Supreme Court (perceived to be Democratic) and how the media did not pick up
on this combativeness. He cites reasons why the Florida Supreme Court jumped in
before either team requested rulings. He discusses the Seminole County controversy
concerning the supervisor of elections (Sandra Goard). He believes it was not illegal for
Republicans to add numbers to absentee ballot request forms, but it is a public records
issue because the request forms were altered. He describes absentee ballot voting as
a "pendulum"--going from one extreme to the other regarding counting them correctly.
He feels that Harris's partisanship was inevitable--and if a Democrat had been
Secretary of State the situation would have been the same--ruling in the Democratic
Party's favor with each decision. He explains that political leanings will always impact
Cardwell takes up the subject of Governor Jeb Bush's role in the election. He then
discusses the Gore team's political/public relations strategy which superceded his legal
strategy. Gore wanted to postpone certification because that would have signified that
the election was over--even if he did go to the contest phase after certification. He then
describes why Miami-Dade County stopped its recount and speaks of his friendship with
Supervisor of Elections David Leahy. He feels that this post-election process might
have eventually led to a constitutional crisis. He refers to the legality of the Florida
Supreme Court extending the certification date to November 26. He takes up Harris's
role as chief elections official and how she changed that office's role during this post-
Cardwell speaks about the discretion of Florida's canvassing boards in deciding about
recounts and the option to stop doing a recount. He discusses Bush's legal team
asking the U.S. Supreme Court for a writ of certiorari to the Florida Supreme Court
stating that the Florida Supreme Court had rewritten state law. He was surprised that
the U.S. Supreme Court took the case at this early stage but realized that the U.S.
Supreme Court would be the "ultimate arbitrator" of this entire process. He points out
Justice Scalia's "vitriolic response" when the Florida Supreme Court ordered the
statewide recount of the under-votes. He takes up the Nassau County controversy in
which there was a big discrepancy in the number of votes. He reviews the Joint
Legislative Oversight Committee on Electoral Certification's role and Tom Feeney's role
in the post-election process.
Cardwell refers to the Tom Feeney-John McKay diverging views on the legislature's role
in the process of appointing electors. He cites the issue of there being no legal
mechanism for a statewide recount until the Florida Supreme Court ordered it. He then
brings up how the Democrats wanted Judge Sauls removed. He reports on Judge
Sauls's take on the upcoming trial and ordering the ballots moved from Miami-Dade
County to Tallahassee--a welcomed delaying tactic for the Bush team. He agrees with
Judge Sauls's reasoning on not counting those votes. He talks about the Florida
Supreme Court's view of the Sauls decision. He says that there was no direct appeal
from Sauls to the Florida Supreme Court--it was actually to the first district court of
appeal which certified as soon as they got it but did not take the case--which might have
led to a "different outcome." He states that the district court of appeal could have had
hearings, and their "opinion would have been what went up to the Florida Supreme
Cardwell presents his view on how each attorney presented his respective case before
the U.S. Supreme Court in early December. He also compares the Florida Supreme
Court and the U.S. Supreme Court on the first go-around: He says that the Florida
Supreme Court was "very knowledgeable, very prepared," and the U.S. Supreme Court
seemed to be "struggling" and not "as well prepared as it could have been." On the
second go-around, the situation reversed. Regarding the remand decision, he thinks
that Florida Supreme Court felt "rebuked." The Florida Supreme Court chose to deal
with the appeal from Sauls rather than with the remand. He notes that the "equal
protection" clause of the Fourteenth Amendment still has not hit the "radar screen" at
this point. He gives reasons why the Florida Supreme Court ordered just the under-
votes to be counted.
Cardwell talks about making predictions for CNN. He says Florida Supreme Court
wanted the circuit court to "fashion an order that tells these canvassing boards what to
do" (regarding setting standards in recount). He gives his view of Chief Justice Charles
Wells's "emotional" dissent. He discusses how the media focused on the political
affiliation of the judges and canvassing board members. He feels that if the U.S.
Supreme Court had not intervened and December 12 was the cut-off date, then the
votes could have been counted on time. He recounts how many supervisors of
elections were calling him--and looking to CNN--to see if they should count all the
under-votes or just those that had not been counted before. He describes the "chaos
throughout the state" because of the lack of court direction.
Cardwell says he was "flabbergasted" at the U.S. Supreme Court issuing its opinion to
stay the recount and the court using the phrase that Bush would suffer "irreparable
harm." He cites the fact that at no time was Gore ever ahead in the recount process.
He responds to those who said that was a paradox that the U.S. Supreme Court
decided the election when the Republicans had said that this election should not be
decided in the courts. He says that "the election had been decided; the U.S. Supreme
Court just made it stick." He states that the issue of the "safe harbor" date of December
12 was not a "set deadline," not even December 18. He argues that it should be
January 4 when Congress assembles to receive the "reports of the electors." He
expands on the history of the controversial presidential election of 1876 and the "safe
Cardwell discusses the final 5-4 U.S. Supreme Court decision and being "struck" by the
court using the "equal protection" clause and the court not wanting "Bush v. Gore to be
cited as precedent to them in another 'equal protection' case." He states that the court
had to find a "federal question to rule on because they are basically stopping a state
proceeding. Second, they had to find a way to stop it and drive a nail into it." But he
claims that the U.S. Supreme Court never had any reason to take the case.
Cardwell does not feel that a constitutional crisis ever existed because judicial
proceedings were ongoing. He says that a constitutional crisis would have existed if
Congress had to decide the outcome. He speaks of the 5-4 decision as going down in
history as looking "incredibly political." He agrees with Alan Dershowitz's statement in
his book that the "Rehnquist court is an activist, right-wing, Republican court"--but adds
that it is not a "true conservative court." He describes the U.S. Supreme Court as
having "damaged its legitimacy somewhat." He analyzes the attorneys on both sides
and their arguments--"under extremely trying circumstances." He does not feel that
Ralph Nader made "the difference" or that Palm Beach County's butterfly ballot cost
Gore the election. As to who won the election, he says that "it was a tie."
Cardwell claims it was a "masterstroke" when Gore chose Lieberman. He states that
the Republicans were "a little arrogant" by thinking they were going to win. He thinks
that the media coverage of the legal issues was good, but not on the political front. He
assesses the Election Reform Act of 2001, but feels that the supervisors of elections
should be appointed, not elected. He presents his views of the Civil Rights
Commission's findings and downplays the disenfranchisementt" issue. He remarks that
money for voter education has to be "spent in the right place," that is, places where
voters do not know how to vote. He feels that the provisional ballot is a "good idea." He
describes how the post-election process has changed his life, such as visible
recognition and having a greater respect for the news media.
Interviewee: David Cardwell
Interviewer: Julian Pleasants
Date: October 16, 2001
P: This is October 16, 2001 and I am in Orlando, Florida, talking with David
Cardwell. If you would, please give me your legal background and your
experience in state administration.
C: [I am a] graduate of the University of Florida College of Law. After graduation,
with a brief stint here in Orlando as a litigator, I moved to Tallahassee and
worked in state government. I was assistant general counsel to the Secretary of
State and one of my responsibilities in that position was elections. I handled
rendering of opinions and advising the Division of Elections and then participated
in a rewrite of the Florida Election Code in 1978. In 1979, I moved to the division
as the first in-house, full-time election lawyer for the state of Florida. Then, when
Mary Singleton, who was the director of the Division, resigned to run as a
Lieutenant Governor candidate with Claude Kirk [Florida governor, 1967-1971]
in the 1978 election, I was moved to Division director. At the time, I was the
youngest division director in state government. I was Director of the Division of
Elections through the gubernatorial election and through the very first initiative to
ever be placed on the ballot that was the one that would have authorized
gambling casinos in south Florida. After spending that time at the Department of
State, I moved over to the legislature, where I served as a staff director in the
House of Representatives. My responsibility there was ethics and elections. I
handled the ethics opinions for members of the House, but also worked on
election law changes and studies of redistricting and other things in [the] election
law area. I then left state government, moved to Lakeland, where I served as
City Attorney for the City of Lakeland for three-and-a-half years. While there, I
wrote a municipal election code which Lakeland was the first to adopt and then it
was adopted by the Florida Association of City Clerks as a model for cities
around the state. I served as legal counsel to the Florida Association of City
Clerks for several years, primarily dealing with election law issues. In 1982, I
joined Holland & Knight [law firm], and among my clients were local governments
and elections officials. I represented the Supervisor of Elections in Polk County
for over twenty years until her retirement last year. I have also represented the
other supervisors throughout the state, as well as political committees,
candidates, city clerks, political parties, and anyone else involved in the elections
process. I have also been involved in the initiative process. I have written
several of the initiatives that have been on the ballots, constitutional initiatives,
and also have defended those before the Florida Supreme Court.
P: Just as a point of interest, did you have any issues at all that you had to face
when you were Director of Elections that would, in any way, compare to what
happened in the election of 2000?
C: None whatsoever.
P: Was this election an issue that was totally and completely unexpected, or was
there some preparation for this possibility?
C: I would say neither, [it was] somewhere in between. Going back to when I was
Division director, we often said that at some point we were probably going to
have some election that was so close, we would not be able to sort it out.
Historically, those have occurred, but at the local government level or county
level. We have never had a state-wide election [that close]. While election
officials have said, it is going to happen someday, we were not prepared for it
because no one ever said, let us sit down and be ready for it. What we found
was that the system just was not quite ready or able to handle the tension that
was placed upon it after November 7, .
P: What is your political affiliation?
C: I am a registered Democrat.
P: Talk about what happened to you on Election Day.
C: Election Day was one of the quieter days I have ever had. I did get some phone
calls, isolated instances of supervisors, particularly Polk County, where I was
representing the supervisor there, [wanting to know] what to do with certain
issues that come up every Election Day. What I did notice when I went to vote
and as I was sort-of watching things during the day, it did seem like it was a very
large turnout, which we expect in a presidential election, that there did seem to
be some sort of rumbling that we could not quite figure out coming out of south
Florida. I spent election evening in Bartow at the supervisor of elections' office. I
was in the counting room, advising the canvassing board, we did have the TV on
to CNN [Cable News Network], so we saw some of the flip-flopping going on
back and forth. For an election of that magnitude and that number of candidates,
we finished quite early. We were done before midnight. In fact, I recall as we
were leaving, because there had really been no controversies that evening I
remember as I was leaving, I commented to the chairman of the canvassing
board, this is one election you did not need a lawyer. I got in the car, by the time
I got home and turned the TV on again, I said, oh my gosh. I had to make a
decision then, I think this was about one o'clock in the morning. I said, do I go
and try to get some sleep or do I stay up and watch this? Because I was
absolutely transfixed watching it. I finally decided sleep was probably the better
option, and got in a few hours [of] sleep before the phone rang at 6:30 saying,
get to Tallahassee.
P: The phone call was from CNN?
C: The phone call was from Martha Barnett [president, American Bar Association,
2000-2001; partner, Holland & Knight law firm].
P: Who is currently President of the American Bar Association.
C: Just left office, but she was at that time, President of the American Bar
Association. Martha heads the public law practice in the Tallahassee office. She
called to tell me that we had been contacted by several people inquiring about
the firm's availability to serve as legal counsel in what was going to be the
election protest and contest.
P: This is Holland & Knight, for the record.
C: I have been doing election work since I have been with the firm, so whenever
there is an election-law team formed, I am always on the team. So she said, get
to Tallahassee and we will sort through what we are going to do. Now, what was
sort of ironic was, she said, we have got some meetings this afternoon
scheduled, that when I first called to book my flights, I booked a mid-morning
flight going up and I booked an evening flight coming back and I did not pack
anything. As I was getting ready to leave the house and head to the airport, my
wife said, where is your suitcase? I said, I am coming back tonight. She said, I
do not think you are coming back tonight. I relented and at least packed for one
night. She obviously had more foresight than I did.
P: Who had requested that Holland & Knight be involved in this case?
C: I do not know who made the specific calls to Martha, I think some may have gone
to Chesterfield Smith [President of the American Bar Association, 1973- 1974]. I
was not a participant in those calls. They were handling the engagement side,
could we be engaged, did we have conflicts, was it the proper position [for] the
firm to take? What I was asked to do as soon as I arrived in Tallahassee was to
assemble our election-law team, start identifying issues, start putting together the
legal authority or what the statutes said so that we could be in a position to
respond quickly. I pulled together the people in the Tallahassee offices on
election work, and then by phone and e-mail we got other people in the firm, then
started bringing in some others we thought we would be using if we did in fact get
P: How many people in all would you have had?
C: The initial team I tried to keep relatively small so that it was manageable. The
initial team was around five or six. But we also knew, in fact, the more we got
into it, we knew that it was going to be a significant engagement. If we were
representing one or the other [of the] candidates, we literally have issues arising
from the Panhandle to the Keys. In fact, that was one reason I think some of the
candidates were interested in us, because we had offices throughout the state.
We expected we were going to probably ramp-up and have dozens of lawyers
P: That was the case?
C: We never got to that point, because the firm made the decision on Wednesday
that it was going to not represent either candidate. We just had too many
conflicts. Holland & Knight represents a significant number of media outlets
throughout the state. We represent most of the major newspapers, a lot of
television stations. There was a real concern that if we got into this that we were
going to run into conflicts where the media wanted access to something, and we
would be serving as an advocate. When it was very apparent that this was
moving quickly and the people that had contacted the firm needed an answer
immediately and we could not get the conflicts resolved, the decision was made
that we were not going to participate as an advocate for either side.
P: Did you disband the team at that point?
C: We were in the process of disbanding the team. In fact, what happened was that
we were in a conference room in the Tallahassee office, about five of us working
on it. Martha [Barnett] came in, this is now on Thursday, Martha came in at
P: That would be November 9.
C: Martha came in and said, we have decided to sit this one out. She said, come
with me, I will take you to lunch, then everybody can figure out how to get home.
We went to lunch and talked about how, from an election lawyer's standpoint,
we had just missed the Super Bowl, World Series, or whatever you want to call it.
We were going to have to sit on the sidelines and watch this one. We headed
back to the office, everyone dispersed. I was sitting there trying to work out how
to get back home to Orlando when Martha came in and said, I just want you to
remember when this is over, would you like to be on television? She was on the
phone with CNN. It was a producer at CNN [who] knew Martha from the
American Bar Association. This producer said, Martha, I am asking what may be
an impossible question. Do you know of any lawyer in the state of Florida that is
knowledgeable in election law, and is neutral? Martha said, he just happens to
be sitting in the room right next to me. So, that is how I got contacted by CNN.
P: Do you know at this point who the original client would have been? Would it be
the Democratic party? Would it be the [Al] Gore [U.S. Vice President, 1993-
2001; U.S. Senator from Tennessee, 1985-1993] campaign?
C: I do not know. I still do not know.
P: Once you were hired by CNN, what process did you go through and when do you
C: Thursday evening, [a woman from] CNN called me back directly to confirm. They
have a producer's meeting around 5:00 [pm] every day in Atlanta, that is when
they sort of map out the next day and what they are going to do. She said that
hiring me had been approved [and] she said, show up at 6:00 am tomorrow
morning at our location over at the [Florida State] Capitol. She said, we will work
you in and just kind of go from there [and] just be prepared. At least, I had been
prepared because I had been doing things for the last couple of days. At that
point, when I went over to the CNN location, I did not really expect that I would
be on the air very much. I thought I would be giving some background
information off-air to their on-air people. When I arrived there, I met the producer
they had assigned to me. She said, come meet Bill Hemmer [CNN news anchor,
1995-present], he is our main person here. I went and met Bill. That was kind of
a thrill because I watch CNN all the time before this and had been watching Bill
on the morning news. She said, Bill, he is on our team, he is our lawyer, our
legal expert. We have got him slotted to be on the air with you at five [minutes]
after seven. That is when I found out I was going to be on the air, and I had
about a half-an-hour to get ready. We started a little after 7:00 on Friday
P: That was November 10. Describe the circumstances and where you were when
you were doing all this filming. Was it a tent set-up?
C: We had not [gotten] in to the tents at that point. On that Friday, there were a
large number of TV trucks that had the big dishes on them that were parked
outside of the Senate Office Building. There is a small street that runs between
the Senate Office Building and the Knott building, a way of getting into the
parking garage. They were lined up along that street. All of the TV stations and
the TV networks had sort of staked out positions around the portico of the Senate
office building. Most of them [were] facing into the courtyard between the two
capitol buildings. That is another thing you learn, that [the producers] want to
see what was going to be seen behind the camera. Most of the interviews were
done with people facing the Senate Office Building with the courtyard and historic
Capitol in the background. It was a different network or a different TV station just
about every five or six feet, all the way around most of the portico on that
courtyard side. I would say probably the most attention you had to pay, as you
were in that area, was to make sure you did not trip over all the TV cables and
power cables that were going in every possible direction. At that time, everyone
thought this was going to be short-term. They had not really gotten to the point
that they were locking down positions. Everything was still pretty temporary,
cable was not yet taped down the way that it eventually would be late. It was
almost like, hey, we can pull out of here on a moment's notice. Most of them
thought they [would be gone soon], some of them already thought they would
have been gone. Bill Hemmer told me that when came down to Tallahassee, he
flew down, he brought two suits. He did not make it back to Atlanta until
P: Nobody would have thought thirty-six days.
C: That is right. No one thought [that] at that time. [They] thought it would be over
P: Where did you eat and sleep?
C: A variety of different places. I went to south Florida for awhile and then came
back to Tallahassee. Particularly in Tallahassee, we were not able to get long-
term hotel reservations. I sort of did a hotel musical chairs. I would be in a hotel
one night or two nights, then I have to go somewhere else, then I might come
back to it. I think the longest I stayed in any one hotel was four nights. I even
got thrown out of one hotel because they told me they did not know if I could
stay, so I was to take all my stuff out of the room, [which] I did. When I called
mid-day to see if I could have the room, [they said] oh yes, you [can] have the
room. So, when I went back at 11:00 that night, they had given the room to
someone else because I had not shown up. [The] day shift did not tell the night
shift. There it was 11:00 [pm], [and I was] a little tired, needless to say I was a bit
upset, but CNN found me another place to say. As far as where to eat, the
media sort of adopted a couple of places for quick sandwiches and all, there is a
Capitol grill on the Adam's Street mall. That was very handy, very convenient to
the Capitol. The lounge and the restaurant at the Doubletree Hotel, I think it is
called Jacobs, sort of became the media hangout. That was where if you
wanted to find some of the media personalities, [you would] just slip in there
every evening after they were off the air. The other place they sort of adopted
was a restaurant on North Monroe called the Cafe Cabernet and you would go in
there just about every single night and you would find everyone eating and
exchanging notes and whatever. In fact, later, when we got to the end, I will tell
you the story about when Cafe Cabernet, everyone's cell-phones and pagers
started going off and the whole place emptied out in five minutes.
The news media did not tend to hang out at the lobbyist places like
Clyde's. I went there, having known about Clyde's from the day it opened. I
saw a lot of people and got some information there that then proved to be helpful.
Particularly since a lot of legislators hang out there, we would sometimes get
some information about the special session that was being talked about. The
news media, for the most part, stayed away from there.
P: Anybody go to the Silver Slipper at all?
C: Some did go to the Silver Slipper. There was also a new restaurant in town
called Cypress that sort of became the in-place with the higher-ups in the
campaign and some of the news personalities. In fact, they were saying there
was one evening when Warren Christopher [chief representative of the Gore
campaign during the 2000 election contestation; U.S. Secretary of State, 1993]
and James Baker [chief representative of the Bush campaign during the 2000
election contestation; U.S. Secretary of State 1989-1992] were there at the same
time. Apparently they got their tables far enough apart so that there was not any
confrontation there. A lot of people talked about Cypress, but probably the big
media hangout was Jacobs at the Doubletree.
P: What did you do about clothes?
C: The dry-cleaners in town were actually swamped. Really did not have time to go
to a coin laundry for other things. My day was typically 6:00 am to about 11:00
pm, so by the time you were done, you pretty much wanted to go to your room,
get some sleep and come back the next day. You really could not break away
during the day because you never knew from one minute to the next when
something was going to happen. What happened was, my wife actually boxed
up some suits, then when it turned cold, she sent me an overcoat, and shipped
them FedEx [Federal Express] to me in Tallahassee. So, I got some clothes that
way. When it came to socks and underwear, since I was not able to get them
cleaned, I just went and kept buying new ones. [The] salesclerk at JC Penney's
at the mall got to know me because I would come in about every two or three
days and buy some more.
P: It must have been a bit of a shock to the people from the North when it turned
rather cold in Tallahassee. I do not think anybody was prepared for that either,
C: As one of them was down from Washington said, I thought we were in Florida. I
said, no, you are in Tallahassee. It turned a little cold. In fact, one the nights
when we stayed out with Judge Saul's trial, it got very cold that evening. I think
though, from the comments I heard from the crew, because we also had some
days that were hot and humid, that they would take the cold over the hot and
humid. When we did eventually move into a more permanent location, we were
inside a tent, and air just did not circulate in there. You could not really put a fan
on because it started moving stuff around that got picked up on the air. It got
pretty warm during some of the days.
P: Describe a typical day, you say you went from 6:00 am to 11:00 pm at night.
How often would you actually appear on camera, and how would they organize
C: They would ask me to get to the site or the truck. We had a dish-truck that was
broadcasting back to the satellite, that was our control point in Tallahassee.
They had the tent set up there. That was where they would have some coffee
and juice and pastries in the morning. That was where the producers sat and
were mapping out the local coverage. I would usually get to one of those two
locations at 6:00 a.m. Since I normally would go on in the morning with Bill
Hemmer, the producers would tell Bill what they wanted to do, then Bill and I
would sit down and figure out what it is that we would do. Bill might ask me to
help him with something off-camera. Once we got to the permanent location,
which was [a] tent on a platform between the Capitol and the Florida Supreme
Court and we had a good view of the front door of the Florida Supreme Court,
that was the scene where you saw the court in the background behind us all the
time. Bill and I had two chairs that were right next to each other. They could
either do a shot where it would be just Bill, or they could pan back and do both of
us. What they usually would do is we would start in the morning. The format that
Atlanta seemed to like the best was for Bill and I just to sort of exchange Bill
would ask me a question and we would talk back and forth.
What we tried to do in the morning was to update people on what had
happened late the day before and then try to, as best we could, predict what was
likely to happen during that particular day. If we knew something was already
scheduled, we would discuss that. We did that from 7:00 to 9:00 [am], at 9:00
they cut over to the morning show which is Daryn Kagan [anchor, CNN, 1994-
present] in Atlanta. They would cut us in at least once every half hour, they
would also be doing other correspondents around. We were told basically to stay
there and always be available. The next break, then, would come at 12:00 noon,
when they would cut to Frank Sesno [senior vice-president, Bureau Chief,
Washington, D.C., Anchor, CNN, 1984 present] in Washington. That was when
we got the, here is what is happening inside the Beltway report. Then at 12:30
was Burden of Proof with Greta Van Susteren [legal issues reporter and anchor,
CNN] and Roger Cossack [legal issues reporter and anchor, CNN]. I was on
Burden a few times, but if we were not on Burden, we were released. That is
when we could go and [quickly] get something to eat.
They usually wanted us back around 1:30, so we were then on from 1:30
to 3:00, again, cutting in about every fifteen minutes, or reporting on something
that was happening. From 3:00 to 4:00 was Talkback Live, out of Atlanta. We
were on that a couple of times, but typically we were off [the air] because they
were doing it with the studio audience in Atlanta. At 4:00 was Inside Politics. We
were usually on that show every day. Inside Politics ran from 4:00 to around
7:00, then 7:00 was evening news. On Inside Politics, I would be talking to Judy
Woodruff [prime anchor, senior correspondent, CNN, 1993-present] or Bernard
Shaw [Washington D.C. anchor, CNN, 1980-2001]. Very often what they would
do, they would team me up also doing multiple interviews or split screen with
Roger Cossack or Bill Schneider [senior political analyst, CNN, 1991-present].
Bill would be giving the political overview, I would be trying to fill in the law, Roger
was giving a legal overview, and I was filling in the Florida specifics. That would
continue up until usually when... we were not on Crossfire, so we got a break at
Crossfire, but they might bring us back from 8:00 to 9:00 [pm], again depending
on if something was happening. 9:00 was Larry King. I was on Larry King once,
I believe, but I was on-call several times, so you would still have to be sitting
there in the chair miked up, ready to go. They would come back after Larry King
for a 10:00 to 11:00 [pm] wrap-up. They typically did that with either Kate Snow
[congressional correspondent, CNN, 1998-present] or Marty Savidge [breaking
news reporter, CNN]. By that point, [Bill] Hemmer, they had sent him home to
get some rest. I would usually be done by 11:00 [pm]. Now and then there were
specials, like during the trial, they said, we are going to do a special, we are
going to run until this is over, so we stayed there real late. The night of the last
U.S. Supreme Court decision, I think we stayed on the air until 2:00 am, trying to
P: Of course, there is always breaking news.
C: Always breaking news, yes.
P: They would cut you in pretty quickly on that.
C: On the breaking news, one incident in particular, was the day of the first U.S.
Supreme Court decision, things had gotten relatively slow. That was one of
those hot, humid days in Tallahassee. Bill and I had been doing everything.
Everyone thought the Supreme Court was ready to decide. Charles Bierbauer
[senior Washington D.C. correspondent, 1992-present; reporter, CNN, 1991-
present], who is the CNN Supreme Court reporter, had said, the time they usually
issue opinions is 10:00 in the morning, nothing has been issued. We waited until
about noon time. [But there was,] he said, no indication out of the media office at
the Supreme Court that anything is coming. They talked through our ears all the
time. They even gave me my own earphone so I did not have to keep borrowing
someone [else's]. So Atlanta said, Bill, David, you guys are released until 2:00.
Bill Hemmer has an incredible amount of energy, he is just always wanting to do
something. Of course he had some extra adrenaline going through all this [and]
the last thing he wanted to do was just sit down and do nothing. He said, David,
let us go over to the courthouse. We had not been over to the Leon County
courthouse in a while. We got unhooked and got out of our chairs and walked
over to the courthouse. We referred to it a few times as a three-ring-circus. You
had the Leon County courthouse, then the Capitol, then the Florida Supreme
Court, all very close, right within walking distance. So, we walked over to the
county courthouse. As we walked up to the rotunda, I think it was Doug
Hattaway [national spokesman, Al Gore presidential campaign, 2000] from the
Democratic party grabbed Bill and wanted to do a little spin. He took Bill off to
the side. I walked into the rotunda where it was just all these lawyers, milling
around, waiting to see what was happening. All of a sudden, someone yelled
out, the Supremes have ruled. Someone said, which ones?
Someone said, I do not know, I just heard the Supremes have ruled. So,
we had a camera location over at the courthouse because we had the [Sanders]
Sauls [Judge, Florida Circuit Court] case and the hearings going on. Marty
Savidge was sitting there. I went out to where Marty was sitting there, and he
was looking at the CNN monitor. I said, Marty what is happening? He said, I do
not know, it just said [the] Supreme Court has ruled and they have not said which
way. About that time, Bill Hemmer grabs me, he comes running back. He has
his pager out, and he says, they are telling us to get back to the platform. I said,
what is going on? He said, I do not know, let us just go back to the platform. We
started walking very quickly over to get back to the capitol. I have one of these
BlackBerry handheld personal organizers which receives e-mail directly. Well, I
am signed up for CNN breaking news. As we are walking back to the capitol, to
our location, I am getting messages on my BlackBerry, and I am showing them to
Hemmer. That is all we knew what we were actually reading on the
BlackBerry. We get back to the platform, sit down, and we are getting miked up.
Bill is the first one, he says, Atlanta, we are here, but we do not know what is
going on. Atlanta says, we are coming to you in a minute. Bill says, wait, do you
not understand? He holds up my BlackBerry, [and says] unless it is on this, we
do not know what is going on! Atlanta said, we do not care, you are the only
crew that is in front of a camera, so we are coming to you. At which point,
Hemmer turns to me and says, welcome to twenty-four hour news.
P: Was this the Supreme Court remand decision? That was December 4, I think?
P: The great problem, obviously, is, how did you keep all of these different court
cases organized and straight? There is Seminole County, Martin County, the
Palm Beach cases, Eleventh Circuit, Leon County courthouse, Florida Supreme
Court, U.S. Supreme Court. How did you manage to keep all of these legal
issues and cases organized?
C: I ended up with a huge stack of documents. When I was not on the air, I was
reading all the briefs, reading all the opinions, and helping the on-air people try to
understand them. I went through several legal pads trying to keep them all
straight. There were times that we, I think, did get confused. We probably were
more confused about the cases when they were at the Eleventh Circuit. For
some reason, that just seemed to be out-of-the-track. Martin and Seminole, the
absentee ballot cases, those were so different, it was fairly easy to keep those
straight. Where the bigger problem was, is that there were a lot of, some refer to
them as renegade cases, one person called it a wild-deed case. They are off by
themselves, someone filed a lawsuit and was not convinced to dismiss it or to
take it back. The two campaigns were trying to focus on the main lines of
litigation. There are all these other cases, sometimes brought by someone who
just wanted to get their few minutes of fame.
P: Like Harry Jacobs [Seminole county attorney who filed lawsuit asking to throw
out absentee ballots due to application processing irregularities]?
C: His turned out to be more important, it looked like, and then it went away. That
was one, the Seminole case, the Jacobs case. Then there was one out of Martin
county, and they were referred to as the stealth cases because when they
started, they did not get much attention, then all of a sudden, they were up in
Tallahassee. When everyone realized the relief being granted was to throw out
all absentee ballots in those two counties, and that it would change the outcome
of the election, it then got a lot of attention. Once everyone really looked closely
at them, particularly when we covered the trial in one of them, we realized there
was nothing there. There just was not enough substance. They are going to
throw out that case. Particularly in the first few days when there were several
cases being filed, including one over the butterfly ballot in Palm Beach County,
those were kind of hard to follow because they were in circuit court and there
were four or five of them being filed at once. At least, they finally got
consolidated in front of Judge [Jorge] LaBarga [Palm Beach Circuit Court], and
we were able to follow them then.
P: The hardest task, from my perspective, would have been the five-four U.S.
Supreme Court decision, because everybody was reading the decision on the air,
and trying to interpret it before you actually read it all. Did you face that same
C: Yes, and we had somewhat had that [problem] with some of the previous cases.
That was obviously the one that was most prominent. One of the things I
noticed, was that we would be doing some analysis of a case, then we would go
to call-in or e-mail messages, and you had people that had the same document
in front of them that you had, asking you a question. They would [say], on page
four, line three... it was a very informed public when they were asking questions.
They could pull these documents off the Internet and read them the same time
the new networks were reading them. I think we felt that our first obligation was
to at least get the basics out, [and say] here is what has happened. Then, what
we seemed to focus on more than the legal theories in the cases is, what
happens next? What do they do now? They have lost here, what do they do?
Do they have a basis for an appeal? It was almost like, we will let the legal
analysis come when the books get written afterwards.
P: Talk a little bit about the experience of being in the middle of this maelstrom of
political unrest and many significant politicians in the county, Bob Dole [U.S.
senator from Kansas, 1969-1996; Republican presidential candidate, 1996] and
people like that, are constantly in Tallahassee. How did you react to the influx of
politicians? How did you assess their purpose?
C: I got to meet a lot of people who I never thought I would meet. I think I was
probably really more impressed with some of the media personalities and some
of the lawyers that I met. The politicians that came to town, some of the really
big ones, would conduct a news conference and did not always come on to our
location. Some of those politicians, they were more comfortable in either the
press-conference setting, or they would rather be in Washington being
interviewed by Wolf Blitzer [news anchor, CNN, 1990-present]. We did not
always get them, but we did get a lot of U.S. senators, a lot of governors came
Let me digress for a moment for a story about Governor [Paul] Patton
from Kentucky [governor, 1995-present]. I am originally from Kentucky and my
mother still lives there, she is in a nursing home. Governor Patton had come
down along with several other Democratic governors to show-the-flag that they
were still supporting Al Gore and the efforts going on. We were doing an
interview with Governor Patton and Governor [James S.] Gilmore from Virginia
[governor, 1998-present]. Gilmore was in Richmond, Patton was in Tallahassee.
The interview was done by someone out of Atlanta or out of Washington, not
there on the platform. I was reading the briefs, doing my homework when Patton
came in and sat down in the chair I was usually in, I moved over to Bill's chair. I
was just off-camera, even though I was about six inches from him. One thing
you learn is, that if it is not right in front of the camera, it does not exist, and I was
just a little bit to one side. He did his interview. I had introduced myself when he
came on, told him I was originally from Kentucky. Turns out, the producer we
had was originally from Kentucky. I said later, there is a pattern here, we are
from there and not now. When he finished the interview, he asked, can I stay
here and watch Governor Gilmore? [We said], sure, you can do that. So he sat
there and he was watching it. I knew my mother was watching every minute to
see when I was on. I pulled out my cell phone, leaned a little bit over to the side
so I would not disturb [Governor] Patton. I called my mother in her nursing home
room, [and] sure enough she was sitting there watching TV. I said, mother, do
you know who is sitting right next to me? [She said], I do not know who. [I said],
well, he was just on. She said, who is that? I said, it is Governor Patton from
Kentucky. She said, that scoundrel, that thief, I cannot stand him, he is the worst
politician we have ever had!
At that point, [Governor] Patton hears me, he said, is that your mother? I
said, yes. He said, well, I would like to speak to her. I said, Governor, she is so
excited about this, I have got to calm her down a little bit, just give me a minute. I
got her calmed down and finally when she said she would talk to him, I handed
him the phone. He just turned on the charm, and said, hello Vera, this is Paul
Patton, your governor. He finally gave me the phone back and I said, mother, did
you enjoy that? Oh yeah, that was nice. She hung up. I found out later from the
nursing home staff she went to every single room in the nursing home and said, I
just spoke to the governor! I just spoke to the governor! So he won her over.
P: Speaking of governors, one of the more significant Republicans was the
governor of Montana, Marc Racicot [governor, 1993-2001]. Why do you think
they picked him and what was his purpose, do you think? He was there quite a
C: He was. I understand that he and then-governor [George W.] Bush [U.S.
President, 2001-present; Texas governor, 1995-2001] had a very good
relationship while they were both governors. That Governor Bush of Texas felt
very comfortable with him. From the TV standpoint, what I heard, the people I
was with, [were] saying they felt he came across very well on TV. Of course, that
is what the TV people immediately jump to. They thought that he was able to
forcefully present the Bush side without appearing to go over-the-line. He was a
fresh face. Plus, he was outside of the Beltway, he was not one of the old guard.
He was from the West, clearly from an area that had gotten a lot of Bush
support. Some thought at the time that he was doing auditions for a cabinet
position, which he then decided he did not want. Clearly, we thought that the
governor of Montana was auditioning, as well as Governor Frank Keating from
Oklahoma [governor, 1995-present]. That was another politician that was there,
that one was very different. Keating really had become known to the country
after the Murrah Building bombing in Oklahoma City [April 19, 1995]. It was
really interesting to talk to him. We tried to be sort of delicate. We asked him,
how is your state doing? He was very forthcoming.
P: Is this on-camera or off-camera?
C: We asked him off-camera about it. On-camera, he pretty much wanted to stay to
the election. We did ask him on-camera if it was true [that] he was a candidate
for attorney general, and he kind-of hemmed-and-hawed, which told us that he
was, but then he did not get it.
P: Senator [John] Kerry from Massachusetts [U.S. Senator, 1985-present] comes
[to Florida]. It seems after a while, almost any politician who had some ambitions
for the future needed to be in Tallahassee and be on-camera. Do you see all of
this spin as having any impact at all?
C: I do not think it had any substantive impact. I think for the most part, the public
and certainly the people that were on-location were expecting it. After a while, to
me, it started becoming filler, we would start tuning it out. I think they were in
Tallahassee and in south Florida because certainly this was the battleground, this
is where things were happening. If you wanted to be on national media, that was
the place to be. What I think they did not want to get across is that it was
someone sitting in Washington or someone sitting in New York trying to tell
Florida what to do. They would always couch it in terms that they had come
down to show support, or they were on a fact-finding mission. They were going
to see what it was really like, when you could pretty well tell they were speaking
from briefing cards or talking points that they had been given.
P: There has been some comment that Bob Graham, a senior senator from Florida
[U.S. Senator, 1987-present; FL governor, 1979-1987], was not heavily involved
in supporting Gore, would that be your interpretation?
C: Quite frankly, I did not even notice until after the fact, when it was questioned, the
politician who did not strongly support Gore particularly during the recount
process that got the most attention was Alex Penelas, the mayor of Miami-Dade
county [Mayor, 1996-present; Miami-Dade County Commissioner, 1990-1996].
There have been some things written in the post-election books about what may
have gone on there. I really do not know if Bob Graham consciously was not
supporting Gore or whether it just appeared that he was not. Remember, at that
same time that this was going on, there were a lot of Democrats that were trying
to talk Bob Graham into giving up his Senate seat and to come back to run for
governor. I think that was probably the focus of his political attention at that point
rather than, what can I do on the outcome of the election?
P: One story I heard from a Washington lobbyist, so I do not know how reliable it is,
is that, as you know, Graham was one of the three finalists for the vice-
presidency. When he did not get it, Gore did not bother to call and tell him, and
he learned about it on television and that angered him somewhat. Have you
heard anything of that nature?
C: There was some speculation because he got passed over. He has been
mentioned as a VP [vice-presidential] candidate several times.
P: Talk about the choice, for the Republicans, for James Baker as the point-man.
And then for the Democrats, at least in the beginning, Warren Christopher. Were
those sound choices?
C: I think they were sound choices for the objective at the time they were chosen.
One thing I think both sides initially decided was that they did not want the
lawyers out in front. They needed to portray this not as only a legal process but
as a political process. My observation was that the Republicans always seemed
to be just a little bit better-organized and just one or two steps ahead all the way
through. It seemed like the Democratic side was too often reacting. Baker said
some things that got them to where they felt they had to react. I think they did
that deliberately. It was very clear that the Republican strategy was to keep
Bush in the lead throughout, [to] never let Gore get ahead and just constantly
say, the votes have been counted, the votes have been counted again, the
results have been determined. Which is what someone in the lead in a recount
wants to do. Gore could never get over that hump. He never was able to say, I
was in the lead. I think if Gore had gotten into the lead at some point, the
process may have gone on much longer.
P: Was, the legal strategy for the Republicans to challenge each attempt to get a re-
vote or a recount?
C: The Republican position was, we are going to slow down everything because
time was on their side. There were a lot of questions asked. We probably
discussed this more than anything else on CNN. Why did the Gore campaign
spend so much time in the protest stage? That cut their time in the contest
stage. It was really more a political PR [public relations] judgment than a legal
judgement. Their feeling was, at least, if you are still in the protest stage, you are
still counting ballots, you do not have a declared winner.
[End of side Al]
C: The objective, I think, on the Gore side, was that if we can keep counting ballots,
we have still got a chance. They were always looking for ways to find some
If you will notice, they start out initially concerned about the butterfly
ballot. The confusion of the butterfly ballot should have resulted in over-votes.
The initial approach was, we have got to check the over-votes, but then when
they realized there were not enough over-votes to change the outcome of the
election, they switched to the under-votes. I thought that there was a logical
explanation for the high number of under-votes, which was the fact that this was
an incredibly close election. If you looked at some of the polls, there were a
sizeable number of people that said, I am not impressed with either one of these
guys. For the first time, maybe in history, instead of the number of votes being
cast dropping off as you go down the ballot, it dropped off at the very top. They
said, I am going to go in and vote for sheriff, but I am not going to vote for
President. The Gore campaign went after the under-votes and spent a lot of time
trying to get the manual-recounts. Of course, they were trying to speed up the
process, the Republicans were trying to slow it down [and] the result was, it did
generate a great deal of confusion. I thought, one of the things that really helped
throughout the process, was because Florida has Sunshine Laws, open
meetings, public records, the news media was able to record the canvassing
board meetings, was able to broadcast the court proceedings, except in federal
court, [and] had access to all these records. As a result, the public saw
everything. If it had been where someone goes into a room, closes the door,
comes out five hours later, says we have recounted the votes and now Gore is
the winner, there would have been a lot of distrust of that process.
P: One of the issues that keeps coming up is that the Gore team always said, we
want to count all the votes. Later on, they are going to protest the overseas
[military] ballots. Was that a PR problem with them?
C: Definitely. Jim Baker jumped on that, it did cause a problem. The infamous
memo from Mark Herron [Florida attorney, memo discussed disqualification of
overseas absentee ballots]. I have known Mark for twenty-some years. He just
wrote, here is what the law is. There has been a lot of confusion about overseas
voting for years. It just never mattered before, [but] this time it did. The counting
of all the ballots, I think what they really said, was we want to count all of the
valid ballots. They never really said that, they did not get it across. Talking to
some of the Democratic insiders after the election, they acknowledged they
thought they lost the PR battle from day-one and just never were able to get out
P: On overseas ballots, had they pursued that, valid ballots, some of those
overseas ballots were invalid, were counted after the election date. Perhaps if
they had pursued that, they might have had a different result.
C: What canvassing boards have historically done across the state with overseas
ballots is just they went ahead and counted all of them. Again, it never mattered.
They came in way after the election, they have already certified, they just said,
count them all. If they went to the trouble of mailing it back in, just go ahead and
count it. When the canvassing boards were confronted with [the fact that] now
these ballots matter, they really were having a hard time because they sort of felt
they had precedent of being very lax in applying the rules to the overseas ballots.
P: One of the issues that came up very early and one of the things that Jesse
Jackson [activist, civil rights leader] talked about right after the election is they
wanted a re-vote. Is that even constitutionally possible?
C: We talked about that some on-air as well as off. We did not think there was any
possible way to do a re-vote. First of all, it would be in violation of the U.S.
Constitution, [which] says the votes are cast on a certain day. It would be in
violation of federal statute that says electors are selected on a certain day. An
election is not a static process, so if you have a re-vote, you have a whole other
series of problems that would erupt. The election that everyone was pointing to
for a re-vote was the Miami mayoral election a few years ago. When the court
found that the first one was just so screwed up, they said, do it again.
P: So many fraudulent votes.
C: Right. Then, of course, there was dicta, one sentence in the Bergstrom case
out of Volusia County involving a sheriff in which the [Florida] Supreme Court
seemed to be saying that one remedy, in the case of an election that is so fouled
up, is to do it over again. I think everyone acknowledged it is a far different
matter to re-vote for mayor of Miami or sheriff of Volusia County than to revote
for President of the United States.
P: Once the election is so close, and it is [one-half] than one percent, that triggers
an automatic recount.
C: One-half of one percent.
P: I have talked to several elections supervisors and it is unclear as to exactly what
that means. Some [eighteen counties] simply went back and re-tallied the
machine totals. Some went back and actually did a manual-recount. What is the
C: We are going to have it clear for the next election, and that is out of the election
reform legislation. It says what to do and now the rules are being done by the
Department of State. I had always advised canvassing boards I represented,
that when there was an automatic recount called, you ran the ballots back
through the machines [not] to just go back and look at the printout. Particularly,
with electronic voting today, to me, that is not a recount. This is where I think
some of this comes from: when we had the old lever-machines, all that you would
do is open up the back of the machines, look at the vote total and make sure it
had been written down correctly. At that point, a recount was basically to
determine, did the election official properly take a number that is in this little tiny
window in the back of that big machine? If it said 2000, did they write down
2000? Or did they write down 200? Because that is all you could do.
In the case of electronic voting, you can run the ballots back through.
The equipment that is used is very accurate, but you will get a different total
every time you run them through, because there is a slight margin of error. For
certain types of machines, you hear references to ballot fatigue, literally where
the paper has run through the machines so many times it starts stretching a little
bit. Then of course, you get into the chad problem with the punch-card voting.
But I think you have to run them back through the machine at least one more
time. If you have errors at that point, it is within the discretion of the canvassing
board to decide what they want to do then.
P: One of the arguments the Republicans made from the beginning is that a
manual-recount was inaccurate, number one, because it was by biased humans,
number two, because of the chads and mishandling. The general standard, I
believe, before had been that a manual-recount was an accurate way to
determine elections. Which is the correct analysis here?
C: I think the presumption from a legal standpoint was, that a manual-recount is the
most accurate way you can do it. I have been through several manual-recounts,
and every time it is a different result. People get tired, people may misread a
ballot, there is a legal presumption that if you have done a manual-recount you
cannot do anything better than that, that you will go by that. At some point you
have got to say, this is it, the election is decided and move on.
P: That is what the Republicans kept arguing, votes have been counted and
counted and counted. We do not need to count them anymore. Let us take
another early issue; the Gore campaign decided that they would file suit saying
that the butterfly ballot was illegal. What do you think the strategy was behind
that particular decision? I know they went out and got a bunch of affidavits to try
and bolster their position.
C: I think they jumped on that because initially, that was the only real legal issue
they had identified at that point. They were reacting quickly, the butterfly ballot
popped up on Election Day as a problem. Had that been the only lawsuit that
was ever filed in this case, we would have been done in just a few days. There
was to me, not any legal merit to that case. The ballot was to me, not sufficiently
confusing to be thrown out, and that is ultimately what the courts ruled. It had
been reviewed by the candidates and the parties. The fact that a voter goes in
and does not pay attention is something the court is not going to overturn an
election for. I thought that lawsuit was going to be a loser.
P: I remember Congressman Wexler [Democrat from Florida] protested afterwards,
but he had been one who had approved it initially. But now they thought there
was an opportunity. There were some rather bizarre votes for people like Pat
Buchanan [unsuccessful presidential candidate, 1992, 1996, 2000], in a mainly
elderly, Jewish district. The Florida Supreme Court in 1974 ruled that confusion
by the voter is not a legal grounds to overturn the vote.
C: That is correct. Under Florida law, the voter is presumed at the time they walk
into the voting booth, to be informed. The ballot is merely a notice to them of
here is where you place your mark. The responsibility is still on the voter to
properly follow the instructions.
P: Plus, they can get help at the polling place if they are confused.
C: That is one of these circumstances where the heavy turnout and the lengthy
ballot sort of worked against [that]. When you have people that have stood in line
for a long time, when they finally get there, they want to get out as quickly as
possible. Voting is not a natural act, it is not something we do everyday, which is
kind of the argument of people that are in favor of what I call the ATM [automatic
teller machine] voting, where you will go do something [to vote] that we do
everyday. It is something that we are not used to and no one likes to admit, I
screwed up or I do not understand what I am doing here, and sometimes they
may not have understood that they had screwed up. As a result, they just go
ahead and put their ballot in the box and get out of there.
One of the things that also worked against the Democrats was [that] it
turned out that a lot of people that were complaining about the butterfly ballot did
not do so until very late in the day and not until after they were contacted by
someone else and said, were you confused by the ballot? There were some that
did call immediately or did even mention it in the precinct, [but] there are also
many that were not confused until they had been prompted about it. It almost
seemed like, from what we were seeing, that perhaps some people were now
saying they had voted illegally when perhaps they had not. You can not go back
and undo those unless you throw everything out, then what you are doing, in
order to protect the franchise of a few hundred, you are disenfranchising several
P: I noticed that in Palm Beach County, ninety-six percent of the people voted
correctly. It was only a problem because that was a lot of votes. Four percent,
on that basis, is a rather small percentage.
C: I was asked during the first week I was on the air with CNN, based on the
experience I had seen going back to the late 1970s, were the over-votes and
under-vote and spoiled-ballot rates out of the ordinary? Of course, I did not
break it down by precinct as some have now done, but looking at what was being
reported out of the various counties, it was in line with what we have had before.
It was just more votes, and we have never had an election this close. It never
P: Very early on, the Bush campaign, I think this was Barry Richard [attorney for
George W. Bush], decided to file a lawsuit in the U.S. District Court for the
southern district of Florida.
C: Actually, Ted Olsen [attorney for George W. Bush] filed it.
P: The lawsuit filed by Ted Olsen asked for an injunction to stop all of the manual
recounts. As I recall, in that suit, he made the first citing of the Fourteenth
Amendment, this is a violation of equal protection of the law. Although
apparently nobody remarked on that very much at the time.
C: I was surprised that they argued that. I talked to Ted after the election, I saw him
in August at the ABA [American Bar Association] annual meeting. We talked a
little bit. While he did not say it directly, he sort of implied that when they initially
filed the suit, the equal protection argument was sort of a throw-away. They
were dumping everything in there they could, this is kitchen sink litigation, put
everything in there.
P: They also used First Amendment rights.
C: I think they were really trying to argue that the system is out of control, it is
fundamentally unfair. As it turned out, equal protection got grabbed on to. Talk
about a stealth issue, it really was quiet even when it was in front of the Eleventh
Circuit, it did not get a lot of attention.
P: They passed on it. The first remand from the Supreme Court did not comment
on the Fourteenth Amendment either. The strategy here again, we have
mentioned this a little bit earlier, if you would carry me forward, the strategy of
Olsen and Richard and the Bush lawyers is once again partly to get this out of
Florida [and] into the federal courts, because they believe they will have a better
chance. They assume from the beginning that the Florida Supreme Court is a
Democratic court. That is part of their appeal process, because they keep
appealing to federal court.
C: And it was just the opposite on the other side. I remember I was on the panel at
the University of Florida law school in February with David Boies [attorney for Al
Gore]. I saw him at the hotel before the program, I said, David, one of the
questions I wanted to ask you, is, your case before Judge Sauls was so brief, we
thought you did not even do a prima facie case, we thought you might get
dismissed out of hand. Why were you so brief? He said, we knew we were
going to lose in front of Sauls and we knew we would win in front of the Florida
Supreme Court. Over on the Bush campaign, it was just the opposite, drag it out
as much as possible in the state courts and get it over onto the federal side.
P: Another issue that comes up early on, again, is the strategy. Gore goes on TV
early and says that he would end all of his legal challenges if Bush would agree
to a statewide count, and Bush refuses. Why did Gore not pursue that, or was
that just a strawman? What do you think was behind Gore's strategy here?
C: The way I took it was, he was trying to get the high ground by saying, let us just
count everything and it was consistent with his count-all-the-votes position. From
the Bush standpoint, they said, they have already been counted. Why should we
recount ballots in counties where there's been absolutely no allegation of any
wrongdoing or any problems? Part of that was that they sort of had a pretty good
handle on four or five counties, [but] they had no idea what was going to be
happening in the other counties. With the margin as close as it is, or was, you do
not want to venture into the unknown. Which is why when the Florida Supreme
Court in December ordered that statewide recount of under-votes, the Bush
campaign just went berserk because they did not know what they were walking
into. Remember for the Gore campaign, their mantra was count the votes, just
keep counting the votes.
P: In that case, there is a particular issue that comes up in Palm Beach County and
Judge LaBarga involved with making several rulings. I talked to Judge [Charles]
Burton [Palm Beach County Court] about this. They had decided that they would
go back to this 1990 standard: sunlight and hanging chads. Eventually, LaBarga
overturned that and gave the Palm Beach Canvassing Board the discretion to
decide on their own. What is the basis for that sort of decision? The state law is
voter intent, is it not?
C: That is the statement that we have had before. Supreme Court decisions have
said, you can do just about anything in order to determine the voter's intent. Up
until the election reform legislation that was just passed, canvassing boards had
total discretion with some very minor limitations. Florida has had a very
decentralized elections system, it was up to the canvassing boards to decide
what they wanted to do, and no one had really dictated to them. Some
canvassing boards did not like that; when you give them legal advice and say
you can do anything you want to within reason, sometimes they want to be given
a hard-and-fast standard. In the case of Palm Beach County, they had adopted
a standard, it was in writing, it was the standard going into the election, then all of
a sudden they changed it. I think that it was in the discretion of the canvassing
board to do it, but probably not a wise move to have made.
P: Judge Burton said that this was one of the problems he had. It was interesting,
he is a Democrat, but the Gore people were very upset with him because the
standard they finally adopted was really a higher standard than they had
previously. This is a problem that is almost inherent in any canvassing board's
decision. I believe Broward County shifted standards twice?
P: This gives, at least for the Bush team, quite a bit of public-relations ammunition,
does it not?
C: That, plus that is when you really started hearing the jokes that Florida does not
know how to count, what are they doing down there? It is when we really did
seem like we were out of control. What was interesting, I was in Palm Beach
County during much of that, I was at the Palm Beach operations center. I had
gone down to south Florida for a week. I was on the air there when we were
trying to sort through what these canvassing boards were doing. One of the
statements I made was, having been Division [of Elections] director, I said, when
you have confusion like this, this is one opportunity for the Division [of Elections]
to step in and establish a standard or to give some guidance to these canvassing
boards, and for a while, it did not happen. Then it happened, but it was not what
the Gore campaign wanted. What generated some of the problems from some of
the canvassing boards and some of the officials was that they did not seem to
think that the Division had shown much leniency. That it had come down just so
hard on the position that it put some of the canvassing boards in a very difficult
P: Do you think perhaps [Clay] Roberts [Director, Florida Division of Elections] and
Katherine Harris [Florida Secretary of State, 1998-present] had not given enough
guidance to the canvassing boards? Was that their responsibility?
C: I thought more should have been done very early. I have talked to Clay once
since the election, and I will be seeing him this weekend at a election law
committee meeting of the ABA. He said that everything was changing so quickly,
it was hard, from where he was sitting, to get a handle on it, in order to say, here
is what you are supposed to do. He thought they gave enough direction in
advance of the election. The supervisors themselves, through their association,
had created a canvassing-board manual which every one of the 67 counties has,
so there is something statewide for them to refer to. It did seem like that in the
early days, the Division was basically muted. If you remember there was the
incident where someone from the Division was on CNN on election night, then all
of sudden was off. They did not want anything to go out that was not consistent
with the message. That may have been unfortunate in the early days when there
probably was an opportunity for some neutral guidance to be given, but it just
was not the atmosphere to do it in.
P: Would they have the legal authority to set a standard for the canvassing boards?
C: The only way they could do that is through the issuance of an advisory opinion,
which is what they did, and they had to have a request for that. The Division will
frequently send out advisories or memos to the supervisors saying, it is our view
of this, or we think you should do this, but they are non-binding.
P: Speaking of those advisories, Judge Charles Burton had written Clay Roberts
and asked him to interpret 102-111 and 102-112. The question he put to the
Board of Division of Elections was, may the board certify all the election results to
the Department of State while the manual recount continues for the presidential
election? He indicated that these statutes, the Florida Statutes were explicitly
mandatory. In 111, it says, on the seventh day following the election, all missing
returns shall be ignored, but 112 says such returns may be ignored. That seems
to be rather complicated and inconsistent.
C: That is true. The origin of getting the election returns in is that there had been
problems before with getting the returns to the state canvassing commission for
state and legislative races because counties were still hung up on protests and
contests, particularly protests for local elections. I can recall when we were
putting together the packets for the election canvassing commission, which when
I was Director, consisted of the Governor, Secretary of State, and Attorney
General. We would have to call counties and say, we do not have your returns
for governor, we do not have your returns for state legislature, where are they?
They said, we have not been able to certify them yet because we are in the midst
of a protest over a county commissioner race. So we would say, send up what
you have got. You can send up returns for the races you are finished with and
then we will just ignore the others. It was particularly a problem and the
legislature is thinking of the legislature when they write the Election Code, the
particular problem was the legislature. The legislature convenes for its
organizational session two weeks after the general election. That is why we had
to have everything in in seven days, because the Division then has to issue all
the commissions to the members of the legislature so they can be properly
seated. That is really what was driving that process. When the "may" came
along was when it said, well, go ahead and count the ones you have got, but you
can ignore the ones you do not have. No one really got into the history of what
this was for and the context [under which] it was really written to get state
returns up to Tallahassee so that they were not held up because of something
going on with the local races.
P: When you were in that office, was that seven-day period absolutely sacrosanct?
C: Not sacrosanct. If it was not there, we went ahead and certified what we had.
P: There was some flexibility in that date.
C: Again, we did not have anything this close, it did not matter. The other thing that
happened is that some of the canvassing boards got real lax in getting their
returns in and missed the seven days. The legislature realized there was no
enforcement mechanism. You might have returns that did not come in. What
they did [was], they added to the canvassing board statute in the mid-1980s a
provision that says, if you do not get the returns in on time, each individual
member of the canvassing board is fined a certain amount that they must pay
from personal funds. That got their attention.
P: Then they got them in on time.
P: Another thing that both Katherine Harris and Clay Roberts indicated is that, when
they were talking about 111 and 112, they said that the canvassing boards
cannot have a manual- recount unless there are unforeseen circumstances such
as Hurricane Andrew [August 24, 1992], some sort of natural disaster or a
breakdown of the machines. That does not seem to be specifically noted in the
C: I believe, under the statute as it existed then, that after a canvassing board has
done a machine-recount, if they are still not satisfied that that result is the most
accurate they can get, they have it in their discretion to then order a manual-
recount on their own initiative. They also have the initiative to stop that at any
P: Which Dade County did.
P: Another element that comes up, Clay Roberts had one opinion, then Bob
Butterworth, the Attorney General [Attorney General of Florida, 1986-present]
comes out with another opinion which concluded that Palm Beach could recount.
So Judge Charles Burton is completely in the dark here, he does not know which
opinion is binding on him. So how does a canvassing board deal with that issue?
C: I did not think there was any question which one was binding on him, it was the
Division opinion. The statute says that an opinion issued by the Division is
binding upon the person who requested it, or the board or entity that requested it.
There is no similar provision for an Attorney General's opinion, they are
advisory, they have no binding effect. If it was a question of which one of these
binds us, I think the Division opinion clearly bound them.
P: That is what they eventually decided on. Talk a little bit about Judge Donald
Middlebrooks' [U.S. District Court] decision, I think it was on November 13, he
refuses to accept Bush's petition to stop the manual recounts. One of the issues
that came up with him was that it was a state matter and not a federal matter.
What did you think about his opinion?
C: I would like to think that Don is well-versed in election law since when he ran for
student-body president at the University of Florida, I was one of his election
advisors and I was his lobbyist before the state senate. When I heard that that
case had been assigned to Don, I was off the air, but I was with Bill Hemmer. I
started laughing. He said, what is so funny? I said, you will not believe this, the
judge it has been assigned to, [we were] in college together, he was student-
body president, I told him everything. It turned out that Steve Zack was going to
argue the case, Steve Uhlfelder, we were all together at Florida. Hemmer said,
did everyone that is involved in this matter go to the University of Florida law
school? I said, just the good lawyers. I thought Don's opinion was correct. This
is the thing that had the new media and a lot of the legal scholars kind of
stumped. Here was a campaign going in and making an argument that you
would have expected to come from the other side in other circumstances. The
federal courts have historically deferred to the states on elections. I thought
Don's opinion was very well written, he thought it out. It was very clear to me
that [Judge] Middlebrooks had decided that if this election is going to be
overturned by federal court, it is not going to be my federal court, it is going to be
somebody higher up.
P: Plus, he also pointed out in the opinion, that there were bound to be
discrepancies because there were sixty-seven counties, everybody did them a
different way. The idea was to make certain that the machine tabulation was
correct, therefore the recount was legal.
C: I think something else that is important to keep in mind the context and the
timeline of this. I was asked many times on the air, are the judges watching what
is going on? I said, of course they are. At the time that Middlebrooks ruled, we
knew we had a close election. We knew that there were going to be some
recounts, but we were nowhere close to where we ended up in December, when
people are talking about chaos and that it was a real zoo. The problems in Palm
Beach County, with canvassing board flip-flopping, had not occurred at that point.
Broward County adopting different standards had not occurred at that point.
Miami-Dade, with the so-called riot in the government center, had not happened
at that point. When Donald Middlebrooks made his decision, I think it was strictly
on a legal question. Whereas when all of these other things started unfolding,
judges, both state and federal, started looking and saying, wait a minute. There
is an administrative process that appears to be spinning out of control. Is there a
way that the judiciary can bring this back in? Different courts went in different
directions, but I think if you look at the way this whole thing evolved, I think that
affected the later court rulings.
P: At this point, it is not really what we would later call a Constitutional crisis.
C: Certainly not at that point, no.
P: Another element that I want you to clarify for us a little bit is that, in the elections,
and you cover this very well in your book Elections and Ethics: the Law in
Florida, is that you have the option to first protest the election and then, once the
votes are certified, you can contest the election. Would you explain the details of
that process, first protesting?
C: To protest an election under Florida law at the time of the election is a very
straightforward allegation that the votes just were not counted correctly. No
allegation of fraud, misdeed, or malfeasance in office is required. It just says,
they were not added up correctly, and what you do is you ask the canvassing
board to count them again. You can go back to cases at the turn of the century,
and you will find it was nothing more than the math. When you got a tally-sheet
of all the precincts, pre-computer, pre-calculator, they just did not do the math
correctly. Then it evolved into, if you are going to run it through machines, you
have got to make sure the machine counted it correctly it is the same thing, the
number did not get put properly on the total. The first stage is merely to get the
votes counted. It is supposed to take place quickly and under the direction of the
canvassing board. Once the canvassing board says, we think they are counted
correctly and there is no court order preventing us from doing so, we are now
going to certify the election.
In the case of a statewide election or a presidential election, those are certified to
the Secretary of State who presents them to the Election Canvassing
Commission. As soon as the certification is issued by the canvassing board,
then a losing candidate, a political party, or in the case of an issue, a taxpayer or
political committee sponsoring it, can then file a contest with a circuit court judge.
What is says, it says you can go to a judge, now most would still go to the clerk's
office and file it.
The idea was that in a contest, you have got to allege that there was fraud,
wrongdoing, malfeasance [or] misfeasance in office, something that has got to be
stopped immediately. That is why the statute has been very broad. You can go
find the very first circuit judge you can find, file it and that judge can fashion such
relief as he or she deems appropriate under the circumstances. You may be
concerned that ballot boxes were going to be destroyed, ballots were going to
disappear, equipment, something was going to occur. It comes out of the history
of [for example,] the 1876 election when ballot boxes were found in barns in
Alachua County that decided the outcome of the election. It has been very broad
in the contest proceeding, but the standard you have to prove, that but for what
you are complaining about, the results of the election would have been different.
That is a very, very high standard.
P: That is not a possibility, it is a probability.
C: Right, you have got to show that maybe there was wrong-doing, there was some
vote-buying, but it was 100 votes [in question] and the margin is 1000 votes, [so]
you are not going to win.
P: Is the [court] venue in the contest Leon County?
C: In the case of a statewide or a multi-county race, it is in Tallahassee.
P: So, the presidential election goes to Leon County, and ultimately Judge Sauls.
One comment I thought Judge Richard Posner [U.S. Court of Appeals, 7th
Circuit], I do not know if you have read his book, Breaking the Deadlock: The
2000 Election, the Constitution and the Courts or not, had an interesting
comment about all of this. He said, the Democrats did not have a good case,
because they confused tabulation-error with voter-error. The problem was not in
the tabulation, it was in voter-error. Therefore, from the beginning, in this protest
case, they did not really have a legal case.
C: I have read Posner's statements on that. I think that is a very good observation
that came out some during the legal proceeding. If you will recall Joe Klock,
[who was] representing Katherine Harris, kept referring to voter-error, voter-error,
he just kept hitting on that. He said, basically the election cannot be overturned
on the basis of voter-error when there is not a showing of some sort of other
misconduct or ill-deed which rises to the level of fraud, something that adversely
affects the election system, you have to throw it out. I think Posner made a very
good observation, with one caveat. I think there were errors in tabulation when
you got to the recount, but not with the original.
P: They would not have been aware of that when they began the protest.
P: Another issue that comes up very early on, and Dexter Douglass [attorney for
Gore campaign during 2000 election] talked about this a little bit, they thought
from the beginning that Secretary of State, Katherine Harris, had flexibility in
counting the votes. That she could have waited, for example, until all but the
overseas votes were counted, which I think was November 17.
C: Ten days after.
P: What is your view of that?
C: I thought she did not show any flexibility throughout the process. I will give her
credit, she was consistent. I will also say, I think she did what her job was to do.
Some people may not like the way she did it. There were maybe some style
points that she did not earn. This was a new situation no Secretary of State had
been in before. There were some times I thought it may have diffused the
atmosphere just a bit if she had shown a little flexibility. For example, when the
Supreme Court, for whatever reason, said in their opinion, close-of-business on
Sunday, or if they are not open, the [opening] on Monday. Why they put that in
there, I do not know. She opened up her offices on Sunday, which she had
never done before. Why could she not have said, we are going to stay closed on
Sunday, bring them in on Monday, then the Palm Beach votes would have come
P: Certainly that seems to be arbitrary and partisan.
C: That, and what it says to me was, there was a lack of confidence somewhere on
the Bush side, that they were not going to prevail on a recount if all the votes
were counted. That is what the Gore team was saying, see, they do not think
they are going to win, that is why we have got to keep counting.
P: Let me go back to the protest vote. I guess there is a provision to take a sample
recount to determine if there would be enough of a change to proceed with a
recount. The individual making the protest, in this case, Gore, has a right to
choose the precincts. Obviously, we know that they would choose [Democratic]
precincts, which they certainly did.
C: That provision was criticized and attacked by many as just giving an advantage
to the person requesting a sample, but there was some logic to doing that. The
theory was, if you have got a close election and you were going to do a sample
to see if you wanted to do a manual recount, if the canvassing board picked
three, they could pick three that they knew would not result in a manual recount.
If you did an arbitrary [pick], you do not know that you are going to get a good
representative sample. The theory was, if you let the person who is complaining
pick the three, which will undoubtedly be his or her best precincts, and there is
enough of a vote-swing there, then there may be some vote-swings elsewhere.
If there [are] no vote-swings in their best precincts, then you have reasonably
good expectation that the vote totals are sound. What I always thought
candidates should do, and I have been through four manual-recount samples, is
the candidate should pick one precinct which was his or her absolute best
precinct in the jurisdiction, one precinct that was absolutely their worst one, and
then one that was somewhere in the middle. If you can show a case in those
three, I think you have made a really good case. Picking the three is supposed
to work in the opposite direction if you did not get much of a change and those
were your three best precincts, clearly, there is no reason to do a recount.
P: Another thing that I thought was interesting, the Gore campaign appealed to the
Florida State Supreme Court, but they did not specifically ask for an order
blocking the certification. Why did not they do that?
C: I asked the same question and I never really got a good answer to that. I was
very surprised. I thought that you go in and ask for an emergency injunction.
One was not requested. I still do not know why.
P: Another issue that is relevant throughout this campaign is the felon
determination. The state, I guess Katherine Harris, hired an out-of-state
company to do an assessment of who was eligible or ineligible, and this particular
report had numerous errors in it. How do county supervisors of elections deal
with those issues? I have talked to some, some said they ignored it, some said
they used it but found there were mistakes. Whose responsibility is that?
C: It is ultimately the Supervisor of Elections. They are the ones that maintain the
voter-rolls. Again, we have had a very decentralized process. One of the
outcomes of this election and the election reform legislation, [is that] we are
moving to a more centralized process. We are going to have a centralized,
statewide voter-registration database. In the past, there have been real fears
about having that Big Brother has all this information on you. Plus, the
supervisors were very jealous of guarding their turf. What struck me when the
reports started coming out about the felon voting and the problems with the list -
I described it on the air as this election had turned into something equivalent to
the perfect storm. We have got here several different factors that in any one
election would have caused a problem, but they have all converged into one. We
have got felon voting, the butterfly ballot, the longest presidential ballot in Florida
history because two years ago the Constitution Revision Commission made it
easier to get on the ballot, we have got equipment which was malfunctioning, we
have got a close vote with two candidates that did not seem to excite the
electorate very much. It was just like all of these things all came together at once
P: Should felons be allowed to vote?
C: Yes, once they have served their time. I thought that would be an issue that
would get resolved very quickly, but it has not. Right now there is a process that
is very cumbersome to go through to get your rights restored.
P: It is lengthy and it is difficult.
C: There is one lawsuit that has been filed against the Department of Corrections
which says, you do not tell anyone when they are released from your custody
how to go about getting their rights restored. I was a clemency aide for the
Secretary of State, so I was familiar with the process. It is not the worst process
in the world, but for someone who just got out or just got off probation, it is not
typically something [you would do]; you say, I do not want to go through this. It
seems to me that whenever you completed, whatever your sentence was, [once]
you finished your time, you finished your probation or you have been paroled,
they should be automatically restored then.
P: Let us talk a little bit about the overseas ballots. This of course, because of the
closeness of the election, turns out to be a lot more crucial than perhaps people
had anticipated. You mentioned Mark Herron's memo, which basically, as you
indicated, stated the law and said we have a right to challenge these votes that
either are not in on time or do not have a postmark. What other issue is there
that they could use?
C: They were not dated.
P: They were not dated, okay. That created this huge backlash and the impression
was that the Democrats were anti-military. As far as I am concerned, in many
ways, this was the key to the election. Ultimately, they counted enough of these
overseas ballots that it made a difference.
C: Also, I did not even learn this until after the election when I read the New York
Times analysis of the overseas voting, that the Defense Department was
experimenting with Internet voting by overseas personnel in this election and
there were, I believe, three counties in Florida that were participating in the test.
I do not believe anyone knew that at the time of the election. I also was
surprised when I read the Defense Department's report where they had gone
back and looked at their procedures and said that they did not think there was
any problem whatsoever with the procedures they were following on overseas
voting, when we had numerous reports of people saying, well, my commanding
officer did not know what to do, the form was not correct, there were no
instructions. There is supposed to be a designated voting officer, I think, in every
unit, and people in the unit did not even know who they were. I think it was
another one of those [situations] where there had never been a problem before,
so no one thought there would be a problem this time, then there was.
P: Senator Joseph Lieberman [U. S. Senator from Connecticut, 1989-present;
unsuccessful Democratic candidate for Vice President, 2000] gets on to, I
C: Actually, Meet the Press is where he first did it.
P: And says that we do not want to disenfranchise military voters. Did that hurt the
Gore cause? Did you know if that was planned or did he do that on his own?
C: I do not know first-hand, but having read most of the post-election books, all of
them seem to be consistent in saying that at least as far as the lawyers were
concerned, that was not cleared. He got on and just backtracked. I remember
some of the CNN people and I were having breakfast watching that, and I
remember Bill Hemmer saying, whoa, he is backing up, he is backing up. What it
did, I think the damage had already been done, it apparently demoralized some
of the lawyers and probably was a PR battle. What he may have done by doing
that, I think he probably shut that down as an issue. If he had not done that, it
would have kept lingering on and maybe would have gotten much more
significant than it turned out to be.
P: Even Bob Butterworth [Attorney General of Florida, 1986-present] issued an
[End of side A2]
P: I would like to get back to the overseas ballots. The law says they must be
postmarked and signed by November 7, and cannot be completed after
November 7. There is discussion by the Gore people that in this case, the
Republicans out-propagandized them and the media let them get away with that.
Is that a fair charge?
C: I do not think it is fair that the media let them get away with it. What I observed
is that both sides were allowed to present their case. I think what the Gore
campaign probably was hoping is that the news media would say, these are
invalid votes, they should be thrown out. From the news media standpoint, we all
said, that is the Gore campaign's role. They did it, they got blasted, they took a
hit, then they backed off of it.
P: It is a felony to change or backdate any of these ballots, right?
P: In fourteen counties, a man that you know probably, Fred Bartlett, went back to
fourteen counties and persuaded the canvassing boards to go back and count
overseas ballots which they had not counted before. A couple of examples that I
am sure you know, Santa Rosa County accepted two ballots on November 8, five
ballots postmarked November 17, and Clay County accepted two ballots that
arrived by fax after the date. Were not these votes illegal?
C: Well, certainly, invalid. Illegal goes to intent, and without knowing more, I do not
know if we can get to intent. I saw that that occurred. I was concerned when the
canvassing boards reopened the overseas ballots, went back, and were applying
a looser standard. To me, they counted, they certified, and that should have
been the end of it. But what was happening, and here is where the Republicans
did win the PR battle, they were putting so much pressure, on even local
politicians. They were saying, you go back and loosen this up or the next time
you run, we are going to make sure everyone knows you are anti-overseas
service personnel. Imagine what that would be like now with what has
happened. They put a lot of pressure on the local officials. Remember, all three
members of that canvassing board are elected.
P: Plus, this was in Escambia and Santa Rosa Counties with a lot of military bases,
that was certainly a good area...
C: Strong military [presence] or strong military retirees.
P: Another issue that comes up as the recounts are going on, the Republicans are
charging that there is chaos, people are eating chads and chads all over the
floor. There are all kinds of activities going on by "Democratic Gore supporters
that are unfair to the process." Was there any validity to these charges?
C: I did not think there was. All of these procedures took place in public view.
Having been through those, [in] some highly-charged local races that went into
recounts, it always seemed like people were being accused of doing something.
The conspiracy theory was always rampant. Someone would say, well, I saw
some chads falling on the floor, and the next thing you know, by the time it gets
to the fourth or fifth person, hundreds of chads were removed or whatever. We
were in an environment where it was, one, virtually impossible to counter that
because you are basically trying to dispel a negative and second, is that there
was so much confusion and people sometimes did not know what was going on.
That is just a breeding-ground for rumors and escalating the tension level.
P: Comment in that context about the rallies by Jesse Jackson. How did that
influence the voting recounts?
C: I do not know that those rallies had any influence. I did not see any evidence of
it. I thought it was just unfortunate, in that we already had enough of a high level
of rhetoric and emotions that just was inflaming it even more. I am not sure it
necessarily accomplished anything. I saw some of the rallies first-hand.
Certainly they had the right to do it, but I do not know that it really furthered
anything. Some may think that it may have caused some people to be more
attentive, I just do not know that it made any difference. Most of those rallies
were trying to present a case that there was this disenfranchisement of African-
American voters throughout the state. I think we are going to find, once we sort
of get past the emotional hurdle we have got to overcome, someone is going to
do a very careful analysis of that. I think the U.S. Civil Rights Commission did
not necessarily do that, they presented a lot of anecdotal evidence. We were
looking at, when I was talking a lot with Bill Schneider and some of the others,
were there some plausible explanations for this? Again, another one of those
factors that converged into our perfect storm was, this was also a very close
national election after implementation of the Motor Voter Act [allows citizens to
register to vote when obtaining a driver's license]. Supervisors of election had
been predicting for years [that] Motor Voter was going to be a problem and it
What happened in this election was, I think you had more first time voters than
ever before, but also there was, in this state, a much more concerted effort than
ever has been done in the past before, to turn out the African-American vote. It
was in response to the Jeb Bush [Florida governor, 1999-present] and the One
Florida initiative. When you get a combination of new voters for the first time,
large numbers of voters who are not familiar with the process, you are going to
have a lot of problems with them. The fact that there was a high level of invalid
votes in predominantly African-American precincts did not make me think there
had been some deliberate effort. It did say, there is something obviously wrong in
the system, we need to fix this. Let me leap ahead from this, because I made the
comment to the election reform commission when they were studying the
election equipment. I made just that same point about first-time voters and the
problems that they had. They were talking about going to ATM voting, the
touchscreen voting. A commission member had made the comment, well
everyone knows how to use an ATM. I said, you go into southeast Overtown
[predominately African American section of Miami] in Miami and see how many
people have ATM debit-cards and are familiar with using an ATM. They go into a
check-cashing service even if they have a check to cash. If you think you had
some problems in those precincts with the other type of voting, you will have it
with this other kind. There are some explanations I think, that go beyond just
[that] someone was out there trying to make sure their votes were not counted.
P: In Duval County, a lot of the African-American leaders said, vote the whole ticket,
and some of those people ended up voting for all presidential candidates, so you
had a huge number of over-votes in that case. Let me ask you about November
14, when Judge Terry Lewis [Leon County District Court Judge, 1988-present],
who is the Leon County Circuit Judge, he ruled that the seven-day recount, the
statutory recount, was mandatory, but he authorized Katherine Harris to
"exercise discretion" in whether or not to accept late, amended returns. One of
the comments he made about this, well, what if there is a power-outage and you
cannot get the returns in on time? He goes on to say, to accept without
considering the circumstances is to abdicate discretion. Then he made the
comment, I guess it was in his decision, he did not know what the fuss was about
because Gore could always contest the certification. What did you think of Judge
C: I thought he was doing his best to be Solomon. It seemed to me what he was
doing, was he was cutting the baby right down the middle, because he was
giving a little something to both sides. He basically said, Harris, if you want to
enforce the seven days, you can enforce the seven days, but if want to exercise
your discretion and allow some things in late, I think you have got the discretion
to do that. Gore, if she does not do it, then contest it. What it did not do, it did
not fundamentally resolve the issue. That is why the Florida Supreme Court
P: What if he had done so at that point? How would that have changed the whole
C: I think what it would have changed is that the Florida Supreme Court would not
have jumped in on its own initiative. What would have happened was that Harris
would have certified on the seventh day, or she would present the returns to the
canvassing commission, they would certify on the seventh day. Gore would have
to have either gotten an injunction from a higher court to prevent them from doing
so or to file a contest as soon as they certified. We probably would have gotten
to the contest phase much, much sooner.
P: That might have made a difference in the long term, because they had to deal
with December 12.
C: Because the date at the back end became then the driving force at the end.
P: Katherine Harris then asked Palm Beach, Broward, and I guess Dade, maybe
Volusia, I forget, to submit a request for late returns and state the reasons why,
and she denied all of those. The Gore lawyers indicated that she never had any
intention of honoring those requests. There is some talk that Joe Klock told her
to do that because it would look better. Do you have any knowledge about how
she made those decisions?
C: [I] do not have any knowledge of it. My observation at the time was that the only
indication she made of any flexibility is when she said, send me the reasons why
you would need extra time, but it did look to me like it was not a serious effort,
because she was out there on record as saying unless a hurricane comes flying
in today or maybe a power-outage or something like that, she was applying such
a strict standard. The other thing I thought did not look good, getting back to the
public perception of this, was when she denied them, she denied the requests
the night they were received. It seemed to me that could have waited until the
next morning, at least look like she thought about it overnight. It did look like it
was already a foregone conclusion. I guess in her defense, based upon the
position her office was taking, unless they said, we have a hurricane or we have
a power-outage, there was no basis for getting any more time.
P: Charles Burton said, that even in the requests that they made, and he is
chairman of the Palm Beach canvassing board, he felt like she would not
approve it. He thought it was really a waste of time, but he felt like he had to go
through with it. It is kind of interesting to me that Secretary of State Harris files a
suit to end the recounts.
C: And also to consolidate everything into Leon County.
P: Explain the reasoning behind that request.
C: That is one that Joe Klock has said publically that the Bush campaign did not like
and was urging them to drop it. I did not quite understand it at the time, other
than it seemed like it was an effort to try to get everything resolved quickly. At
the same time that the Republicans were doing everything they could to drag out
the process, particularly of contest, they also wanted to get quickly to a
certification. So I took the filing of the lawsuit by Harris as saying, I will win and
we will do it quickly, certification is done, it is over but it is the Florida Supreme
Court. At that time, they did not have the benefit of seeing the later decisions,
which made it very clear, there was a majority on that court that was going to
keep counting ballots. Probably, in hindsight, was not the thing to do.
P: Bush appeals to the Eleventh Circuit Court of Appeals to stop the recount. The
court decides not to halt the recount as well. Why did they make that decision?
C: I thought the Eleventh Circuit, that was from the Middlebrooks decision, was
basically saying, this is not the role for the federal courts, this is a state issue.
Maybe some point in the future the federal courts would get involved. Also, keep
in mind with this being presidential electors, there are a lot of legal scholars that
thought there was absolutely no role for the courts in this. You just finish the
process however you can, get it up to Washington and then it is up to Congress
to decide, or first, the chief executive of the state. That to me, was always the
trump card. We were going through all of this and I said, does anyone doubt that
in the end, regardless of what the Florida Supreme Court says, Circuit Court,
everyone, that Jeb Bush is going to certify a slate of electors other than the ones
pledged to his brother? He is just not going to do it.
P: Did you anticipate at this point that the U.S. Supreme Court would take the case?
C: I never thought it would get to the U.S. Supreme Court. I was shocked when
they took it.
P: At this point, there is some discussion of Gore abandoning the protest, going to
the contest and asking for a vote in all sixty-seven counties. Why did he not do it
at this juncture? Time is now becoming a critical issue. Why do you think that
the strategists decided not to contest the election on a statewide basis?
C: It was the timing. Talking to David Boies later, he said at that time, including the
first oral argument before the Florida Supreme Court, they thought they had more
than enough time to complete the recounts. Here, when you are working in
hours, when something is three or four weeks off, that is just like an eternity. He
said he never thought they would get right up against the date. Plus, I did not
agree with his concession that December 12 was the critical date.
P: I think that was a critical error. Later on, it was hard for him to argue that we can
wait until December 18.
C: I thought the critical date was the date that Congress votes, and you had until
P: So did Justice John Paul Stevens [U.S. Supreme Court, 1975-present].
C: All the December 12 said is, that was a safe-harbor provision. All it says is, you
get it in by that date and we are not going to challenge you.
P: On Thursday, November 16, the Florida Supreme Court makes a major ruling.
They rule 7-0 that Palm Beach County and Broward County may continue the
hand count. What seemed to be strange to me, they left it up to Judge Lewis to
determine if Katherine Harris had to include those votes in the final tally. Why
would they give that responsibility to Judge Lewis?
C: I think at that point, it seemed that a lot of people had confidence in Judge Lewis.
The news media comment[ed] that he seemed to have control of his courtroom,
he seemed to be very thorough, he seemed to think things through. I took it at
that point that the Florida Supreme Court had a lot of confidence in Lewis and
that was something better handled at the trial-court level than to be resolved
before the Florida Supreme Court at that point in time. They got off of it later.
P: Also as part of this decision, they extended the deadline until Sunday, November
26 at 5:00, or Monday if the office was not open Sunday. Where did the
November 26 date come from?
C: I have no idea. That was the biggest surprise to me coming out of that opinion.
First of all, they open themselves up for the attack that they created new law.
Second of all, it looked like it was arbitrary. Why do you pick the Sunday or
Monday right after Thanksgiving? Why not give them another couple of weeks?
Those who try to explain those dates say December 12 was driving it again,
because they were counting backwards. They said, if December 12 was the
deadline, if we get the returns this day, how long is it going to take to do the
contest proceeding, so that is where they came up with the Sunday and the
Monday if the office had been closed. They did not give a good explanation as to
why that was a rational date to pick.
P: Another part of this decision which I again thought was interesting that seems to
have been skipped over a little bit, the Florida Supreme Court disagreed with
Harris's interpretation of election law that said a recount was possible only in
case of a hurricane of voter tabulation. They even accused her of being inflexible
and therefore disenfranchising voters. That is a pretty strong opinion, is it not?
C: Definitely. I can sort of understand why the justices may have thought that. I
thought it was strange to put it into the opinion. If you look at that first decision,
of course, they came back and changed it later. They couched their decision in
terms of the Florida Declaration of Rights and the right to vote, not under any of
these other provisions in fact, they sort of reached out and grabbed that. If the
U.S. Supreme Court reached out and grabbed equal protection, the Florida
Supreme Court reached out and grabbed the Declaration of Rights to base their
decision on. That is why they had to say something about disenfranchisement,
because that was the only way they could say we have got to overrule the
P: Does that not make it a constitutional issue rather than a statutory issue?
P: Is that going to be a problem later on?
P: The issue really is, did they make new law?
C: What got missed because of all the other stuff that was going on remember,
when the U.S. Supreme Court remanded that case back to them and instructed
them what to do and basically said, were you making new law? Were you basing
this on such and such? At the very end, when all those court opinions were
coming out, [the] Florida Supreme Court very quietly issued an opinion that said,
of course we did not mean to create new law, of course we were aware of 3 USC
[United States Code], of course we were hoping to take advantage of the safe
harbor, oh and by the way, we are now issuing a new opinion. If you go and read
the new opinion, all that Declaration of Rights stuff is out.
P: The U.S. Code is title three, section five, which says that you cannot change the
rules after the game, essentially.
C: If you do not, Congress is not then going to throw out your returns on the basis
that they just do not like them. Basically your procedures are locked in. That
was direct response to the 1876 election when states such as Florida were
changing the method for counting votes right up to the time that votes were being
counted in Congress, it was then they created an election commission that was
also changing the way they counted.
P: Is it Article Two of the U.S. Constitution that says the election has to be
determined by the legislature?
C: Yes, electors are chosen in the manner chosen by the legislature of each state.
P: In terms of precedent, one court decision, and I believe this is the United States
Supreme Court, McPherson vs. Blocker, they wrote it was exclusively up to the
legislature to define the method by which the electors are chosen. Why did the
Florida Supreme Court not deal with some of these issues on their first opinion?
C: Good question. I think they left an opening. One of the things that I was trying to
figure out as we were going through all of this, was the tension that we know is
there between the Florida legislature and the Florida Supreme Court affecting
both branches as we went through this. To me, it was very clear, the House
could not wait to overturn the Florida Supreme Court, the Senate being a little bit
slower. Florida Supreme Court was thinking, legislature, we are going to take
care of this. While we had two Supreme Courts dealing with each other, we had
two branches of Florida government dueling with each other.
P: That may have been the more significant conflict, particularly at this time.
C: That was something that the national media did not pick up on because they
were not aware of those battles that had been going on between the court and
P: So, it is a partisan Republican legislature against what they perceive as an
activist Democratic state Supreme Court.
C: I believe that still is going on, we are seeing bills filed, you saw the Judicial
Qualifications Commission and the changes there. In just the last few days, the
House announces they have created a committee to study the impeachment of
two circuit judges because they do not believe the Judicial Qualifications
Commission, appointed by the Supreme Court and guided by the Supreme
Court, is being strict enough in its punishment.
P: James Baker said that the Florida Supreme Court had issued an order that
neither side requested. Was that a fair assessment?
C: Yeah, they jumped in. They were not going to wait for someone to come in and
file a petition.
P: Why do you think they did that?
C: Going back to what I said earlier, judges watch the news just like anyone else. I
think the Florida Supreme Court said this is going to be here, it is just a question
of when. Do we want to go ahead and take the initiative and get it here now, or
get it in a posture that we prefer or are we going to wait and see what happens?
They were, at least a majority of that court, was upset with what they were
seeing, [and] felt it was time to get some guidance at the very top. Remember
you have Palm Beach circuit court, Broward circuit court, Dade County circuit
court, Volusia circuit court, Leon County circuit court. I think the Supreme Court
said, it is time for us to get this all into one place.
P: I think this is an issue that has been missed by most of the press and most of the
books. I think it is rather unusual for the Supreme Court to just step in.
C: Very, very unusual. Without someone saying, please step in. I am sure if
someone had walked over with a piece of paper that said almost anything, they
would have gone ahead and done it. But to not even wait...
P: That seems to be, at least you can see from the Republican legislature's point of
view, this is pretty partisan. What is happening is the Florida Supreme Court is
jumping in to save Gore. That is the way they interpret that.
C: They are doing that under their jurisdiction under Article Five which does allow
them to reach down and pull up a case which was originally put in to try to
resolve conflicts, but never in a context like this. It was also, when there was a
matter of great public importance. They were concerned that the litigants, neither
one of them was going to take it up, they said, no, we are going to grab it.
P: They knew eventually Gore was going to get to them, obviously. It is also
interesting to note this vote is 7-0. I guess the most crucial vote later is going to
be 4-3. That is an issue. Let me talk now about Seminole County and Martin
County. A little background, Sandra Goard, election supervisor in Seminole
County, essentially allowed Republicans to come in her office and put in the voter
ID number on request for absentee ballots. The Gore people argued that
number one, it was partisan, and number two they argued that it was against the
law. Is it or was it against the law? In Martin County, as I recall, they actually
took the ballots out of the office.
C: Let me first give you a disclosure, I have represented Sandra Goard in the past in
an unrelated matter, it was a continuing representation on election law in a local
election. At the time that the [Harry] Jacobs case was filed, she asked us if we
could take the case. At that time, the firm had not yet made the decision to stay
out. So another lawyer in Holland & Knight [law firm] did make an appearance,
but then we withdrew after the decision was made to not only not represent either
party, but to [not] represent the elections officials. I did want to disclose, we did
have some minor involvement, but we did not participate in the case. In the case
of Seminole County, what was done, to me, was not illegal, so long as it was in
her office. Where there may have been a question is, was it supervised,
because what you are allowing someone to do is alter a public record. To me
this was not an election-law issue, it was a public-records issue. It did not deal
with the ballot, did not deal with the envelope, it dealt with the application.
Florida had already created too burdensome a process anyway. One of the
things with absentee voting, it is a pendulum, we swing back and forth. I can
remember several years ago, the legislature repealed everything on that and
said, anyone can vote absentee.
Then, we had the problem with the Miami mayor's election where there were
tainted absentee ballots. [The] legislature said, we have got to fix this, so we
swung back the other way. We made it so difficult that you could have probably
thrown out hundreds of ballots if you had wanted to, or thousands of ballots. I
think that is what happened here. They had required information to be put on a
form [and] no one knew what their voter ID number is. Most people think it's their
Social Security number. It is not. It is a unique number just for that supervisor.
As far as Seminole County was concerned, I did not think that was a problem. In
Martin County, again, [it was] a public records issue. Public records have to
remain in the custody of the custodian of the record, which in this case is the
Supervisor of Elections, [and] she allowed them to be taken out, to me that is a
problem under the public records act, but not a problem under the election code.
I never thought either of these cases had much of a chance, they did not look
good. What they were relying on was a case out of Liberty County involving a
school board election in which there was such rampant fraud, vote-buying, by all
sides, that the circuit court could not figure out what had happened. When it got
to the Florida Supreme Court, the court, in an opinion by Justice [Ben] Overton
said, this is so screwed up that we cannot tell what is good, what is bad... it has
so tainted the election that we are just going to throw out the absentee ballots
and go on the machines, but I emphasize that was a very extraordinary remedy.
I saw Ben Overton at the University of Florida in late September. I talked to him,
I said, did you like the fact that your opinion in the Liberty County case was used
so much in Seminole and Martin County? He said, one of the things I learned on
the court, you can write an opinion thinking you have clearly defined what the law
is, and then you find out several years later, some lawyer has figured out
something totally different than what you meant. I think he probably thought they
were stretching it too far.
P: Ultimately, the decision of Nikki Clark [Leon County Circuit Court] and Judge
Lewis in dismissing Gore's challenge was correct because if you eliminated those
votes, you disenfranchised voters, who by their own measure, had not done
anything wrong. You would agree with the decision?
C: Definitely. They ruled fairly quickly. The networks saw once those cases went to
trial, [there was no case]. [At] CNN, we were covering those trials live and I was
on trying to explain it. It was very clear just a couple of hours into it, the
producers were saying, there is nothing here.
P: It was interesting, [Republicans] were thinking about challenging Nikki Clark to
recuse her. They backed off on that, probably a wise decision. While we are on
this, why did the Secretary of State, Katherine Harris, not recuse herself, since
she was obviously on a Bush campaign organization? Should she have recused
C: Secretary of State in Florida, up until the next election, has been a partisan
elected office. Many Secretaries of States have been actively involved in
partisan politics or have been candidates themselves for office. The fact that the
Secretary is involved does not, just per se, that she should have recused herself.
I can tell you from my experience, I served under Bruce Smathers [Florida
Secretary of State, 1975-1978, Florida state senator, 1972-1974; son of U.S.
Senator George Smathers] and he was running for governor. When he resigned,
Governor [Reubin] Askew [Florida governor 1971-1979] appointed Jesse
McCrary as Secretary of State [1978-1979]. Now, Jesse was not going to run
again, but both of those Secretaries said, Division of Elections, you are
autonomous. I do not want to know what you are doing, I am not going to be
involved in your decisions, you announce the decision. As a result, we never had
any allegations that either of those Secretaries participated in any sort of partisan
decision. Now, we never had anything rise to the level that they have had here.
I do not think she was under any obligation to recuse herself. Clearly, her
decisions were being scrutinized. If she has got the exercise of discretion but
she is going to rule against you every time, that is the way it goes. I would
expect a Republican Secretary of State to issue decisions that are favorable to
the Republicans. If it had been a Democrat in there, I think they would have
done the same thing.
P: But if it were non-partisan, that would be a different set of circumstances.
C: Different circumstances, probably only by appearance. Even if an office is non-
partisan, you are still going to slant one way or another depending on your
personal point of view.
P: It was interesting that when the vote was being certified, she said she was in
charge of the elections process. When she was challenged by the Civil Rights
Commission, she said, that is not my job, that is [Clay] Roberts's job, so it
seemed a little bit inconsistent under those circumstances. There was also this
talk about Mac Stipanovich being in her office, that she had made phone calls, or
at least somebody used her cell-phone to call the Bush headquarters. That there
were Bush speeches on her computers, that she erased material on her
computers. Do you know if any of those charges are accurate or of any
C: [I] do not have any knowledge other than what I have read in the books and the
media. This whole attack on her, and I am not trying to defend Katherine Harris,
but when I hear that in a partisan election, a partisan official may have played
some politics, it reminds me of the scene in Casablanca when the inspector says,
I am shocked there is gambling going on in here, and then they give him his
winnings. Of course there is going to be politics going on.
P: Did you think the media was unfair to her, they started talking about Cruella DeVil
[Walt Disney villain in movie, 101 Dalmations] and her makeup and all that.
C: Some of that, I thought did go too far, but I think she also allowed herself to be
put in a position. She would only appear in a structured environment, she did not
make Clay Roberts available.
P: She did not want to talk about it.
C: She would not answer any questions. I thought she should have been out there
talking a lot more trying to explain, and what came across was that she was
either going to be adamant and do the thing that Bush wants, or she does not
know what she is talking about so she does not want to get in an unstructured
environment where she gets hit with a question she cannot answer, or both.
P: Certainly, in terms of her public relations, she made a lot of bad judgments.
C: If you look at it now, she is a hero to the Republicans, Democrats cannot stand
her. It probably would not have made any difference if she had played positive
PR. I think she probably would have been portrayed a little bit better in the
P: Jeb Bush did recuse himself from the state canvassing commission. Do you
think that was the correct decision?
C: I thought that was appropriate. The difference there is he was related to the
candidate. It is one thing to say, I am supporting X candidate. It is another to
say, I am his brother. I thought that was appropriate.
P: Do you think he used his office in any way to further his brother's election?
C: [I] do not have any first-hand knowledge of it, but if he did not, I would be
P: We know that there were numerous phone calls.
C: That and a lot of the staff was allowed to take leaves of absence and work on the
legal side of the challenges. He also did things, like on the certification of the
electors, some governors have, in the past, taken days to sign that certificate,
[but] he signed it the first chance he had and it went off. His staff, in their zeal,
sent it FedEx [Federal Express, shipping company] and that statute says it has to
go [by] certified mail. So they had to go retrieve it, send it back, and send it
P: On November 17, Judge Lewis denies Gore's attempt to stop the certification,
saying that the certification results are final. Then the Florida Supreme Court
puts a hold on that, until they can hear from Gore. At this point, what is Gore
trying to do? Here he is, at this point, still not into the contest phase. What is his
strategy at this point?
C: From what I could tell in listening to the Gore people we interviewed, there was a
legal strategy and there was a political/PR strategy and the political/PR strategy
triumphed over the legal strategy. I think the lawyers, many of them wanted to
go ahead and get to the contest because they were not making any headway on
the recount. The problem was, over on the political/PR side, if we allow this
election to be certified, the public is going to say it is over when they hear
certified election. Then it is going to look like a bunch of lawyers went to court
and overturned the election. They wanted to do absolutely everything they could
to avoid the certification. That came back to haunt them later because they ran
out of time on the contest. I have always thought that the loser has a better shot
on a contest-proceeding than you do in a recount-proceeding. Recounts very,
very seldom ever result in a new outcome.
P: Although in this case he clearly got votes in Dade County and Palm Beach
County. The issue that also comes up, I believe it was on the November 16, is
that Dade County finally voted 3-0 to stop their recount. There is some argument
that they were intimidated into making that statement. As I recall, they were on
the nineteenth floor and all these protesters came up and they were yelling and
screaming. Did you have any sense why Dade County decided to discontinue
the vote? They said they did not have enough time, but clearly they would have,
would they not?
C: At the rate they were going, they would not have. It would have been very close.
I have known David Leahy [Supervisor of Elections, Miami-Dade County] back to
when I first joined the Department of State. He was an assistant supervisor in
Dade County then; he is also the only appointed supervisor in the state of
Florida. David does a very good job in a very difficult county where just about
anything you do is viewed with some suspicion. I think he felt it was just a
practical matter that they were not going to get finished so why start doing an
impossible task. It is going to create more tension, probably will not change the
outcome, he is probably looking at Broward and Palm Beach and seeing what is
going on there, so why go through that? I do not have any reason to question his
motives or whether he was intimidated or not. He has been through so many
raucous campaigns down there, I am not sure a few people banging on the door
is going to cause him to change his mind.
P: I think every election is controversial in Dade County. The Florida Supreme
Court on November 21, by again, a 7-0 vote accepts hand recounts, in Volusia,
Broward, and Palm Beach. Then once again, talks about this November 26
deadline, and then I think the difference from the earlier decision, is they order
Katherine Harris to accept those recounts submitted by that date. What is the
long-term significance of this course?
C: In terms of election law, I am not sure that there will be any. I think a real
question that still has not been answered in any of the books I have read yet, but
probably got closer in [Judge] Posner's, is will any of these court decisions
coming out of this election turn out to be some significant historical precedent?
Or is everyone going to say the 2000 presidential election in Florida was an
aberration and therefore you can ignore this. I think probably in the long- or
short-term, that Florida Supreme Court decision extending the time probably did
as much as any decision they have done to get the legislature all upset again.
We could have gotten to a constitutional crisis, perhaps a Florida constitutional
crisis, if things had not settled down eventually.
P: One of the things the court said, or maybe these are the interpreters of the
decision, that they had used a statutory construction and that the court itself
admitted that they had fashioned a remedy of sorts. What precisely does it mean
when they say statutory construction?
C: It is supposed to mean that there is a statute that is not clear and that it is up to a
court to clear it up.
P: So, they are just interpreting the law.
C: But there is nothing in the Election Code that says you can extend the deadline
to the 26th of November. They rewrote the Election Code when they did that.
They may very well have argued, but they did not do a good job, I thought, in
their opinion, they are going to say, this is an extraordinary circumstance that
requires an extraordinary remedy. But it was not like any of the parties said,
would you please extend to November 26.
P: They once again, they did not bring up a constitutional issue, they talked about
voters must not be disenfranchised. That is an on-going issue, I presume.
Somebody wrote some op-ed piece and said that the technical requirements,
they accuse Harris of being guilty of hyper-technical decisions, that they were
less important than vindicating the will of the voters, that should take precedence
over state law. What is your reaction to that?
C: You start with the premise that the Election Code, if properly and throughly
followed, will reflect the intent and desire of the voters. The whole system is
structured to do that. The system can be then twisted, sometimes, maybe, to
affect that. The fact that someone strictly follows the law does not mean that you
have done it deliberately to disenfranchise the voter. Someone could say, well,
the law says this, you go over and do that, you have rewritten the law. In the
case of Secretary of State, what she was doing was saying, I am an
administrator and while I have discretion, I choose not to exercise it, which is an
exercise of discretion in and of itself. She is basically saying, if there is a
problem here, tell the legislature to fix it, which they now said they have done.
To that extent, I think you could argue she was doing her job.
P: Also under this law to determine the intent of the voter, a manual-recount is
C: In the role of the Secretary of State here, there were a couple of things that
troubled me during the whole process. Having been there, the historical role of
the Secretary of the State in election proceedings has been as a nominal
defendant. The Secretary is the one who gets sued, because the Secretary is
the chief elections official. The Secretary steps back and says, okay candidates,
or political committees, or parties, you fight it out in court -just tell me what to
do. Or the Secretary says, I am so confused over what I am supposed to do or
not do, I want some guidance; perhaps politically, I do not want to be the one
who has to make this decision. So, the Secretary goes to court and says, court,
tell me what I am supposed to be doing here. What happened in the case of
2000 was that neither of those historical models was followed. Instead, we had a
Secretary of State that said, I am going to make the decision and I am
announcing my decision. Here is what it is, period. I do not need any political
cover. Second, I am directing my outside council to aggressively defend this
office and probably have one of the highest visibility of any lawyers who has ever
represented the Secretary of State's office. That is probably the thing that
throughout broadcasts, I kept telling the CNN people, I just have never seen a
Secretary of State's lawyers [do these things].
[End of side B1]
P: I wanted to point out that your statement about Katherine Harris and her brief
against the Florida Supreme Court to stop the recount was something that,
literally, you had never seen a Secretary of State do.
C: I had never seen a Secretary take that aggressive [of] a legal position. I guess
we could argue we have not seen a situation that may have forced the Secretary
of State to take such an aggressive position. Historically, the Secretary of State
has sat back and let the candidates fight it out and said, court, tell me what to do.
P: Another issue that has sort of been by-passed a little bit. Gore filed a suit
requesting the Florida State Supreme Court to restart the Miami-Dade count.
The Florida Supreme Court refused to do so.
C: Very promptly refused to do so. That was on a Sunday, in fact.
P: Why did they do that?
C: I believe, from reading as best I can, all the court's opinions, that they were
taking the position that it was in the discretion of the local canvassing boards to
do recounts in a certain manner. If, just as they said, a canvassing board can
decide to do a manual-recount after the automatic machine-recount,
notwithstanding the Secretary's position, I think to be consistent, the court has to
say, a canvassing board can also decide not to do a recount. To that extent, I
think they were actually being consistent with their other positions that an
incredible amount of discretion was vested in the canvassing boards.
P: Somewhere I read that at some point, the court said the Dade County
Canvassing Board had the discretion not to continue, but once they had started,
they should have continued.
C: Which is contrary to a case that came out of Broward County several years ago,
it was either DCA [District Court of Appeal] or Supreme Court, but it is one that
has been relied upon for some time. The court said, there is a tremendous
amount of discretion in the canvassing board. They can decide what to do and
when to do it, totally in their discretion, as long as they do not operate contrary to
law or arbitrarily. So I thought, based on that opinion, that if a canvassing board
starts a manual-recount and then determines that either they cannot finish it or it
is not making any difference, that they could stop it.
P: On November 22, Bush petitions the United States Supreme Court for a writ of
certiorari, saying the Florida Supreme Court had rewritten state law and therefore
they should be overturned. What was the strategy behind this particular appeal
to the United States Supreme Court? Do you think they thought the court was
going to take the case?
C: I did not think the Supreme Court would take the case, certainly not that early. I
thought there was a very good chance when we got to the very end, that the U.S.
Supreme Court might step in, but I quite frankly thought it might be after the
matter had gotten up to Congress. I thought this Supreme Court was going to
say, this is a matter for Florida to work out. Again, though, just as judges watch
TV, I think justices watch TV. I believe they felt that there was some need to try
to step in, though, at the time that they remanded back, the Florida process was
still continuing. To me, we had not gotten to an extreme crisis point. The very
fact that when they remanded it back, the Florida Supreme Court did not respond
for two weeks or three weeks, when they finally said, of course, we did not mean
to rewrite the Election Code. If December 12 was the critical date, why was it
that the U.S. Supreme Court needed to remand it well in advance of December
12? To me, it was clearly the court stepping in and saying, we are going to be
the ultimate arbitrator of this. I think they had already decided at that point.
P: No matter what the Florida Supreme Court answered.
C: I think what they were trying to do at that time, and I hate to try to predict what
the justices of the U.S. Supreme Court are doing, I took it that the U.S. Supreme
Court was lobbing it back to the Florida Supreme Court and basically said, now, if
you will behave, we will not beat on you too much. Here is the guidance we want
you to follow. When the Florida Supreme Court ignored that, and ordered the
statewide recount of the under-votes and that went back up, that was when you
got the almost vitriolic response from [Justice Antonin] Scalia [U.S. Supreme
Court Justice, 1986-present], who was basically saying, you have ignored us, we
are the U.S. Supreme Court, we will be obeyed.
P: It was almost clear in the remand by his comments that he thought this was a
situation that they would overturn. Part of the argument was... I am not sure this
ever became much of an issue... that this violated Three U.S. Code, Section
Five. That tends somehow to sort of fall by wayside after a while.
C: I never viewed that statute as being a hard deadline. It was a protection to the
states. It is where Congress said to the states, if you have your election for
presidential electors and you get the electors to us by December 12 and you
have not changed your election process between the election date and
December 12, then your slate of electors is prima facie valid. We will not reject
them, but all of a sudden, December 12 became a hard deadline.
P: Another little minor issue, David Boies talked about this in this session at
University of Florida law school, they filed suit in Nassau County because they
used the election night tabulation and did not re-tabulate the vote. Boies says, if
I cannot win that argument, I am going to give up the practice of law, which
turned out to be a monumental overstatement.
C: I have not noticed recently that he has quit.
P: Why did they file that? Why did he think he could win?
C: I think what happened was when they got ready to go in and challenge various
counties in their contest, they looked at all of the counties and if there was any
major discrepancy on election night, they went for it. In Nassau County there
was a big swing. What happened? They turned in the wrong [numbers]. It was
one of those that once it went to trial, if you remember Shirley King [Supervisor
of Elections, Nassau County], the supervisor, was on the stand for about fifteen
minutes, then off, and that was end of that. In the rush to get into court they just
said, wait a minute, here is a swing of 100 or 200 votes. It was a pretty
significant amount. They were looking for everything.
P: If certification was 537, it does not take much. They are looking for all of these
options, if they can get Palm Beach, Dade, Broward, Volusia, Nassau, you add
them all up, Gore might have enough votes. I guess that was part of what they
were doing. The legislature forms the Joint Legislative Oversight Committee on
Electoral Certification. What was that all about?
C: As I understood it, Mike Boettcher [National Correspondent, CNN] was covering
this for CNN. He came back and was keeping us briefed on the legislature. If
you will recall during this time-frame, Speaker of the [Florida] House Tom Feeney
[Florida state representative, 1990-1994, 1996-present; Speaker of the Florida
House], was daily saying, let us convene the legislature, let us end this. John
McKay [Florida state senator, 1990-present], the president of the Senate was
going, whoa, let us not go quite so fast. I think John did not want the legislature
to get into the middle of all this and then find themselves embarrassed. Feeney
has been very much against the Florida Supreme Court, he has had problems
with them. You knew that there was a potential role for the legislature at some
point, even though federal law says it is ultimately up to the governor anyway.
Feeney was making the point, if we are going to change the law on electing
electors, we have got to do it before December 12. That was the deadline he felt
that they were under. They could not come to a complete agreement on going
into a special session, so they said, let us form this committee and get the facts
and get advice. One of the things McKay wanted was in the proclamation calling
a special session, he wanted to make sure they had covered all their
constitutional issues, so they ended up forming this joint committee. I think it
also had the effect, it is more PR from the Republican standpoint that there is a
process trying to be hijacked here. It gave the opportunity for a calmer
discussion of some of the legal issues. Second of all, the legislature was saying,
everyone else was in this hunt, we are going to be in it too. I described it on the
air when that committee convened. Mike [Boettcher?] came over and told us
about it. I said, the first shot just got fired across the bow of the Florida Supreme
Court by the legislature. It was basically saying, Court, we are watching you, we
are here ready to act.
P: It probably would not matter what they decided. Do you think that the Florida
legislature has the constitutional authority to appoint the electors in case of a
C: They can appoint them, but the Governor has to certify them.
P: Which he would have in this case.
C: From what I understand, the U.S. Constitution says they can do it any way they
want to. You do not even have to have an election. If the Florida legislature
says, we are going to just appoint the electors, they can do it.
P: They went back to this Electoral Count Act of 1877, which says if it is in dispute
the legislature can step in. I think Tom Feeney was looking at the constitutional
basis for doing this. My impression was, this was a backup. They wanted to
have the legislature in session, able to take care of this issue by December 12, if
the vote was still in doubt.
C: Keep in mind that at the point they were doing this, we still did not know what the
U.S. Supreme Court was going to do.
P: Now, your reaction to the discussion by Feeney and by McKay. Feeney seems
extraordinarily partisan, but McKay seems to be much more cognizant of the fact
that this might set a precedent that they do not want to be setting. Next time it is
a Democratic legislature, they can come in and elect their own electors.
C: That is true. I have known John McKay for several years as well as Tom
Feeney. I knew John when he was chairman of the Bradenton Downtown
Development Authority. He has always been very cautious. He will take bold
action when he thinks it is appropriate, but he always wants to make sure his
homework is done.
P: Do you think they really wanted, I am sure they did, they really wanted the courts
to decide this in their favor? That would be the preference. Another issue that
comes up that I am a little bit confused about, is that it is not until November 27
that Gore officially contests the Florida results, he had to wait for the certification.
This is twenty days after the election. One of the issues, I believe Dexter
Douglass talked about this, that there was no mechanism for legally getting a
statewide recount in sixty-seven counties. You had to go to each county and that
would have been extraordinarily difficult.
C: Other than the automatic recount that the Secretary of State can order, there is
no mechanism at that time for a state-wide recount. There is now.
P: That would certainly be one reason for putting off a contest, because they
thought, maybe we can pick up enough votes from the protest phase from the
counties where they felt they had the votes.
C: Dexter eventually found that there was a mechanism when the Supreme Court
ordered the state-wide recount.
P: They could have gone through that process on their own. The issue in the
contest ends up going before Judge Sanders Sauls. The Democratic lawyers
said that he is the worst judge we could have drawn because he was a
Democrat, but pro-Republican and slow. Could they have challenged Sauls?
C: They could have, but they would not have had any basis for him to be removed.
Then, it is like when they [Republican attorneys] were debating what to do with
Nikki Clark. [It is like] the old saying, if you are going to try to kill the king, make
sure you kill the king. If you try to remove a judge and then you do not get the
judge removed, you are going to be in trouble.
P: Looks like you are judge-shopping, trying to get one that will rule in your favor.
C: When Sauls got the case, he was the only circuit judge in that circuit who did not
have an election-law case, other than the chief judge. The chief judge was trying
to stay out of it because he was trying to manage all of them, so it was not
surprising that it went to Sauls.
P: They probably knew that ahead of time.
C: I think they thought there was a pretty good chance. If it had gone to Lewis or
gone to Clark, they would have gone to the chief judge and said, we are too
P: Once we get to this case, one of the issues that comes up, is that David Boies
wants an expedited calendar because he knows now [they] are really getting into
time constraints. Sauls refuses to accept that. Why do you think he made that
decision, knowing that they did need to expedite this case?
C: I think there are reasonable explanations for Sauls' decisions there. When Boies
said, expedite, he was talking about going to trial the next day. Sauls said, hold
on, if I am going to have a trial, it is going to be accelerated, but everyone at least
gets some chance to look at evidence.
P: You have to have a hearing.
C: There was the question also of the ballots. Boies wanted the ballots in
Tallahassee. If you remember those infamous hearings with the telephone and
Murray Greenburg [First Assistant County Attorney, Miami-Dade County, 1980-
present] on the phone from Dade County. I have known Murray also for years.
It was so funny to go, Mr. Greenburg, when can you get those ballots up here?
Well, it was going to take a day to box them up, put them on a truck and get them
up there. Which still is one of the most ludicrous things, to watch these
helicopters following this truck all the way up from south Florida to Tallahassee.
When the truck got to Tallahassee, there was this crowd at the back of the
courthouse. It is just a Ryder truck pulling in, but everyone had to watch this
P: Both ways, both sides making sure that somebody did not tamper with the
C: This is like watching O.J. in the Bronco [reference to O.J. Simpson's low-speed
chase prior to his arrest for murder, 1994]. It is just a Ryder truck going up. I
thought that Sauls was basically saying, we are going to have enough time to do
the hearing. What Boies, I believe, was concerned about was when the witness
list came in, [the] Democrats had a fairly pared-down witness list.
P: Two, I think.
C: Their statisticians and a couple of others, but then the Republicans had twenty,
[or] more than that. The Republicans are saying, we need to depose. Boies, one
of the things he was trying to do was not only expedite the case, but he was also
building a little bit of a record on appeal. He could go up and say, we did not get
relief because the judge was taking his time. I think he wanted to create an
impression that this was sort of a plodding judge, that he was running counter to
P: Did not the Bush lawyers finally persuade Sauls to truck in the ballots?
C: They knew they were going to get a day out of it.
P: This is clearly a delaying tactic, right?
C: Yes. I think the Republican lawyers figured if those ballots from those three
counties are sitting in Tallahassee, they cannot be recounted because they
figured the court was going to say, if they are recounted, they are recounted back
in their home county, which is another day going back.
P: But then Boies takes Sauls to task because he did not count them.
C: He says you have got the evidence here, why not go ahead and count them and
just do not release the results? Or at least get started?
P: The Democrats really needed to have those ballots there actually, otherwise,
Sauls could not have counted them if they were not there. What about his
decision? There has been a lot of criticism, we mentioned this earlier. He simply
ruled that Gore did not prove that there was a probability of the votes changing.
Boies of course, argued against that. How can Sauls tell? He did not look at the
ballots. What do you think of the decision by Judge Sanders Sauls?
C: I thought Sauls was correct on the law. I did not think the Gore campaign had
shown that, but for what they were complaining about, the results of the election
would have been different, which is the standard. Even though they were in a
contest-proceeding, they were really protesting, because what they were saying
is, that if you just look at the state as a whole in this election, it is just so close,
we need to do a recount, a manual-recount, and do it under the supervision of
the court, which is a protest. Sauls did not buy it. He said, you have not shown
me that there is fraud, [or] misconduct by a public official, [or] some sort of illegal
or improper activity. You are just telling me it is a close election and we ought to
recount it, so you do not win. Boies later said they knew they were not going to
win under Sauls, so they wanted to get out of there as quickly as possible. We
were talking about what was going on before the trial. I want to pass along one
story. In the photos I showed you, you may have seen the ceramic duck. Judge
Sauls' nickname is Sandy -just keep that in mind. During the pre-trial hearing
when all this maneuvering was going on [with] the ballots and all of this. At one
point, I think all the lawyers were standing up and they were all making motions
and everything. Sauls said, stop, wait a minute, he said, gentlemen, you guys
are throwing so many motions at me I feel like I am being nibbled to death by a
duck. We heard that and Bill Hemmer jumped on that, and we kept using that
and using that. That night, one of the CNN staffers, I do not know where she
found it, she found a ceramic duck. We put it on top of our monitor and we
nicknamed it Sandy. When any of our guest showed up they had to pet Sandy,
our pet for the elections.
P: Obviously, Boies and Gore will appeal Judge Saul's decision to the Florida
Supreme Court. There is obviously a conflict between the Supreme Court
justices and Judge Sauls, who has been reprimanded by them and removed as
chief judge. Was there any kind of personal animosity toward Sauls that was
obvious in the Florida Supreme Court decision?
C: I did not think there was but, by all indications, Sauls took it as a personal
rebuke, because he removed himself on the remand. One other thing I think also
has been missed is something that could have happened and slowed this down
everywhere, is there was no direct appeal from Sauls to the Florida Supreme
Court, the appeal was actually to the First District Court of Appeal, then the First
District certified it to the Florida Supreme Court. Now, the First District Court of
Appeal, that happened on every single case that went to the Florida Supreme
Court, First District Court of Appeal [state court] clearly decided they did not want
to be in the middle of this. They almost certified as soon as they got it, but had
the First DCA said, I think we will take this case, you would have had a much
different schedule and you could have had a different outcome, because then
from the First DCA to the Florida Supreme Court is not an appeal of right. It is
discretionary with the Florida Supreme Court.
To show how that can affect things, if you remember back early in the process
where all those cases were filed in Palm Beach County, one of those they
wanted to appeal to the Florida Supreme Court, but it had to go to the Fourth
District Court of Appeals first. When the courts hear this, it is usually in a three-
judge panel that decides what to do with it. When it went to the Fourth DCA
there was one judge that wanted to hear the case and blocked it for at least two
days getting up to the Florida Supreme Court. That could have happened, all
these cases in Tallahassee, but the First DCA chose not to do so.
P: They could have held hearings, could they not?
C: They could have set a briefing schedule, set oral argument, taken their time to
issue an opinion, and then that opinion would have been what went up to the
Florida Supreme Court.
P: Why would the appeal from Sauls go to a federal court?
C: No, First District, that is a state court.
P: As the Sauls case is going on, we have the beginning of the oral arguments in
the U.S. Supreme Court. Give me some sense of how you thought each side did
in their presentations, start with David Boies. Supreme Court 1, this is December
C: Before the U.S. Supreme Court?
P: Yes, the U.S. Supreme Court.
C: Well, U.S. Supreme Court 1 was [Laurence] Larry Tribe [Attorney for Al Gore].
P: That is right, he argued it and Boies argues the second time.
C: [We were] listening to it, because that was all we could do.
P: It was on the radio, was it not?
C: It was broadcast after the oral arguments were over. I thought Larry Tribe did a
very good job and he came across, as a law professor who was lecturing his
students. I thought Ted Olsen did an excellent job, though it clearly seemed to
me that both Ted and the justices were having some problems with his position.
It seemed to me it was not familiar ground to them. They were in uncharted
territory for them to be talking about some of the issues that he was arguing with.
I thought, in Supreme Court 1, the two lawyers did an excellent job. Let me also
say, in terms of the dueling Supremes, that the Florida Supreme Court in the first
case seemed very alert, very knowledgeable, very prepared, very much wanting
to sort through this and was seeking guidance from the lawyers. In U.S.
Supreme Court 1, it seemed to me that the Court was struggling, was not maybe
as well-prepared as it could have been, did not quite know how to get out of what
it had just gotten itself into, was searching for a way out. In that time, the Florida
Supreme Court seemed much more self-assured of itself. Second go-around, I
thought it was just the reverse. Florida Supreme Court had been rebuked by
U.S. Supreme Court, there clearly was now a split on the Court, there was some
internal divisions, [in] the Florida Supreme Court. You go to the U.S. Supreme
Court, clearly we found out now, there are divisions, but there are five justices
that knew what they were going to do.
P: In the decision on December 4, the U.S. Supreme Court does not review the
federal questions presented by Bush, which I thought was interesting. They do
not rule on the Fourteenth Amendment on this occasion, correct? Then they
vacate the Florida Supreme Court order and remand the case back to the Florida
Supreme Court, in effect, asking them to explain their decision. Is that a correct
P: What was the reaction of the Florida Supreme Court when they received this
remand from the U.S. Supreme Court?
C: We do not know for sure what went on inside. It is clear that the U.S. Supreme
Court got the attention of Chief Justice [Charles] Wells [Chief Justice, Florida
Supreme Court, 1994-present]. I think he took it that they had just been rebuked.
I still find it interesting that when they vacated and remanded, you would think in
a case like this that the Florida Supreme Court and the U.S. Supreme Court, if
you read the decision closely in the first case, gave the Florida Supreme Court
their out. They said, were you trying to make new law or were you merely
interpreting existing law? If they said, here is the answer to our questions.
Instead of the Florida Supreme Court promptly saying, of course we were not
trying to make new law, of course we were trying to take advantage of safe
harbor, [but] they ignored [the remand], they just put it over to the side, and took
up the appeal from Sauls first, then issued that one with the remand still sitting
over here, not responded to.
P: So, that was a clear choice that they preferred to deal with the Sauls appeal
rather than the U.S. Supreme Court remand.
C: All I can imagine is that the majority of the Florida Supreme Court on the appeal
from Sauls said, all right, we have read the U.S. Supreme Court decision. That
was where we were involved in interpreting state and federal law. We now had
just a straightforward election contest before us. There is no federal question
anywhere in here. I believe the Florida Supreme Court majority did not think that
the Sauls case could get up to the U.S. Supreme Court.
P: They thought that they had finished with it.
C: That it would stop at the Florida Supreme Court and I believe Boies thought that
P: Also, there is some argument that the Florida Supreme Court thought that they
had answered the United States Supreme Court. Is that possible?
C: I have heard that, but if that was the case, why did they then later issue an
opinion in response to the remand and wipe out the old opinion and issue a new
one? They did finally kind of clean up the record, but by the time they did it, it
was kind of too late. It was all over.
P: When we go through this process, we note once again that the U.S. Court of
Appeals, Eleventh Circuit, rejects Bush's request [to end] manual recounts.
Once again, they do not touch the Fourteenth Amendment. There was no
discussion of it at all in the other federal courts. This is not at this point an issue
at all, is it?
C: Certainly not anything that has made the radar screen yet.
P: Now Gore appeals the decision by Sauls to the Florida Supreme Court through
the first district. On Friday, December 8, they rule 4-3. It is a very complex ruling
in many ways. Let me go over this and get you to comment on it. I think this is
right. They order Judge Lewis to hand-tabulate 9,000 ballots in Miami-Dade.
C: It turned out to be Judge Lewis, because Sauls recused himself when he came
P: They turned it back to Leon County. Why would they do that, because the ballots
P: A pragmatic process, okay. Secondly, they ordered Katherine Harris to include
in the final certified result 215 Palm Beach County, 168 Dade County votes for
Gore. Although there is a conflict because Bush says it is 176 in Palm Beach, so
they order that this be reconciled. Why did not the Florida Supreme Court
reconcile the difference between 215 and 176?
C: I think they were still trying to make it appear that this was an administrative
process and they were merely overseeing it from a judicial standpoint. Plus, this
is not the type of proceeding that an appellate court is really accustomed to
[handling or] designed to handle. They were not used to hearing the evidence.
That is why they send stuff back to a circuit court.
P: Then, which is to me somewhat bizarre, they ask for a manual-recount of all
under-votes. Why just the under-votes?
C: Because by that point, the Gore campaign had realized [that] the under-votes
were the only ones that made a difference. The question that the court did not
know, and that is why they had to send it back down, were these under-votes the
result of people consciously not voting, where you cannot find any vote, or was
this where the chad did not go all the way through, therefore no vote was
registered, or that they did not mark it so that a vote would be registered. You
can apply a standard on an under-vote much easier than you can on an over-
vote. An over-vote is just two votes there, how can you determine if they
punched one before they punched the other?
P: As we later found out, there were some [valid] votes in the over-votes. If you
would use what is now currently the standard. If they circled Bush and wrote
Bush in, that is clear they wanted to vote for Bush, even though they did not
blacken out the oval.
C: There would be more of a problem where you marked an oval. The Supreme
Court was focusing more on the punch-card counties, even though they ordered
the state-wide recount.
P: That is where the real problem was.
C: Let me just digress for a moment and tell another little story. That week leading
up to the Florida Supreme Court decision on Friday, the CNN team in
Tallahassee kept making these predictions. I got on a roll, I was getting
everything right for awhile. The big prediction is, when is the Florida Supreme
Court going to rule? So I said, Friday, late Friday. I was right up to that point. I
said, I think it is going to be a divided court, I was right up to that point. Then
they said, what is going to happen? [I said], they are going to uphold Sauls. I
missed that one because I did not think there was any way they could reverse
him. We had what we called the podium-watch. We were one of the higher
platforms in what is now called Chadville, where all the tents were set up behind
the Capitol looking on the Supreme Court. I had perhaps the best view of the
front entrance from up where the tents were. Everyone had someone down at
the door, the front door of the Florida Supreme Court.
When the podium came out, that was our clue that Craig Waters was coming out
within ten to fifteen minutes. He is the spokesperson for the Court. So we see
the podium come out and of course, we all start speculating what is going to
happen. Finally Craig comes out, I am telling Hemmer. I said, look [it is] Friday
afternoon, so far, I am on a roll. Craig starts saying that the court has reached a
decision in Gore v. Harris by a vote of 4-3. I said, I told you it was going to be
divided. The Court has reversed Judge Sauls. Oh my God! Bill almost fell out of
his chair. We all thought we were going home the next day, and you could just
hear the groan all over the news media, we are still going to be here for awhile.
About that time, Jeff Greenfield [reporter, CNN] comes on from New York. He
says, we have just left the gravitational pull of the sun, this is spinning out of
control. It was just amazing, just the whole atmosphere that evening.
P: Two questions about the Florida Supreme Court decision. Knowing what the
United States Supreme Court wanted, why did they not set a precise standard
other than voter intent? Because they would be making law?
C: That, and that is why they sent it back to the circuit court and said, set the
guidelines for the canvassing boards to follow.
P: This is to Judge Lewis.
C: It was to Sauls and then Sauls recused himself. I think their thinking was, we are
not changing the law. It is still voter intent. But in a circuit court, you fashion an
order that tells these canvassing boards what to do.
P: I think I have read somebody, I think it was Justice Harry Lee Anstead [Justice,
Florida Supreme Court, 1994-present]. They thought that they were never
making Florida law, they thought they were interpreting Florida law. They
somehow assumed that the United States Supreme Court would see it their way,
which I thought was rather short-sighted.
C: I can see them arguing that in their second case, I do not know how they could
be thinking that in the first one when they were extending the deadline.
P: The vote was 4-3 and the Chief Justice Charles Wells gave a stinging dissent in
which he said it had no basis in law, that it was going to cause a constitutional
crisis. Of course, he has always been kind of a maverick anyway. What did you
think of his dissent in legal terms?
C: [It] clearly was emotional, [which] makes for the best reading. I guess the
reaction I had, which Roger Cossack, I believe it was, agreed with me on:
appellate courts when they write their opinions very often on a dissenting opinion
or a concurring opinion really direct their changes at another justice than it is at
the litigants, but they still typically stay rather civil, no matter what goes on behind
[the scenes]. When you see an opinion that was written as bluntly as that one
was, recognizing it was done hurriedly but still, as we both said, you can only
imagine what it was like back in the conference room.
P: This was very personal.
C: Oh yes, I believe Charlie Wells thought the very foundation of the Florida
Supreme Court was being challenged.
P: So would it be directed at Justice Barbara Pariente [Justice, Florida Supreme
Court, 1997-present], or Justice Peggy Quince [Justice, Florida Supreme Court,
1998-present], or Justice Anstead, or all of the majority?
C: Perhaps all of them. We heard rumors later that Quince was the last vote to
come over, that she was actually over with Wells at one point, because she just
wanted to get it over with. Apparently, it was during the recount of the under-
votes that brought her back over to the majority. Who knows if that is true, but
that was the rumor that was swirling around after the opinion.
P: I wonder, would the Florida Supreme Court rule the same way if the positions of
the litigants had been reversed?
C: [I] do not know, do not know.
P: Boies said yes, Zack said yes, Dexter Douglass said yes.
C: Well, they were all on one side. Let me comment on one thing that this kind of
brings up, one of the things that troubled me throughout, in fact, it even prompted
Martha Barnett to issue a statement from the American Bar Association. I
thought in the news-media coverage they continually dwelled on the voter
registration affiliation of the various judges, the various canvassing board
members, and also seemed to say that all of these justices were appointed by
Lawton Chiles [Florida governor 1991-1998]. Only Quince was appointed jointly
by Chiles and Bush. All of them had been reviewed by Dexter Douglass, general
counsel to the governor. Obviously there was this political influence was kind of
going on. I thought that was a challenge to judicial independence. It was not
being reported as fact, they are a Democrat, that is a fact. It was, all right, they
are a registered Democrat, [and] you know what that means, or they are a
registered Republican, [and] you know what that means. So, every judge was
sort of put in this ideological corner or box, based their voter registration or who
appointed them, or whatever. I thought there were a lot of people trying to do the
best they could under very trying circumstances. I did not try to apply politics to
every single thing they did. Now, there were some things that were done that
sure looked like they were politically influenced. Was it political influence or was
it just that ideologically that is [how] they felt?
P: There is a distinction.
C: Right. Just because you may be conservative and you were appointed by a
Republican, the fact that you then issue conservative decisions that Republicans
agree with does not mean it is a political decision.
P: Also, I thought if it was a partisan court, all Democrats, where did the three
dissents come from? It is not a 7-0 vote whereas the other one had been 7-0.
So it shows some clear differences within that court. At this point, the question
obviously is, is there enough time to go through this process? They start out
doing the recounts, in some cases, some counties had already done them.
Some counties were going to have a difficult time because they were going to
have to separate the under-votes, right?
C: Some had already boxed them up.
P: In your judgment, had the United States Supreme Court not intervened with
December 12 as the cut-off date, could they have counted those votes in time?
C: Yes, though I think there would have been some additional judicial proceedings.
Let us just back up a moment. Florida Supreme Court opinion, as I recall, was
issued about 4:30- 4:45 of that Friday evening. It went right back to Sauls, Sauls
immediately recused himself, the case got assigned to Terry Lewis. That
evening Terry Lewis convened a hearing that ran until at least midnight, if not
somewhat after midnight, in which he was trying to figure out what to do in
response to the Florida Supreme Court decision. The Florida Supreme Court was
wanting him to set the guidelines for the canvassing boards and to tell the
counties what to do. What happened was that the lawyers could not agree on
anything, no one was going to agree on anything. The Gore people wanted to
start counting immediately, the Bush people wanted to slow this down.
Lewis did not issue an order, so the next morning these canvassing boards are
getting notices from their county attorney or the supervisor, [that] says, we have
to convene and start counting. I was driving into the location at the Capitol at
around 8:00 that Saturday morning. I was getting phone calls from supervisors
around the state, who knew me and had my cell-phone number. They were
[saying] what do we do? [They said], we have not gotten a court order, in fact, we
are watching CNN to try to figure out what we are supposed to be doing. Are we
supposed to be counting all under-votes, [or] only under-votes we have not
counted before. What are we supposed to be doing? How are we supposed to
be doing? What is the deadline for this? We are at a total loss for what we are
supposed to be doing, if anything. So what you had is some counties promptly
started, others sat around trying to wait for direction, others said, let us just start
counting and do what we can. That was when you heard people say there was
chaos throughout the state because there are sixty-seven counties, and sixty-
seven of them did not know what they were supposed to be doing or were taking
a different tack. One of the things that had also happened the night before,
within fifteen minutes of the Supreme Court decision, [the] CNN lead producer on
the ground in Florida who was in Tallahassee came up to me and said, what is
going to happen? I said, there [are] going to be recounts in all the counties
starting tomorrow morning.
P: Although four of them had already done recounts.
C: We were not sure at that point whether they were going to have to do them
again, or whatever. He said, are those proceedings open to the public? I said,
yes. He said, all right, we have got five crews and five reporters. Tell me the five
counties in the state I need to send people to. So, I told him to go to
Jacksonville, Volusia, Hillsborough County, Pinellas County, and of course he
was already in Palm Beach, then we had someone watching Leon County. What
actually happened on CNN, unlike some of the other networks, the next day
when those canvassing boards were milling around trying to figure out what to
do, you were seeing five different counties and all five were doing something
different. I said, I believe somebody is watching this and saying it is getting
chaotic in Florida. I was on the air that morning and was telling Bill about the
chaos. He said, let us go on with that. We went on and he said, what are you
hearing from the supervisors? I said, I am hearing there is chaos out there.
P: The people who were watching might have been some of the nine U.S. Supreme
C: In Scalia's opinion that afternoon, he said, there is chaos in Florida.
P: Judge Lewis did finally issue an order, he said, they had to be in by 2:00 Sunday,
December 10 which was not much time. I think some counties could not have
finished could they, in that time frame?
C: Either could not have finished or they would have really had to take on some
extraordinary measures, extra people, [and still] work around the clock.
P: On December 9, the United States Supreme Court is going to stay that manual-
recount pending a hearing, then you have U.S. Supreme Court 2.
C: Also keep in mind, the Eleventh Circuit still had the case. The Eleventh Circuit
on Saturday, mid-day, rejected the appeal.
[End of side B2]
C: We were talking on CNN, about the Eleventh Circuit decision and we were
analyzing the fact that the Eleventh Circuit, in what was apparently a fairly
emotional decision there if you recall there was a report that one of the judges
of the Eleventh Circuit ran out of the court building, got into his car, and stormed
off. Apparently, there were some real emotions there. We were still describing
the Eleventh Circuit when all of a sudden, Washington CNN cut into our ears and
said, we hear the U.S. Supreme Court is issuing an opinion. Ken and I are
saying, what opinion, what case? Apparently, what happened was as soon as
the Eleventh Circuit ruled, they filed a petition for cert, and the U.S. Supreme
Court came out with their decision within an hour or two. Either that concurring
opinion was already written or it was written hurriedly. We were flabbergasted.
That was when it was clear it was going to be over.
P: You knew at this point the Supreme Court was not taking it unless they were
going to make a quick and final decision. Now, in the hearings one of the issues
that I want you to explain to me is that the recount needed to be halted because
George W. Bush would suffer irreparable injury as a result of this erroneous
decision. When you say irreparable injury that means he might be denied the
presidency, but there is no clear evidence that in fact he would lose a recount.
How can there be irreparable damage without any clear evidence that that would
be the case?
C: In order to get a stay you have to show there would be irreparable harm,
irreparable damage to the party requesting the stay. That phrase in the court's
ruling has gotten a lot of attention because everyone said, what is the irreparable
harm? Yes, maybe George Bush does not get to be president. They wanted to
stay the recount because the Supreme Court knew there were not going to be
able to have oral arguments until Monday at the earliest. The recount was going
to be finished. What was still the biggest fear to the Bush campaign was that at
some point, Gore would edge ahead just a little bit. They felt they would lose at
P: Then the Supreme Court would be overturning an election of Gore, which is a
C: Much different, yes.
P: From the beginning, all Gore wanted to do was get the lead. Once he got the
lead, that would change the legal parameters.
C: If you are talking to someone who is very upset about the election, very upset
that Bush won, they will claim the U.S. Supreme Court made him President. The
response still can be, at no time was Gore ever ahead in the electoral votes and
was never ahead in Florida during all the recount process. Had it gone the other
way, if Gore had ever gotten ahead and the court said, no that was improperly
done, then it looks like the Supreme Court has selected the President of the
P: Talk about the oral arguments. It is interesting that Larry Tribe is now going to be
replaced, as it were, by David Boies. Do you know why that decision was made?
C: [I] only know, from what I have read, that apparently some of the people in the
Gore campaign did not think Larry Tribe did a real good job on the first U.S.
Supreme Court case. Again, they described him as a law professor lecturing
them. They also felt that this Supreme Court hearing was going to be much
more fact-driven than the first one. The first one was really theoretical; it was like
a law school debate, so that fits Tribe better. The feeling was in Supreme Court
2, that the justices were going to be asking a lot of questions about what is
happening on the ground in Florida. The feeling was that Boies was much better
qualified to respond to that, [because] he had been there and Tribe had not been.
P: That seems like a logical decision. One of the things I found interesting when I
was thinking about the case, is the Republicans have been arguing all along in
Florida that the legislature and an election should not be determined by the
courts, yet that is exactly what happened with the Supreme Court. Kind of a
C: What they are going to say in response to that is, no, the U.S. Supreme Court did
not decide the election. The election had been decided, the U.S. Supreme Court
just made it stick.
P: In the appeal, once again, we come up with this issue of December 12. Now
Boies argues, contrary to what he had argued in the first Florida Supreme Court
decision, that December 12 was not a set deadline, that December 18 was the
proper deadline. How did the justices respond to that?
C: From what I can recall they did not seem to really care. That was not an issue at
all. In fact, I was still surprised when he said December 18. If you are going to
change, go ahead and change all the way. I would have argued it was January
4, which is when Congress convenes to receive the reports of the electors.
P: It was Justice Stephen Breyer [Justice, U.S. Supreme Court, 1994-present] or
John Paul Stevens, one of those, who said that it is never final until Congress
says it is final. Here again we are talking about the legislature, they make the
final decision. Courts can decide all along, but until they decide, none of these
dates are really very relevant one way or the other. Explain to me what the safe-
harbor issue is.
C: It comes from the Presidential Election Act of 1887 which came out of the 1876
president election, the [Rutherford B.] Hayes [U.S. President, 1877-1881] -
[Samuel] Tilden [New York governor, 1875-1877, unsuccessful Democratic
presidential nominee, 1877] election [in which Tilden won the popular vote, but
Hayes won the electoral college].
P: That is this Electoral Count Act.
C: Correct. It is statutory but it sets forth the process, [of] how the slate of electors
are sent to Washington, and who they are sent to. It says the governor is the
one who certifies them. It talks about how Congress will receive them, how
Congress acts in response to the electors. One of the issues that had come up
during the 1876 election was that some of the states where there were contested
votes, including Florida, had changed their methods for counting votes or
determining results between Election Day and the day they sent their electors up
to Washington. What the statute said, was [that] it is sort-of a compact between
Congress and the states. If you get your electors to us by a certain date,
December 12, and you have not changed your electoral proceedings between
election day and December 12, we will not challenge your slate of electors. They
are presumed to be solid, valid, and they can not be challenged by Congress.
P: But they are still open to legal challenge in the court.
C: That is true, but then you get back to the question that the ultimate decision is up
to Congress. It is called safe harbor because if you get them in ahead of that,
then you have protected the sanctity of your electoral slate, and no one can
come in and say, there should be another slate in Florida.
P: Talk about the 5-4 Supreme Court decision, U.S. Supreme Court 2. Some
people have argued that it was not a 5-4, it was a 7-2.
C: I think you could read it either way. I think it is 5-4. Clearly, I think there were
four justices that had some problems with where the Court was headed. Now we
read that [David] Souter [U.S. Supreme Court Justice, 1990-present] could have
brought [Anthony] Kennedy [U.S. Supreme Court Justice, 1988-present] over if
he had another day or two. It just seemed to me there were five votes there that
were going to overturn the election. I was very surprised.
There were two things in the court's opinion that struck me. One was the
fact they relied upon equal protection. When you read that, you are going, my
God, does it go down to the precinct level? How are you going to apply it when
they are saying you have got to have a uniform method for counting votes when
you still have a decentralized system? What really struck me was when they
threw in that sentence that says, our holding in this case only applies to this case
on the equal protection argument. It was clear [that] they knew they had
wandered off into an area that that court does not want to be. They do not want
Bush v. Gore to be cited as precedent to them in another equal-protection case.
P: Two issues, number one, lawyers now say it is going to cited in every case and
they surely must have known that. Secondly, almost everybody has said you
cannot win in the [William] Rehnquist [U.S. Supreme Court Justice, 1972-
present, Chief Justice of the U.S. Supreme Court, 1986-present] court on
Fourteenth Amendment. I remember one case, a Georgia death-penalty case,
there was a very clear violation of Fourteenth Amendment against African-
Americans. They ruled 5-4 that the Fourteenth Amendment did not apply. Why
do you think they used the Fourteenth Amendment? Could they not use Article 2
and U.S. Code 3-5 and said it violated those two and let it go at that?
C: Remember, it is the recount. I think they read Article 3, Section 5, as being
nothing more than a safe harbor, all they said was Florida may have just waived
its right to the safe harbor. I think there were concerned that if it did get to
Congress we still had Congressional elections that were tight-as-can-be they
were not sure how it was going to turn out in Congress. One, you have got to
find your federal question to rule on, because they are basically stopping a state
proceeding. Second, they had to find a way to stop it and drive a nail into it.
P: Were there no First Amendment issues at all? I know that was part of the
original appeal that Barry Richard put in, that it also violated the First
C: See, I just did not think there was any reason for the case to be up there.
P: This is what you talked about, they put in everything they could think of. One of
the things the U.S. Supreme Court determined was that there was no remedy
anyway, because they were out of time. Clearly, part of the problem was the
Supreme Court, had they not remanded it to the Florida Supreme Court, if they
had ruled on the issues the first time around, there would have been time. That
seems a little bit disingenuous to me.
C: After the U.S. Supreme Court decision came out, a lot of the Gore lawyers
thought they still had a shot, [although] not much of one. When they were trying
to think through, what can we do now, they knew then they had to try to fashion a
pleading that could not get back up in front of the U.S. Supreme Court.
P: David Boies said, in the Florida law symposium, that it was a catch-22, it did not
matter what the Florida Supreme Court did. If they put a standard they were
making law, if they did not say anything, they violated the Fourteenth
C: Right, they were boxed.
P: And that this case had already been decided, they were going to decide it 5-4,
based on whatever issue they could legitimately use. When we look at the
dissents, the strongest dissent was clearly from Justice Stevens, who argued that
the decision was wholly without merit, that they should have never taken the
case in the first place. One of the problems he had with this precedent was that
it creates a problem, for let us just say, a court decision, because in courts, juries
decide on what is beyond a reasonable doubt. A reasonable doubt in Texas and
a reasonable doubt in South Carolina may be totally different, so how can the
Supreme Court make a decision which would literally destroy that concept?
What is your response to Steven's dissent?
C: Let us reach back into another political decision. When the U.S. Supreme Court
decided that the make-up of state legislatures was a federal issue, remember
Justice [Felix] Frankfurter [U.S. Supreme Court justice, 1939-1962] wrote, we
have just wandered into the political thicket which we may never get out of. They
are still in the political thicket as a result of that. I think they just created a
second thicket. I believe one of the post-election programs I have been on, there
was a discussion of [what will happen with] this equal-protection argument
despite the court saying it is for this case only. Another lawyer on the panel said,
we are going to have ten years of litigation over Bush v. Gore and whether it
applies to something else. What is going to happen, all it is going to take is one
Circuit Court of Appeals somewhere to say, yes, we are going to apply that, or
look like they are going to apply it. When it gets back up in front of the U.S.
Supreme Court, what are they going to do with it? He said, I think eventually it
will be determined it was a unique case, [but] it is going to take us ten years or so
to get there.
P: Let me try to get this straight. The real issue is the Fourteenth Amendment,
although I believe that seven of the justices thought that by changing the date,
the Florida Supreme Court had made new law. That does not seem to be the
focus, the focus is still on the Fourteenth Amendment, right?
C: If they made new law, so what? It just means we lost safe harbor.
P: So they needed a real constitutional issue.
C: To have something to say, this is over.
P: Justice Ruth Bader Ginsburg [U.S. Supreme Court Justice, 1993-present], in her
dissent, said that, a constitutionally adequate recount is impractical, to say that is
an untested judgment. She thought that since the court had reversed state
courts very seldom, that they should not have taken the case. Third, that a
general standard cannot be unconstitutional. You have to have some sort of
general standard. Breyer made an interesting comment that I had not heard
much comment on. He said, what we ought to do is remand it to the Florida
Supreme Court, set a uniform standard, and have a recount of all the votes.
C: I think Breyer was trying to grab a vote. Breyer felt that perhaps Kennedy might
say, I am not ready to stop this completely, I am not ready to so overwhelmingly
reverse a state court, give me something else I can hang on to. I think that was
an effort to reach out to Kennedy and Kennedy did not grab it, because I think by
that point, the five said, this is messy. Enough of this, it is time to end it.
P: Do you think part of it was purely because there might be a constitutional crisis,
they wanted to end it?
C: Yes, they were not sure where this was headed. It looked to them like it was
spinning out of control. I never thought we were in a constitutional crisis so long
as we were in the judicial proceeding.
P: Justice Breyer would say well look there is a remedy, it will ultimately be decided
by the legislature, by Congress. Let it run its course.
C: What would have happened if Bush v. Gore, [had been] sent back to the Florida
Supreme Court, they say that there is no standard. Florida Supreme Court says
okay, you have told us to write a standard, we will write a standard. Then of
course, there will be the challenge, [that] you have just changed [the] law. Okay
fine, we have missed safe harbor. Finish the recount, it turns out Gore wins. Jeb
Bush says I am not going to send that slate of electors because I do not think
that was done properly. I am signing the one for my brother, [and] sends it up.
You then have two slates of electors. You are outside of safe harbor, it is up to
Congress to decide. To me, that is when you have the Constitutional crisis.
P: But Bush would have won that anyway.
P: But if it is split...
C: Let us look at the scenario. In order to accept the electors, it goes to the House
and they vote by state delegation. Now the Republicans control the state
delegations, but the choice of vice-president is in the Senate. 50-50, Lieberman
is sitting there as the senator. Gore casts the deciding vote, puts Joe Lieberman
in as Vice-President.
P: That has happened before with Thomas Jefferson.
C: There is where you have your constitutional crisis.
P: That would have been interesting for historians. We want to have this played
C: If you recall, when Congress convened in [a] joint session to receive the results
of the electors' voting, in order to challenge a slate of electors from a state, it
requires a member of the House and a member of the Senate. All of the black
members of Congress from Florida contested the Florida [slate of electors]. They
needed a senator to go with them. They could not get one. We were one
senator away from a constitutional crisis.
P: What is your overall assessment of the 5-4 Bush v. Gore decision? Was it the
C: From a legal standpoint, no. From a historical perspective, yes. I believe that
legally, it is not going to stand the test of time, it is going to look incredibly
political, but right now, it sure looks real good.
P: Let me give you some comments, and you will know by the name what the
comment is going to be. Alan Dershowitz [lawyer, professor, author] said that it
was an egregious error and said it was the single most corrupt decision in
Supreme Court history because "it is the only one I know of where the majority of
the justices decided as they did because of the personal identity and political
affiliation of the litigants." He went even further to say the Rehnquist court is an
activist, right-wing, Republican court.
C: I would agree with his last statement, I would not agree with the others. This is
not to me a true conservative court. It is a very activist court and it wraps itself in
a conservative mantle. It is rendered some decisions that are pretty amazing.
P: And Vincent Bugliosi [author; prosecutor, Charles Manson case] called them
criminals, and said that they had stolen the election.
C: But look at the title of his book, [The Betrayal of America: How the Supreme
Court Undermined the Constitution and Chose Our President], he had to say
P: That gets more copies sold. The other issue for me is Richard Posner, which I
thought was a very reasoned approach to the issue. He said, sort of agreeing
with you that the decision was pragmatic, but not legal, and saved the nation
from a looming political and constitutional crisis, and that in the long run that is
not going to look good in terms of legal analysis, but they did the right thing.
What is the long-term impact of this decision going to be on the United States
Supreme Court? I remember Stevens said the loser in this is the public's
confidence in the court.
C: Short-term, until [Jim] Jeffords [U.S. Senator from Vermont, 1989-present]
switched, I thought you were going to see Sandra Day O'Connor [U.S. Supreme
Court Justice, 1981-present] retire from the Court. There were people that
speculated that she voted the way she did because she wants to retire, but she
would not retire unless there was a Republican in the White House. Right now if
she retires, I do not believe George W. Bush will be able to get any Republican
nominee through the Senate. I think that will be the retribution. Certainly not a
conservative. If he nominates someone that is moderate, that probably could get
through, he will just be so blasted. He is not going to do it right now, but it will
cause him severe political repercussions. I think in the short term, short of
someone dying, we are going to have the same Supreme Court for awhile unless
the Senate goes back Republican. If the Senate goes back Republican, I think
you will see O'Connor retire and Rehnquist probably retire. Scalia would love to
move up [to Chief Justice] but he will never make it, he will just have to stay
where he is. In that sense, the court has got the Democrats in the Senate just
waiting for something to happen. Long-term, I think the Supreme Court may
have damaged its legitimacy somewhat. It was amazing how the American
public accepted that decision. I think for the vast majority of [the] public, they
finally came to the conclusion, just pick somebody, we do not care which one it
is, just pick one of them. The Supreme Court picked one. It does look like a
court that injected itself in the most ultimate of political decisions.
P: In fact at that conference, you said this about the Supreme Court decision: we
are not final because we are right, we are right because we are final. Therefore,
no appeal for this.
C: You are at the court of the last resort.
P: It is a little off the legal issue, but I think most people were surprised at Gore's
concession speech. He was gracious and very humorous. If he had been like
that during the campaign, we probably would not have had these issues.
C: They took the handlers off.
P: That is probably the issue, he kept changing personalities throughout the
campaign and the American people just did not trust him. An issue I thought was
fascinating as well, is that the case is remanded to the Florida Supreme Court -
a lot of people have forgotten about this the Florida Supreme Court dismisses
the case, finding that the Florida election code does not provide the elements
necessary for resolution of the disputed issues. Where did that come from?
C: That was the court saying, okay, we give up. Legislature, it is yours, go fix it.
P: This is totally different from their 4-3 decision.
C: After you have been slapped down twice, you finally understand what is going
P: Some critics argued that both sides were reprehensible in their legal
presentations, and that this was a battle between very expensive hired guns for
both sides and was a blow to the legal profession, because they seemed to be
hired for partisan purposes without any regard for the law. Do you think that is a
fair analysis of the lawyer's participation?
C: I do not think that's fair. I was very impressed with the lawyers. Just like judges
and canvassing boards members, lawyers come with preconceived notions and
preferences. Some lawyers like Democrats, some lawyers like Republicans. I
thought both sides presented arguments that were plausible. I thought the
American public got a great education in how the judicial system works. It is not
always pretty, but I thought they did a very good job under extremely trying
P: One of the issues that I will ask Dexter Douglass and Boies, how do you prepare
a Supreme Court brief in two days? I don't know how you could even comment
on it, but how did the judges make these kinds of preparations under the most
demanding circumstances, with almost no time to think about it?
C: They did some things in hours that would have been done in days. They did
things in days that used to be done in weeks or months. That is the way election
law is. When I was with the Division of Elections, we had a couple of court cases
where literally the suit was filed in the afternoon and I was told to file a brief in the
Supreme Court that afternoon. You are going at a very fast pace.
P: Talk a little bit about the impact that Ralph Nader [Green Party Presidential
Candidate, 2000; activist; author] had on the campaign. It is a little away from
the topic of election law, but how do you think that impacted the election? Some
people argue that cost Gore the election.
C: It seemed to me there were a lot of things that cost Gore the election, and that is
one. I do not know that you can say it is all Ralph Nader's fault. A lot of
Democrats say, if you look at the situation, [with a] booming economy, basically
at peace, a popular though flawed president coming out of office, you have been
the vice-president for eight years, that should have been a no-brainer. Instead,
he lost to someone who was perceived as not being a very strong candidate. He
had a lot of money, but he was not perceived as a strong campaigner. I do not
know that Ralph Nader made the difference.
P: Some people say, it is Theresa LePore's [Supervisor of Elections, Palm Beach
County] fault, she caused Gore the election.
C: No way.
P: You could argue any one of these factors.
C: It rained in Boise, Idaho that day and somebody did not vote.
P: Bottom-line is, it should not have been that close. These factors would not have
come into play if Gore had run a decent campaign.
C: Another thing that gets mentioned some [is that] Florida was the focus of this.
Everyone says this election was decided by 537 votes. You can look all over the
country. I saw one study that said there were as many as 2,000,000 votes that
were not properly counted in the presidential election. And we are going to argue
P: In that case, was the media unfair to Florida? Think about Louisiana, think about
C: We were too good [of] a story. I thought there were times when they lampooned
us a little bit too much. We were clearly material for the late-night comics. I still
think that it was generally people trying to do the best they could.
P: One thing we found in a very, very closely scrutinized election, is that there was
no evidence of fraud. I bet if you did this to any other state, you would find the
same kinds of discrepancies, would you not?
C: Some people tried to argue that there was some ballot-box stuffing, but they
could never prove it, that during the recount, some extra ballots suddenly
appeared, [but] they could not prove it.
P: In retrospect, who do you think won the election?
C: It was a tie.
P: Some people have argued that the intention of the voters, a majority of the voters
in Florida would have been for Gore, but the reality is that Bush won. Is that a
C: Yes, I guess. I thought from the beginning of the campaigns, I thought the
Democrats had written off Florida. [A] candidate's brother is the governor, he is
very popular, [he has] got one problem with his One Florida initiative. [The] state
has gone mostly Republican. You have got some pockets of Democrats, but
basically this is a Republican state right now. I figured Democrats would stay out
of here and would spend most of their time in the northeast and far west. Then
when Gore picked Lieberman, I thought that was a political masterstroke. I do
not think it was appreciated at first what that meant. They put him down in south
Florida and he rallied the troops. Even if he had picked Bob Graham [Florida
governor, 1979-1987], they would not have turned out the way they did for
P: Also, money-raising.
C: On the Bush side, you could dissect that campaign. While they talked about all
the mistakes on the Gore side, there were colossal mistakes made on the Bush
side too. I think they got a little arrogant, they thought they were going to win.
P: Particularly in the beginning.
C: Right. They could do just about anything they wanted to, and it came back to
P: David Broder [journalist, Pulitzer Prize winner, 1973] or somebody like that said
that the real issue is that the Bush people worked harder and more diligently for
Bush. There was not a lot of passion for Gore. Gore had so much to overcome
in a state where the Secretary of State was supposedly partisan and his brother
was governor. It really was kind of an uphill battle all the way for Gore. I think
there is quite a bit of truth in that.
C: I think so too.
P: Regardless of the legal issues, just trying to overcome all of that. What about the
handling of all of this by the media do you think the media was objective and
thorough of its handling of the legal issues and other developments?
C: With the exception of this preoccupation with judges' voter registration, I thought
on the legal side it was pretty good. On the political side, [I felt] somewhat
different. Obviously this was the biggest story at the time, [but] there were some
other things going on. I do not know if this required twenty-four hours a day,
twenty-four-seven. There were some days that just nothing happened, then you
are sort of trying to make up stuff. There were a few times I thought there were
some stories that went too far. There was one that I think CNN ran. Fortunately
[they] ran it real late at night where they were trying to portray Tallahassee as
this little company town. You have got to hire the right people, it is still a good-
old-boy network. We are from out of town and this is still the old South and
things have not really changed here.
P: Also there was one rumor that Jeb Bush was having an affair with Katherine
Harris those things seem to be a little off.
C: CNN took me aside one afternoon and said, we have got a report that one of the
national news magazines, if they can find another source, is going to run a story
that Jeb Bush and Katherine Harris are having an affair. Have you heard
anything about this? I said, you have got to be kidding me. First of all, Jeb is not
that stupid, and had it been going on, it would have been already out. I went to
have dinner that night with a friend of mine in Tallahassee who is a lobbyist. We
were sitting there at the restaurant, [and] I said, there is a rumor going around
and I wanted to see if you had heard anything about it. She said, oh, you mean
the one about Jeb and Katherine having an affair. She said, we have been
hearing that one for months. No one believes it.
P: Discuss your assessment of the legislative reforms of election law. We
mentioned a couple of things that you thought should have been done that were
not done. One of the things was not done, that the election supervisors should
be non-partisan, but they did not get that through.
C: I thought the election reform act that passed in 2000 was a great piece of work. I
thought the legislature did a good job. They really only got political at one part,
when they eliminated the second primary for the upcoming election and also
made it more difficult for out-of-state contributions to count toward public
financing. Other than that, it looked like a real bipartisan effort.
P: But they did not deal with felons.
C: They did not deal with felons. I believe there is a perception that Republicans
think they will vote Democratic, so they do not want to open up a whole new host
of voters. A couple of things they did not address that I wish they would. One
was supervisors of elections should be non-partisan. That is really just for
perception purposes. The other thing I would like them to look at [is] changing
the composition of the canvassing boards and perhaps having a more permanent
type of canvassing boards. Right now, the canvassing boards can kind of pop up
for each election, then disappear. In the case of the county judges, the most
junior county judge usually gets the canvassing board appointment, because
none of the others want to do it. Then you get a county commissioner. If you
look at all of the controversial canvassing boards, it was the county
commissioner who was always sort of the point of attack. The supervisor of
elections, he or she is supposed to be administering the election. To me, the
canvassing board should be separate and sort of overseeing that.
P: Plus on many occasions, they are running for office therefore cannot serve on
that board, and then you get somebody else who probably does not have
C: I suggested to the election reform commission that the canvassing boards be
reconstituted to take the county commissioner off. That is really a throwback to
when counties served as true political subdivisions of the state and they were
basically carrying out state government functions. Either put another county
judge on there or provide for some appointment or a way of getting someone
neutral on there and try to make them where they stay in office for a certain
period of time.
P: Should they be appointed or elected?
C: Probably appointed. If you make them elected, you are just doubling the
problem. What I did not figure out is who appoints [them]. Is it the board of
county commissioners? Is it the supervisor, who of course always appoints the
one who will make the supervisor look good? Or is it the governor? Maybe it
should be that the supervisor appoints one, county commission appoints one,
governor appoints one.
P: That would be more balanced. What specific changes were most important?
Obviously, we got rid of the punch-card machines. There is going to be a
standardized list of voters across the state, is that right? What else was
important in the reforms?
C: I think probably the thing that will make the biggest difference, [is that] they finally
appropriated some money. That has been the biggest problem all along, and
now there is some money to buy equipment, to train workers, and to educate
voters. Other than that, they cleaned up the recount procedure some though it
still left a lot to rule-making. They now have finally addressed what to do in the
case of a state-wide or multi-county office.
P: They have also determined now this is not the legislature, but the supervisor of
elections about over-votes. Is that a recommendation or is that a standard?
C: That is a recommendation they have made to be included in the standard in
counting from the intent.
P: The legislature would still have to deal with that.
C: No, that is rule-making by the Division. That is one thing where the legislature
did abrogate somewhat. They left a lot of the rule-making by the Division. They
are in the process of doing that now. They will have their rule hearings the end
of this month. They have just published the rules that they are proposing. That
also means there is a little bit more flexibility. Let us say, between the first
primary and the general election in 2002, they find out that the rules do not work.
They can go in and fix them quickly versus having to convene a special session
of the legislature or just try to muddle through.
P: That is better. It seems to me a critical issue is going to be now, the elimination
of the second primary. Was that deliberately done to hurt the Democrats?
C: You certainly can draw that impression. Some of the legislative leadership is
trying to claim it was a compromise because it has only been eliminated once,
but it just happens to be the gubernatorial election. What I would have preferred
seeing, in fact, what I believe the election reform commission recommended,
[and this was] the only recommendation that was not followed, they said, keep
the second primary, but move the first primary to the spring, make the second
primary where the first primary is now. A lot of the problems with absentee votes
and overseas voting and even with the printing of the ballots all stems from that
condensed election cycle that we have. Trying to get three elections in two
P: That is what all the elections supervisors complain about. You really do not have
C: Under the previous system, you were making your ballot up on the day after each
of the two primary elections when your returns may not even be final yet.
P: The Civil Rights Commission concluded that although Governor Bush and
Secretary of State Harris were not guilty of a conspiracy, they did not provide
adequate leadership and that there were numerous examples of African-
Americans being denied the franchise. The term they use is that they were
C: On the disenfranchisement issue, there was anecdotal evidence, no indication
that anything was necessarily a pattern. You had some first-time voters, they
may have felt intimidated by the process and the system. To some extent, we
had the voter-registration roll problems. A whole bunch of things came together
at once. In terms of the role of the governor and the secretary of state, there is
really not a role for the governor here. I think it was probably best that he did
stay out of it. In terms of the secretary of state, it seemed to me more could have
been done before the election. No one can predict that something is going to be
like this. It was clear several weeks out that we were going to have a close one.
It did not seem to me from what I have seen, from talking to supervisors, the
alerts did not go out, the advisories did not go out. The budget of the Division of
Elections has been cut. If I understood Clay [Roberts] correctly when I talked to
him, in terms of what I had in 1978 and what he has now, he has not even kept
up with inflation and he has got fewer employees.
P: The arguments of the commission findings was black voters were ten times more
likely than white voters to have their ballots rejected. 14.4% of black voters had
their ballots rejected. Abigail Thernstrom [commissioner, U.S. Civil Rights
Commission], of course, argued against that. She said, as you did, that the use
of the term disenfranchisement badly overstates what happened; it was kind of a
toxic word that was fair enough with the grandfather clause, but to say that is the
case here and to say it was deliberate was really stretching the facts. Just
because there was a state patrol roadblock, it turns out that the majority of
people stopped were white, not black, but they were intimidated. This is Abigail
Thernstrom saying, they do not want to admit that these were first-time voters
who made mistakes. If you make a mistake and your vote is not counted, you
disenfranchise yourself. It is not a conspiracy to keep you from voting. They
said, a lot of times we tried to get to the supervisor and the line was busy. Well,
was it deliberately busy? It was busy for everybody. She was a very sharp critic
of this report.
C: It seemed to me that what we did learn is that we have got to do a better job of
making sure that all minority voters are allowed to vote and have their votes
counted. As we make elections more complicated, as we lengthen the ballot, as
we get more high-tech, we are going to find there are going to be some
problems. We just have to recognize that you have got some voters that are not
well-educated, that are not informed, that have gone to the polls and may not
know exactly what they are supposed to be doing. It is more likely that those
voters will not properly cast their ballot. We have got to fix that. That is why I am
glad there is money in there for voter education. But we have got to make sure
that voter education money is spent in the right place. For example, in Miami-
Dade County, you do not need to be spending money down in Kendall or Coral
Gables on voter education, [you should spend] some, but you need to be
spending it in Overtown, Liberty City, Little Haiti, places where those people just
do not know what to do if they are going to go vote.
P: What about the arguments that in places like Little Haiti, there was not a ballot in
Haitian or French?
C: The county has not been required to do so, it has not been triggered under the
minority-language requirement of the Voting Rights Act. It does not hit the
threshold. Their recourse is to go to Congress and lower the threshold. What
county official is going to take the time to print those ballots at that expense if you
are not required to do so?
[End of side C1]
P: What is your view of a provisional ballot?
C: I think it is a good idea. What it does is it gets the controversy out of the polling
place and puts it in front of the canvassing board. What will happen, though, if
you have another close election like this, those provisional ballots are going to be
scrutinized just like the overseas ballots were. Also, at least at the polling place,
you have got the voter there, then when you take the provisional ballot back to
the canvassing board, that voter is not there anymore. That voter's vote could be
thrown out and he or she is not there to argue his or her case. It is much
preferably to the previous system which just said you cannot vote.
P: I have talked to a couple of black legislators and when they were trying to
educate the voters, they made this list of voter's rights and a list of voter's
responsibilities. A couple of the voter's responsibilities were to respect the
privacy of the other voters, treat precinct workers with courtesy, ask questions
when confused. A lot of African-Americans believe that this list of responsibilities
is intimidating, that they are trying to prevent them from voting.
C: There is a lawsuit challenging it on the grounds that it is a pseudo-literacy test.
P: By printing these, they are, in effect, trying to eliminate the black voters.
C: I think that is a clear example of the cultural divide we still have. Something that
you and I will read and say, what is wrong with that? Surely that is what we have
been taught forever, you should be informed when you go into the polling place.
To someone else, it is interpreted very differently. To me, it is almost like look at
the polls that said, how many whites thought O.J. Simpson was guilty, how many
blacks said he was guilty. Same two groups heard the same trial, but it was a
different perception [in] the way the information was processed.
P: They also mentioned this at one of the polling places there was a state trooper
there. For us, we would say that is fine. They would say, what is he doing here?
Is he trying to keep us from voting? It is a totally different take on something like
that. Let me ask you some overall broad questions. How has this experience
changed your life?
C: Well, I am recognized in airports more. It was an experience that probably will
not be duplicated between, just the going-through an election, a historical event
like that, and then to be on national and international television.
P: This was all over the world.
C: I was getting e-mails from people I met in Norway that saw me on TV. I heard
from people I had not heard from in years and made a lot of friends at CNN. I
have much greater appreciation for the news media. They still [have] some
things they need to correct, but I am very impressed with the responsibility they
have in trying to get stuff out quickly and get it out correctly. [There is] a lot of
competition in that industry. I think they also learned some stuff from it. I ended
up changing law firms and doing things just a lot differently.
P: Are you glad you had the opportunity to do this?
C: Certainly. It was a once-in-a-lifetime experience. There are times, [when] I go
back and look at these photos and say, did I really do that? Was I really sitting
there for that long a time?
P: There are a lot of people like Theresa LePore, in effect, her life has been ruined.
She is still traumatized by these events. So, there has obviously been some
negative impact for certain individuals involved in this, and obviously, some
positive impact for others. Is there anything that we have not covered in the
election that you would like to talk about?
C: One of the things I hope comes out of this is that there is a new focus on election
law and election administration. This has been an area that I have loved [since I
was] back [in] high school. In college, I wrote an Election Code for the University
of Florida student government. I have been involved in it for some time. I really
want to see election law recognized as something that is not just political, but is
an area of the law just like any other. In fact, it is probably as important as any,
because if what you are saying that you cherish the most is a democracy, well, it
starts with elections. With what we are going through today in terms of
international incidents and all, still staying focused on what we should have
learned from the 2000 election is important.
I give a lot of speeches to League of Women Voters and Rotaries. In fact, I have
got one coming up this Thursday. Before September 11 [2001, date of terrorist
attacks on the World Trade Center and the Pentagon], it was much more
lighthearted. I was telling the story behind the camera, and the little anecdotes.
After [September] 11, I started thinking, how do I describe this now? Is there a
way to put it in context? To a lot of people, they do not want to think about the
election. What I tell them, I say, we need to pay attention to it more now than
ever, because it was a defining moment in American political history. It was
something that taught us a lot as a democracy, our flaws and also how we can
still prevail. It also showed that we can change a government and do it in a way
that we do not have troops in the streets. There was never any hint of that and
that we should cherish that. As a result, we should put more resources into it, we
should do it better, and not make it be the step-child of the American legal
P: There is going to be national reform, not just in Florida.
C: Definitely. There are forty-nine other states that could have been there instead of
Florida. Ron Brownstein is a political reporter with the L.A. Times, he is on
CNN a lot. Ron hung around us with CNN a good bit in Tallahassee. He called
me up maybe in March, he was back in Florida, he was calling to ask some
questions about things. He said, I am doing a piece, kind of a follow-up to the
election, he told me when it was going to be on, and he said, why don't you
watch it. Sure enough, I watched it on CNN. He is talking about the election-
reform legislation and some of the other stuff. The census data is now coming
out. If you look at census data, political-party alignments, he said, regardless of
who the two candidates are for president in the year 2004, everything indicates it
is going to come down to one state. Guess which one? He says it is going to be
I do not know if since September 11 that has changed. It remains to be seen.
He still thinks Florida is the bellwether state. I have seen some commentators
that have said, throughout the 1960s, 1970s, 1980s, and into the beginning of the
1990s, California was the lead state. Everyone looked at what California [was]
doing, that was the trendsetter. If you start looking at stuff from about the mid-
1990s to now, it is Florida. We are in the front on so many different issues, some
good, some bad. Remember California had bad as well as good. Even now, in
terms of these incidents, it is Florida that is there. It is like we have moved to
being the trendsetter state, for good or for bad.
P: One issue that has emerged as I have talked with these county supervisors is
that it is important because now people actually know what they do and who they
are. Before that, they had been literally invisible. Most people had no idea what
their job entailed.
C: For many years, that was a glorified clerk's job. It did not have any real training.
It was a bunch of little old ladies that sat around in an office and would pass out
voter registration cards. Now, you have got to be computer literate, you are
dealing with huge record databases. It is a very sophisticated position now.
P: I went to Pam lorio's [supervisor of elections, Hillsborough County] office and I
was stunned at the number of people and the records, the hundreds of
thousands of voters and lots of elections. You do not think about local elections
as well as national elections. Are there any other stories, events, people, or
incidents that you would recall that are particularly outstanding?
C: When I was in West Palm Beach just before Thanksgiving, they had me standing
up getting ready to do some Q&A with the studio in Atlanta. Just before they
came to us is when the bulletin came out that [Dick] Cheney [Vice President of
the U.S., 2001-present] was in the hospital and they were about to have a press
conference. They told me to stand there and wait. They were doing the press
conference. I am miked up, I can hear it, the other people around me cannot. All
they can do is see the monitor. I had forgotten that my mike was still live. They
are talking about the procedure they did on Cheney and I said to the film crew, I
said, I had that same procedure, I had a heart incident [in] December of 1998 in
Colorado and went to the hospital and they did the exact same thing they are
doing for Cheney. At about that time, this voice comes over and says, David, this
is Atlanta, would you mind talking about that on the air? So after the press
conference they came to me and said, not only does David Cardwell know
something about election law, he knows about heart procedure. Of course, they
wanted to know how long my recovery period was. Cheney was saying he was
going to be back in a week, I stayed home a month. I said, I sure hope my law
partners are not watching this.
P: On that note, I want to end the interview and I want to thank you very much for
your time, David.
C: Glad to do it.
[End of the interview.]