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Dexter Douglass begins by describing how he was initially contacted by Mitchell Berger
to join Al Gore's legal team (1). He believes the lawsuit should been conducted under
the contest rather than protest phase, and contends that this advice was not followed by
Gore for PR reasons (pages 2-3, 5-6, 11). He goes on to mention the influence of
Ralph Nadar and the politicization of the counting (4). Mr. Douglass argues that Gore
should have continued pressuring Bush to recount the entire state of Florida (7).
He notes that Gore votes were picked up in Republican counties in the recount (pages
8-9). He assess the difficulty of the butterfly ballot case and its lack of legal remedy
(10). The equal protection argument is contrasted with the argument of the election as
a state issue, as per the Middlebrooks' ruling (12). Mr. Douglass maintains that
Katherine Harris did not act neutrally as Secretary of State (pages 13-14, 15, 19).
Mr. Douglass identifies the use of political figures in the PR battle, especially on the
issue of military ballots (pages 16-18). He speculates on Jeb Bush's activities (20),
presents David Boies' efficacy as lawyer (21), and analyzes arguments in the first
Florida Supreme Court case (23). Inaccurate reporting by the Wall Street Journal
regarding his connection to the Florida justices is cited as a factor preventing him from
giving oral arguments in that case (24). He also addresses the issue of intimidating
crowds in Miami-Dade County (26) and the debacles in Seminole and Martin Counties
Mr. Douglass explains the law regarding the safe harbor date and the role of the
legislative branch in elections (pages 29-30). He recalls the slow case before Judge
Sauls, his decision, and his refusal to count ballots (pages 31-33, 35). He describes his
daily activities, including media appearances and birthing calves at home (pages 33-34).
He relates his strategic discussions with David Boies for the U.S. Supreme Court oral
argument (pages 37, 43).
Mr. Douglass assess the Florida Supreme Court 4-3 decision and finds the court to be
politically neutral (pages 38-42). He suggests that the court faced a catch-22 over the
issue of setting standards for counting votes (45). He analyzes the dissents in the final
Bush v. Gore decision (pages 46-48) and compares the election results to that of the
Hayes-Tilden election in 1876 (49).
He addresses the Republican attitude (51) and the absence of Bob Butterworth and Bob
Graham during the events (52). He examines the felon list, the report by the Civil
Rights Commission, and poorly designed ballots (53). The merits of the Election
Reform Act are debated (54-57). He relates his conversation with Gore about ending
the legal battles after the final U.S. Supreme Court decision (58). He again mentions
his belief that Gore's concern with public relations and many advisors may have cost
him the election (pages 59, 64-65). He concludes with recollections of former election
campaigns with friend, Lawton Chiles (60-62).
Interviewee: Dexter Douglass
Interviewer: Julian Pleasants
Date: October 30, 2001
P: This is Julian Pleasants and I am in Tallahassee, Florida. It is October 30, 2001
and I am talking with Dexter Douglass. Just for the record, what was your official
position with the Al Gore [unsuccessful Democratic presidential candidate, 2000;
U.S. Vice President, 1993-2001; U.S. Senator from Tennessee, 1985-1993]
D: I was engaged as the chief Florida counsel in connection with the election
P: Who contacted you?
D: I was first contacted by Mitchell Berger, who is the lawyer from Ft. Lauderdale
who is very close to Vice-President Gore. He had worked for him, he had known
his family growing up, had been a long-time friend, and is a very outstanding
lawyer from south Florida.
P: When you accepted this role, did you have any idea of the extraordinary time and
D: Yes, I do not think there was any question about it. Originally, I told him I did not
want to do it. I felt that I just really did not want to devote the time to it that it was
going to take. I had been in some litigation involving elections before and they
are not very satisfactory from a lawyer's standpoint, [on] either side.
P: When you started, did they specifically explain to you what they wanted your role
D: I am not sure. I think it just sort of evolved because after I agreed to do it, the
next day we filed a suit and I thought the hearing would be a day or so later. I
got a call from Barry Richard [attorney for George W. Bush, U.S. President,
2001-present; Texas governor, 1995-2001], who I knew was on the other side,
he said, look we got a hearing at 1:00 today. This was about 10:30 in the
morning. I said, I had it down that we would do it tomorrow when they called, I
thought they said it was Thursday. He said, no it is at 1:00 today. He said, I did
not think you were aware of it, so here we go. So we go over and have the first
hearing before Judge [Terry] Lewis [Leon County Circuit Court Judge, 1988-
P: What was the basis of that first case?
D: I think the first issue was that we were urging the court to extend the time from
the very beginning to allow the protest to be completed in the counties that were
involved, which they had selected before I got in the suit. They had selected the
remedy before I got in the suit to [file under] the protest statute [102.166] in
Dade, Broward, Palm Beach, and Volusia Counties. They had concluded based
on the returns and the votes that had been thrown out and not counted, that if
those were counted properly that they would have enough votes to put Vice-
President Gore in the lead and therefore to win the election. After the first
hearing, my first reaction was that I thought that we were using the wrong
remedy. I thought we should go, and I think most other people that had dealt
with this [thought], that we should go under [statute 102.168], [and] let them go
ahead and count the votes.
P: This is the contest.
D: Right. We would have a contest, when that occurred, we could file it, then we
would be in court and we would have the entire proceeding under the jurisdiction
of a judge here.
P: That would have probably been Judge Terry Lewis.
D: We could have amended our complaint then, [and] later on as it went along, he
invited us to do that. When he finally ruled, that while we were correct that she
could extend the time, she being [Katherine] Harris [Florida Secretary of State,
1998-present], it was discretionary. She had the right to use her discretion and
then he would review it to see if he thought it met the standard of an abuse of
discretion. He, in effect, told us that he thought our proper remedy was a contest
and invited us to do that. He did that after the Supreme Court sent it back to him,
telling him to review it on that basis. He originally just did not review it.
P: He did not think it mattered since he figured you could always contest it.
D: I cannot tell you what his thinking was, but I would assume that he probably
reached the same conclusion that I did, and others, I was not the only one. Mark
Herron who is the Democratic Party lawyer, [is] probably as knowledgeable in the
area of Florida election law as anybody, had written a memo and had taken that
position. I know, having talked to Jon Mills who is a good friend of mine, dean of
the [University of Florida] law school, that Jon agreed. Mitchell Berger did. All of
the Florida lawyers, I think, did, [including] John Newton, who was doing a lot of
the writing and grunt work in the office. When I, maybe early on, maybe right
after I was employed, Secretary [Warren] Christopher [U.S. Secretary of State,
1993] and William Daley [campaign manager for Al Gore, 2000 election] asked
me to go with them over to her office before we filed a suit. Of course, I knew
Harris and knew everybody over there. As a matter of fact, I had recommended
to Harris my assistant [Suellen Cane, who] I had when I was general counsel to
Governor [Lawton] Chiles [Florida governor 1991-1998 (died in office); U.S.
Senator from Florida, 1971-1989] and when I was chairman of the constitutional
revision commission. [She is] a very capable person who could handle anything
and was ideal for somebody in a cabinet position to be their major administrative
person, I had recommended her to Harris. She had interviewed thirty or forty
[people] and she hired her immediately when she interviewed her. She is still
there. Also, she hired Debbie Kearney who was my deputy general counsel in
the governor's office. I took her and she was general counsel for the CRC
[constitutional revision commission]. There were two or three secretaries there
that had worked in the general counsel's office. I knew everybody over there in
those positions. I went, and that was a waste of time, a photo-op, whatever. I do
remember, I thought Christopher was pretty cool. I liked him. We came out and
they said, do you think the fact that Katherine Harris [Florida Secretary of State,
1998-present] was one of the co-chairman in Florida for Governor [George] Bush
[Texas governor] would have any effect on what she is doing. He said, you will
just have to let the facts speak for themselves. I thought that was a nice way of
saying, you betcha. Anyway, we came back and filed the suit. Actually, the team
leader was Ron Klain. Ron had been chief of staff to Vice-President Gore, he
had been general counsel to the judiciary committee in the Senate, he had been
in the White House where he reviewed judicial appointments, he was a law
review editor from Harvard, very bright, very capable lawyer. He was the team
leader at that point and there were others there of course, but he was the major
person dealing directly with the vice-president and with whoever was the brain
trust in Washington.
P: Who do you think made that decision to continue the protest?
D: I think Gore did, ultimately. He may have had a lot of advice. My impression,
whether it is correct or not, was that Daley agreed with us [and he was not
optimistic about success.]. Anybody that had ever been in an election contest
[was] concerned that the protest would be a way [for him to overturn] the election
without "contesting" the election, so that it would not appear that Bush had been
declared the winner in Florida. He [Gore] therefore was going to court to
overthrow it. They put, obviously, a lot of emphasis on this from a public
relations standpoint. They did not want [it] to appear that we were trying to take
the election away from Bush when he had actually already been counted in. The
position that most of us took, that had the other view, was that this was not the
way to handle a case because no matter what happened, if you contested the
election, everybody thought you were doing that already in the protest. I do not
think anybody caught the nuance of that. The nuance they were thinking about
was when Katherine Harris would get up and say, I hereby declare George Bush
the winner, and then we would go to court and say no, you are not. I think they
were putting a lot of emphasis on that, which I think just does not make sense,
because in an election contest, it does not matter what you call it. If you are
behind when you start counting the votes, everybody says, well, he is trying to
overturn [the election]. Your people all are saying they stole it, and their people
are all saying you are trying to steal it they use all this kind of language. When
it is over, whoever wins is president. As it turned out, here is George Bush who
is president, who [received] a minority [of the votes], he did not even get a
plurality of the votes, Gore did. And [Bush] is president. Now he acts like he has
got a mandate and the public has forgotten how he got in, [and] the fact that he
did not really win the election at all, if losing the popular vote is a mandate. They
seem to take that attitude we have got a mandate to reinvent government by
demolishing it because the public wanted it. If you figure the reason Gore lost
ultimately was because he had [Ralph] Nader [Green Party Presidential
Candidate, 2000] in the race, that is not exactly a right-wing, tear-the-
government-down guy, you know? If you counted the votes on the basis of the
philosophy of the candidates, he not only lost, he lost big-time. Probably the one
person who elected Bush was Nader, the votes that he got pretty clearly deprived
Gore of winning, in other states too, I think.
P: He got enough votes in Alachua County to change the election.
D: Well, that is right. I think he had 95,000 they counted [for] him state-wide.
P: One issue that comes up over and over again and almost everybody I talk to
says the crucial factor in the beginning was that Bush stayed in the lead.
D: That was the political view. The legal view should have been, we are behind, let
us get in the lead, and let us get there the way that would be the most efficient
and the most well-supervised way. The real thing that blew this thing up is when
they allowed the Republicans to send all of these operatives in from Congress,
from New York, some hoods that call themselves lawyers and go down there and
act like everybody in Miami was doing it. They caused the protest to be a joke.
You have got the wrong judge in Palm Beach County. You have got a guy that
was a [Jeb] Bush appointee who was playing to the world, [that] he was this
intellectual sort of guy that was ruling this way. What he was doing [was] just
making sure the votes did not get counted.
P: This is Judge Charles Burton [Judge, County Court, Palm Beach County] you are
D: Yes. On the other hand, you had pretty good judges in the other cases. They
were more even-handed. Of course, the real reason this protest would not work
was [that] they got all hung up on how to count the under-votes. If we had been
in a contest and we had done it the day we could have, which was the day after
P: That would have been November 14.
D: We would have had a month to count the entire state and we could have done it
the way we were about to do it, by having a judge supervise it [and] rule on the
issue of how to count these machine votes. That was forty-two percent of the
vote, everybody forgets that the other sixty percent were optical [scan] and one
county, Union, was a paper ballot probably the most accurate count was at
P: Actually, it was.
D: When you got through, I do not think there was much doubt about that. Here
they were arguing machines were more accurate than people. You come back
and say, is that why you take your car to the shop, is that why it breaks down on
you, is that why it runs out of gas, why do airplanes crash? Human error,
sometimes, but [it is] nonsense about machines [being] more accurate than
people; they obviously are not. That became the big issue, and then the court
would not rule in the first instance. We sought a ruling that would have adopted
the Texas standard which would have put Gore in the lead, unquestionably.
P: That would be counting dimples?
D: Yes, indeed. The Texas statute which George Bush signed into law, lays it out
step-by-step. In fact, the lawyer that was arguing for Bush in that first argument,
they ask him, they said, what about the Texas rule? He said, gee, I do not know
what that is. He disappeared, Carven, I think was his name. He was sweating,
that was a very enjoyable time to be on the other side.
P: One of the puzzles was that the Gore team hired all these Florida lawyers, you
and Mark Herron and others who are very knowledgeable about Florida law, and
when you made a recommendation, ignored it.
D: I do not know that they ignored it, but they did not accept it. That is their right.
We are just lawyers, we do not call the shots ultimately, when it is a policy
decision. I think the thing that we kept coming back to, and we did this all
through, I think we recommended that they contest Seminole [County's] vote,
[that they] file a contest on it, even after all of this. [We recommended that they]
file a contest on them, let Gore file a global contest [and] contest the entire state.
In the first instance, if we had contested, the judge would have probably required
a recount of all the over-votes and under-votes. Where Gore really lost votes was
on the over-votes. I think everybody was aware of that because in Jacksonville
they essentially had the over-votes thrown out in the black precincts, which were
heavily for Gore. That was a hard county to deal with because they were
controlled by the Republicans and by the secretary of state. You just could not
get anywhere in those counties, except with a judge.
P: I have talked to several election supervisors, and there is no question that if you
use intent of the voter as a standard, you could have determined that they may
have circled Gore, not filled in the bubble, or written Gore in that would have
been a valid vote.
D: [There was] a lot of that. Over in Gadsden County where they recounted them
the night of the election, they did not recount, they went through them. The over-
votes, Gore added 100 votes in that county, just over here. That was an optical-
[scan] county, of course. That was true in a lot of others. It turned out in Lake
County, Gore had an extra 280 [vote] margin that they did not even count on the
optical votes somehow or another it was excluded from the count. You cannot
say it was dishonest, you certainly cannot say it was honest. You just say they
did not do it. The same [thing happened] over in Nassau County. They had
recounted and given Gore an extra hundred votes or so [51 votes]. When we got
to it, they said, they did not have a proper meeting, [but] they were advised by
the secretary of state's office [that] they did not have to [accept the recount].
They had a woman sitting there who was [a candidate] in the election, which is
contrary to the statutes, she was sitting on the board. [Judge Sanders] Sauls
[Judge, Leon County Circuit Court] was going to rule against [Gore] on
everything, [he said] this poor old lady [who] was the supervisor was not
dishonest, therefore we do not [rule against the amended count]. We do not
follow the law unless they are dishonest, which is kind of ridiculous. However, if
we had been in a contest, that would not have been singled out, it would have
been dealt with on the [same] basis on all the rest of the [cases].
P: The judge would have ordered them to count those votes.
D: Correct. I think probably, if we had a contest, those votes would have been
properly counted, and I think probably Gore would have gotten those votes.
What they did is just left out a bunch of votes.
P: No one can tell who would have gotten votes on the recount.
D: I think in that county [Nassau], the margin was so big, Bush would have gotten
them. I have always thought that, but nobody would argue that point, so I wound
up having to cross-examine this poor old woman and have them call me bad
names because nobody would do it. It did not bother me too much because the
lawyer for Nassau County was a very good lawyer and he understood what was
going on. He and I stipulated to the facts. I do not think Barry [Richard, attorney
for George W. Bush in 2000 election] necessarily did it, but [Joseph] Klock
[attorney representing Katherine Harris during 2000 election] [said,] we [have] to
have her up there, we [have] to show that they are just attacking this poor old
lady to do this.
P: This is Joe Klock representing Katherine Harris?
D: Who is supposed to be neutral, who was about as neutral as [Adolf] Hitler
[chancellor of Germany, 1933-1945] when he was bombing Moscow. Anyway,
he said something, I forgot what he called me, [said] that I was crucifying this
woman. I said, your honor, [and the judge] said, wait a minute. Even [Judge]
Sauls called him down on that one. Barry said the same thing properly. He said,
to question this lady who is doing the best she can, he went to great lengths,
which is the same thing saying he crucified [her], I guess. Barry is a good
lawyer, Klock is not. You can put that on the record.
P: At one point, Gore publicly said that if Bush and Gore stop contesting the legal
issues, I will agree to count all the votes in the state.
D: Count all the votes, recount all the votes if you will agree to it, and whoever wins
will win, and then that is the last we heard of it. I was in [on] the conference call
when that decision was made. He wanted to know what we thought. I said,
make that offer, make that offer. I said, they are not going to take it because
they will not let you recount all the votes, but make the offer and stick with it.
That was about the only time I got to really tell Gore directly at that point
something that I thought should have been done. That would have gotten us
back to the point we were trying to get to and he did that. When Bush said no,
whatever his advisors said, the [Gore team] dropped it.
P: Should they have pursued that?
G: Absolutely, I think their issue was [that] he was contesting. [He was] to get up
every time somebody got up, say, look we have offered to recount all these votes
and they will not do it because they know they have lost, and just hammer that in
like [the Republicans] did with the issue they had. They were masters at saying
the same thing over and over, even though it was totally off-the-wall, some of it.
The worst exhibition in the whole thing was by Jim Baker [U.S. Secretary of
State, 1989-1992; campaign manager for President George Bush, 1988], who
should have known better. He got up and made the personal attack on the
Florida Supreme Court. I think if he [had been] acting as a lawyer, he would
certainly have been disciplined for that because he was clearly out-of-line.
P: I noticed that Baker was very upset and said the Florida Supreme Court decision
[4-3 vote] was a disgrace and that a court should not decide elections.
D: Then [he turned] around and made sure his [U.S. Supreme Court] court decided
the election. I have a feeling they already knew they had the five votes, the way
it turned out, [but] that is guessing, of course. One of the Republicans who I
have been speaking with [about] some of these things, he says, when a man or
woman is appointed to the bench, they take their views with them. Of course,
that is true. They see it differently because of their views. That is a nice way of
saying that if you wanted the conservatives in, you found a way to put them in.
Yet, that is true. I guess we have to accept that to some extent, but then you
have a group of judges that are trying to follow the law, and you have some that
are not, it gets to be a problem. The same people who spent most of my lifetime
talking about an activist court doing things that were beyond the law were the
people that were saying what a wonderful, courageous legal decision, which just
goes to show you that politicians have no interest in fairness in the courts. What
they are interested in is their own decision. That is true with most litigants,
truthfully, and probably me too for that matter, but I learned early on that you
keep that in the [privacy of your] office. When you think somebody really did
something that was totally wrong, you have got a right to bitch about it one time
and you have a right to appeal it if you can, and you have a right to say you do
not agree with the opinion, but you do not have a right to say they did it because
they were crooks or they were political whores or whatever.
P: Some people did say that.
D: They did and there was room to say it, but there was not room for a lawyer to say
P: I want to talk about these court decisions a little bit later if I can. One of the
issues that comes up from the Republicans, is that they keep accusing the
Democrats of saying they want to count all the votes, and then they say they just
want to count them in the counties in which Gore did well.
D: If I had been them, I would have been saying that too. We were saying, we just
want to count the votes [and] count them all. In fact, when they did count, we
were picking up votes in Bush counties. We picked up fifty-eight [votes] out of
eleven counties before they shut us down, Gore had picked up fifty-eight votes
and all of those counties were Bush counties. They were not big counties, but
we picked them up.
P: When The Miami Herald did their analysis...
D: Their thing is fishy.
P: Nonetheless, they and the New York Times too, found the same thing that
where you least expected votes in Bush counties was where Gore was
D: I think some people thought that, in our group. I tended to think it because the
votes [that] were excluded were [votes of] blacks or old people. The most
mistake-prone votes that were thrown out were made by people that were not
aligned with big oil and big tobacco, they were concerned with their civil rights or
social security or this sort of thing. Those votes were primarily going to Gore. It
did not matter what county they were in, it might have been Okaloosa County for
example, which used to be the most Democratic county in the state, it is now the
most Republican. It is where I grew up, my whole family if they had counted
them there, there would have been a slight pick-up for Gore.
Leaving the subject, the reason all of my family and other friends and people I
grew up with [switched to the Republican Party], [those] I grew up [with] in the
1930s and 1940s here and over there, they were adamantly against what the
Democrats were doing in race [relations], that was the primary thing, [but also] in
feminist things, there was a lot of Bible-belt philosophy there. Then when [Bill]
Clinton [U.S. President, 1993-2001] put the gays in the military, that was when
they switched. The whole southern white vote is predicated on what would have
to be the traditional views and the views of my family. The views of my
grandfathers, great-grandfathers, my father, my mother, is that the blacks should
not be running the government, that they were not as a group, good people.
Individually, they loved them that was the old southern thing. That was how the
Republicans won, capitalizing without having to, on the race issue in these
places. When you got into those counties, the black [votes were] the ones that
[were] usually [thrown out], and they were for Democrats. When I ran for
Congress in 1962, there were eight blacks registered in Gadsden County and the
population was sixty-five percent [black].
P: That still is the only majority-black county.
D: I think Monticello, Jefferson is close. If it is not, it was. I do not know whether it
was in this last census or not, but it was a slight black majority too. They started
voting here probably in the war or before, because [with Florida] A&M
[University], more of them voted. Most of the blacks were Republicans when I
grew up [if] they got to vote.
P: Let me ask you about this controversial butterfly ballot. In the beginning, the
initial lawsuits were not from the Gore campaign, they were local. Were they
supported by the Gore campaign?
D: No. I looked at that too. I think a lot of us did. The problem with the butterfly-
ballot cases is [that to have a case] you had to object before the election. The
ballot had been approved by the local Democratic people, and once that occurs, I
think the issue of the ballot being contested, by the Democrats particularly, was a
loser. The statute though, was probably violated, but apparently it had been
accepted in other places. You have an opportunity to object to the ballot and it
was not done. After the election, everybody said [it] was terrible, [but] it should
have been done before. We were in a different legal position there. I think
someone else had to contest that other than Gore.
P: Was that a waste of time?
D: No, it was not a waste of time from a political standpoint it was clear that [Pat]
Buchanan [unsuccessful presidential candidate, 1992, 1996, 2000] got more
Jewish votes than he did in the whole world, in Palm Beach County. It was clear
they were Gore votes. From the standpoint of saying who won, Gore can say,
and Buchanan said, he did not get all those votes.
P: What is the legal remedy for that? If you look at statistics in that county, ninety-
six percent of the people voted correctly, so it is not a malfunction of the
D: It is not a malfunction of the ballot.
P: Is there a legal case there?
D: I do not think we could have won it, frankly. The fact that that occurred is, so-be-
it. If you objected to it before the election and they went ahead with it, whoever
objected to it would have had a suit to contest it and make them re-do it. The
only remedy is to re-vote.
P: Can you do that?
D: You could not in this election. You had to have the re-vote done before
December 12 to get into the safe-harbor deal. When you looked at it, there was
just no way that you could effectively do anything with that. It was great political
fodder and it was really an illegal ballot, but so what? You were not going to get
any remedy that could reach the problem.
P: You could not disenfranchise ninety-six percent of the people to take care of the
D: Even more than that, you could have argued you disenfranchised the whole
state, because if they are going to vote over, should not everybody else vote
over? I thought from the start it was wrong, but there was not anything we could
do about it, but I like the politics of it.
P: It helped in public relations.
D: Yes it did, because it showed and they could not respond to this that actually
Gore was getting screwed. That is a hard way to put it, but...
P: Another interesting issue is how the automatic recount is done. Again, I have
talked to election supervisors. Some of them, all they did was to go back and re-
tally what the machine totals were. They did not actually recount the votes.
D: That happened in several counties and I do not think we were aware of that until
we got into the contest. See, that is where the contest would have come in. We
would have discovered that immediately. When we were doing the protest, we
were not concentrating on these other counties. Nobody was, particularly.
P: Everybody was concentrating on the four major counties, right?
D: Right, actually it turned out to be three because Volusia [County] finished before
the case. Volusia was an optical ballot.
P: The issue here seems to be that the law is unclear about recounting.
D: The law is unclear about a lot of things. That is why in a contest, the judge
becomes important because he makes a ruling on how to recount and what to
recount, if you are going to recount. [He says,] here is what we are going to do,
you are going to recount all the votes and [in] the machine ballots you are going
to count those that were thrown out by hand.
P: Could he have set a standard at that point?
D: Yes, sir. He probably would not have. Nobody wanted to, for some reason.
That is another point where I was not adamant about it, I kept wanting to revisit
that in the Supreme Court. When we went back the last time, I wanted to argue
that the court should set a guideline for the machine ballots. They have already
set a guideline for everything else which would require them to choose how to do
it. If they had followed what the Massachusetts court did, the Illinois court did,
[or] the Texas statute, then the votes would have been counted differently. They
were not of course, they were not counted again, so it did not matter.
P: One complaint the Democrats had at this point was that Katherine Harris should
have intervened and been very precise about what should be done on this
D: There is no question about it. She should have, sure. The reason she did not is
because they were winning.
P: Barry Richard files, in the U.S. District Court, an injunction to stop all these
manual recounts. In his initial statement, he argued and this is going to end up
in the Supreme Court that there were no defined standards and the recount
violated the equal-protection clause of the Fourteenth Amendment.
D: He told the Florida Supreme Court in oral argument that there was no equal-
P: Is this one of those cases where you just throw in everything?
D: I presume, because Barry can come back now and say he argued that, but he
sure did not argue it when he had the opportunity to, before the Florida Supreme
Court, which is where it should have been raised.
P: What do you think Richard and Klock's strategy was at this point?
D: Just completely obliterate the thing so that nobody could get a handle on what
was going on. We played right into their hands by having these big shows going
on in Dade and Palm Beach Counties with all the people down there taking
pictures of the judge sitting like this and one with his glasses on and all that.
[There was] some guy there raising sand, who the judge in Broward County had
to almost throw out of the meeting. This was what everybody was seeing. It
looked like one big mess and there was no way anybody could ever tell what was
going to happen. I think that was where we were in bad shape. If Gore had won
and [had] the votes counted and had enough votes, then they would have been
in the bad position, except they had a lock on five votes that we did not know
about until later.
P: At this point, did you anticipate that it would ever end up in the United States
D: Yes, [I] sure did. Once they came in and intervened themselves, told the Florida
Supreme Court, tell us why you did this, I said, we are on the way to [the U.S.
Supreme Court]. But there is no equal-protection issue, this has been the law for
years and years, this standard of recounts.
P: It is interesting because if we look at the first appeal to Judge Donald
Middlebrooks [Judge, U.S. District Court], he is very clear that it is a state issue.
D: He denied it and they raised every issue in the world down there that they could,
I think, and Middlebrooks ruled against them and the Eleventh Circuit did.
P: That is the other interesting thing, the Eleventh Circuit would not accept the
Fourteenth Amendment argument either.
D: [That] happens to be the most conservative circuit in the country. There may be
one other that is [more so], but I think there were eleven Republicans on that
circuit [court] and four Democrats.
P: Also, Middlebrooks argued rather strongly, I thought, that this was clearly a state
issue, this was not a federal issue at all.
D: All of the scholars, everybody [said] this is clearly a state issue. That was what
everybody thought, even the Eleventh Circuit. You would have thought those
states' rights people on the Supreme Court would have reached the same
conclusion. They did not. They are the ones who reached the conclusion that it
was a federal issue. I do not want to pound the [U.S.] Supreme Court, we have
got enough people doing that.
P: We will give you a chance to do that later.
D: I do not have to, they have pounded themselves.
P: I have a letter that Judge Burton wrote to Secretary Harris, asking her for an
advisory opinion on whether or not they could continue the recount. She argued,
as did Clayton Roberts [director, Florida Division of Elections], that they could not
recount unless there was a major event like a hurricane.
D: The judge had already ruled against them on that. They did that to screw up the
works and Burton requested the opinion because he was on that team. I have no
doubt that Burton was angling for a federal judgeship.
P: Although he is a Democrat?
D: I do not care what he is. He was not a Democrat, he was appointed by Jeb Bush
and he was paying it back, [and] talking like this great intellectual. When I heard
him on the stand, I said, you just leave him alone because he is not talking to us.
P: Attorney General Bob Butterworth [Attorney General of Florida, 1986-present] at
the same time, said that Palm Beach County could begin the recount. If you
were on the canvassing board of Palm Beach County, who do you listen to?
D: The Attorney General.
P: But they did not.
D: Why not? They ultimately did because they had to recount.
P: But not at that time.
D: That is correct. What they did was screw it up so that they could certify the
P: But that cost time. If they were continuing in the protest, they did not count...
D: If we were not in the protest, it would not have made any difference and he
[Burton] would not have been writing letters to the Secretary of State. Somebody
would have been arguing in court [that] this was the case and they would have
lost, as they did.
P: Let me get you to expand a little bit on this. When Katherine Harris decides on
certification, she says that the law is very specific and that she really has no
discretion on certification, that it has to be done seven days after the election,
which is November 14. Do you think throughout this period she was acting in an
D: Of course not.
P: Would you expect otherwise since she was a Republican?
D: No, I would not expect otherwise, she was George Bush's campaign manager. I
will tell you a story. The first night, we were sitting having dinner with [Ron] Klain,
[Warren] Christopher, Daley, and Jeremy Bash [legal advisor for Al Gore in 2000
election] I think. There were a couple of other guys there at the Governor's Club
in the library. We were discussing this and somebody [asked], what is it she
wants? I said, you know the rumor in the press is she wants to be an
ambassador. Daley said, as long as there are forty Democrats in the Senate, I
do not know whether that will work or not. Christopher, God bless him, said, I
don't know what you want in an ambassador is somebody that can take orders
and carry them out, and she is a very good soldier. I think we would have to all
agree that she was a good soldier and that is why she is so popular with the
Republicans. I like Katherine, but she was doing what she felt she was elected
to do by the Republicans.
P: What would the situation have been if it had been reversed, with a Democrat
secretary of state?
D: Well, it would depend on who it was. We have had some Democratic secretary
of states that would not have done that. They would have called it straight down
the line. Bob Gray [Robert Gray, Florida secretary of state, 1930-1961], who I
knew many years ago, was so honest. I handled his estate and he died with
about a $30,000 estate and he was on the cabinet for years. He lived on his
$5,000 salary or whatever they got in those days. I think George Firestone
[Florida secretary of state, 1979-1987] was a very able man who is also a lawyer
who had an understanding [of the law], I do not think [anyone] would have
[gotten] George to do it. There may have been some others that might, I do not
know. Most of them probably would not have. I do not know about Sandra
Mortham [Florida secretary of state, 1995-1999], she had done a lot of things that
were sort of off-the-wall. Sandra was all right. She would have been under great
pressure as Harris was, to do the things they wanted her to do.
P: One of the arguments you made against her decision is that she did have
flexibility. She could wait until November 17 when the overseas ballots came in.
D: She could do that or she could actually extend the time. She said, we have only
done it when we had a hurricane. My argument was that this is as momentous
an event as a hurricane and can be a bigger disaster. The [Florida Supreme
Court] court held that that was true, that she had the discretion, and she did. She
could have extended the time for certification until they finished counting the
votes, but that was not to be.
P: I think the term you used was hyper-technical reliance on the statutes.
D: That is true, [it] was not a proper interpretation of the statutes. She said, I do not
have discretion, [but] the statute gave her discretion.
P: That statute is very confusing because it says they shall be counted and they
may be counted.
D: When they use may, may controls over shall. That is a general rule of
construction. The Supreme Court used established rules of construction in
holding that she had the discretion, and it was unanimous.
P: One thing that is interesting, I talked to David Cardwell [attorney, CNN elections
analyst] about this, and he had that same position.
D: David is probably as knowledgeable of election law as anybody.
P: He said that they had the word may in there for a specific reason because what if
the vote, as in Miami, is contested and you do not get the final results until two
D: Where it usually applies is where it does not make any difference about time.
Nobody really had dealt with that. I think David would tell you that. We had an
election of a county judge in Wakulla County not too long ago, [a] judge that had
been re-elected. Three years later, almost when the term was up, they ruled that
he lost. So out he goes, and the new one comes in and serves a one-year term.
You can kick them out any time, but you could not [in] the presidential race
because you had to have them [the votes] counted.
P: I do not believe that you filed a suit to block the certification.
D: We did not and the thinking on that and I agree with it I do not think it was a
big consideration that was made, it might have been [judging] by some of the
others. I know the Republicans were counting on [being able to say that] it has
been certified, and the judge and the court come in and set it aside. What they
would have done is, order Jeb Bush and Katherine Harris to undo [the]
certification, and if they did not, lock them up for contempt. The court clearly had
jurisdiction to do that. My view was that once the court set it aside and forced
them to retract it, they could not call it a certification, it was no longer one. The
court had voided it, and they had ordered the certification to be a court-count.
That would have been the count. They would have argued, and they were
looking around like they were going to, [George] Terwilliger [attorney for George
W. Bush in 2000 election] was running for FBI [Federal Bureau of Investigation]
Director and so on, who I think is a pretty good lawyer, as a matter of fact. He is
a very intellectual type fellow. He argued, and he and I had this argument
privately later, that that would have done what I said they were going to try to do
anyway, with the legislature sending a slate [of electors] up. He said, we were
going to argue that there were two slates, one being sent up by the Florida
Supreme Court and one being sent up by the governor and therefore, we were
going to say that it goes into Congress. If it goes into Congress, the Republicans
win because it goes to the Senate, it goes Democratic, it goes to the House, it
goes Republican, then it goes to the House, who elects the president. They had
a control of the states, they vote by state. Of the 50 delegations, more than a
majority were controlled by Republicans, so they would have elected Bush. The
problem with that argument is that if you had gone in and enjoined him, you
would have had the same argument. [But] enjoining him after the fact is no
different than enjoining him before the fact.
P: So it was really a moot point.
D: I thought it was a moot point and I think we all concluded that. The Republicans
did not, they thought that was a big deal at the time. I always felt that the
legislature could send up a slate and they would have the same argument
whether it was legal or not. [End of side 1, Tape A]
P: One thing that was also interesting to me in regards to events in Palm Beach,
was that Larry Tribe [attorney for Al Gore in 2000 election; legal scholar] and
Alan Dershowitz [lawyer, professor, author], and all of these lawyers were down
there talking about these cases. Jesse Jackson [civil rights leader, founder of the
Rainbow Coalition, unsuccessful candidate for Democratic presidential
nomination, 1984, 1988] came in and the press were all there. The Republicans
argues that this whole process was chaotic.
D: They made it chaotic and we contributed, I guess. I do not think we sent Larry
Tribe and Dershowitz. I do not remember Tribe being down there, I do
remember Dershowitz was running around a lot. Of course the other side had all
of their people running around. They brought in the governor of Montana [Mark
Racicot, governor, 1993-2001], that highly populated state, to tell us in Florida
how to run our business. I thought somebody should have really lambasted that
nonsense. They bring [Geoge] Pataki [New York governor, 1995-present] down
from New York. New York has some of the most corrupt elections locally, [of]
any state, and here he is down here telling Florida how to do this. I think we did
not handle that very well, we could have made points out of that. This Montana
governor did not know what in the heck he was talking about. I do not know what
his name was, but he was a nice-looking young man who talked like he knew
what he was talking about. He was reading what they told him to.
P: Did Jesse Jackson hurt the cause?
D: I do not know. I do not remember Jesse Jackson at all. He was not connected
with us. He was not on my radar screen. I do not remember whether he helped
or hurt. I would think all of them who went down there were not doing anybody
P: Let us talk about the military votes which became a rather difficult public-relations
D: We threw that one in, they threw that one in too. I think we had a good point,
then they wound up counting votes that were mailed after the election and all
sorts of things it turned out, and got away with it. I do not know why everybody
was afraid to contest the military vote because a lot of [them were] not military
votes. Overseas votes were not all military. If they were illegal, they were illegal.
The man in the military does not have any more right to vote than anybody else.
The ones [stationed] in the States did not have that right. I served in the military.
I was in Korea, and I got my ballot two weeks after the election. [It was the] first
time I could have voted, I just was twenty-one, and I was sitting there and I get
my ballot on the hill there. I was in combat. I did not get to vote, though.
P: To follow that point, Bush and his operatives went to some counties, Okaloosa
County was one of them, and other counties in the panhandle where there are
military people, and asked them to re-visit those absentee ballots.
D: They did.
P: Some six ballots were counted with a postmark of November 17. Some were
November 8, November 9, one of them was faxed in.
D: Do you not remember [Joseph] Lieberman [U.S. Senator from Connecticut, 1989-
present; unsuccessful Democratic vice-presidential candidate, 2000]? How are
we going to contest them after he gets up and says, we are not contesting the
right of the military to vote. That sort of was the end of that.
P: You think that killed it for the Gore team?
D: Well, I do not know, what are you going to do then?
P: Then General Norman Schwartzkopf [Leader of Allied Forces in Gulf War] comes
out and accuses Gore of being unpatriotic.
D: He is a big Republican and he is a political person. They have a right to say all
these things. I do not want to indicate that I do not think they were doing
anything wrong by saying all of this. Legally, I think they were wrong, but
politically, that was fair game. Again, if we [had] been in a contest, they would
have all been done by a court.
P: John Kerry [U.S. Senator from Massachusetts, 1985-present] came down and he
is a decorated Vietnam veteran. He said, the votes are illegal, they should not be
D: Right, he was right.
P: Should that not have been pressed a little bit harder for public relations reasons?
D: I am not a public relations person obviously, but I think certainly that issue should
have been made clear. Mainly because you are right. The trouble with people in
public relations is that they will say things they know are wrong and people get to
arguing about it. If you stick with what is right, you ultimately will prevail even if
P: The election, depending on how you look at it, was decided with absentee
D: Well, it could have been. It was decided so many different ways.
P: That is what I mean, there are a lot of ways it could have been decided. But that
was an area where Gore could have gotten enough votes to go ahead.
D: He could potentially, definitely have gotten, kept, or cancelled enough Bush
votes. Either way, it is Gore votes.
P: Let me go back to this November 14 decision by Judge Terry Lewis. It seems to
me that it is a little bit vague here. He says that Harris has discretion in this
decision for certification, but he does not make a specific order to her to allow
these recounts. Why not?
D: What he said is [that] she has discretion, she has not exercised it, the court's
duty is to send it back and say you applied the wrong law, now exercise your
discretion. His decision was correct if that was his conclusion, and that was his
conclusion. In retrospect, I have no argument with his decision. I thought it was
one of the better-reasoned ones. What he said was basically, you guys are right,
she has got discretion and that is what I am holding and I am going to tell her to
exercise her discretion, but I cannot tell her what to do. Bring it back after she
does it and then I will review it, which he did. He said she was within her
discretion to do what she did. Then he suggested, rather subtly, that we file a
contest. I was reading him pretty good. That was where I got in trouble, I think,
with some of the people. I was not chastised, but my influence [was changed]
because I got quoted in the New York Times, somewhere, as saying-and I did
not realize I had done this-I am not sure I did, but you never can deny a quote.
[A reporter] heard [Mark] Herron and me talking and we said, we ought to be in a
contest. He comes up and says, what do you mean? Why are you in this
protest? I said something like, the decision was made by the people in
Washington because they did not want to make us look like sore losers. They
put that in there. I think when they read that up there in Washington, whoever
the brain trusts were, said, shut that guy up. Then I got called down on
something. It was not anything much. I had a reporter for the American Bar
Association Journal that followed me up and I went in a room to talk to her.
Somebody sent the enforcer for the team in there to tell her she had to get out,
that we did not allow reporters in the area where we were. I almost told them to
go to hell, but I said, well, I am not running this show.
P: How much influence do you think Mac Stipanovich had?
D: Great. He is a good politician. I like Mac. A lot of Democrats do not like him but
I like him, he is what he is and he does not make pretenses. If all the
Republicans were like Mac, I could live great.
P: Do you think it was improper for Katherine Harris to have Mac Stipanovich and
other Republicans e-mail messages from the Bush campaign, and phone calls to
D: I do not want to judge that. Politics are politics and she has held a political office.
She was elected by those people. I have been around long enough to know that
the people that elected you can get ahold of you and talk to you.
P: One issue that some critics have said was just a matter of show was when she
asked for letters from the canvassing boards justifying an extension of the time.
D: She did not even read them, they did not have time. That complied with Lewis'
order, [she said].
P: I understand that Joe Klock advised her to do that because it did make her
appear as though she had support for what she did.
D: I do not know what Joe Klock did, but somebody did it. I would have advised her
to do it. If I had been her lawyer, I would have said, make these people justify
why they want to do it. Then deny it.
P: One of the issues that becomes important is when the court said that votes
should be certified either Monday or, if the office is open, at 5:00 Sunday.
D: Which it was.
P: It had never been before.
D: Well, it was then.
P: Why would he put that in there?
D: Because [the court] was going to make the time Sunday, then said, if the office is
not open, Monday morning. They can open the office [either] time they want to.
P: That certainly gives a sense of partisanship, if she would open it Sunday when it
normally is not open.
D: The fact that she did it, does. She had a right to be partisan. She was elected.
P: How would you assess Governor Jeb Bush's activity during this period of time?
He did recuse himself from the state elections commission.
D: Yeah right, sure. Who did he put in there? The Commissioner of Agriculture
[1991-2001], Bob Crawford, who was called T. C. by one of his close friends. I
will not name him, but he came into the capitol and asked me to go up there with
him because I had met him at the airport. This was long before all this came
about. He said, let us go see T. C. I said, who is that? He said, the turncoat.
We walked down [to] the secretary [and he] says, is the commissioner in? She
says, yes, but he is in conference. He said, who with? That woman that runs the
office? Okay, well I am going in. He just barged on in. He said, T. C. I want my
$10,000 back I gave you over the years for your campaigns; you have turned
coat. I am standing there going like this [smiling], it was enjoyable. It was more
of a fun time than anything else.
P: Do you think that Jeb Bush was orchestrating all of these activities? I know for
example, and I am sure you know as well, that the Republicans had lawyers all
over the state. They were putting out memos, they were giving out t-shirts, they
were bringing people from all over the country to watch each county.
D: I do not know that Jeb was more in it than others. He was a focal point because
he was the governor and he had the ability to have a political organization and
certainly that was used. He obviously was involved and he obviously was very
interested in getting his brother elected and he was successful if it was him, but it
was more than him, it was the whole bunch. I do not know that anybody could
ever say that he was not talking to them and putting in his two-cents-worth about
what they ought to do. I think that was true, but I am not sure that I fault Jeb
Bush for that. He was elected too and his brother was running. What would you
expect him to do? Go lay down in a back room and not do anything? I would
have been very shocked if he had not been involved in decision-making. I do not
think there is anything wrong with it either. Let me tell you one thing I heard on
the radio. I am driving in and he was in Texas. This was right when it started.
They got this [young lawyer] that was a deputy general counsel that just loved to
say things off-the-wall. He is not there anymore. He was on, and [said the
Governor was] in Texas. He said, he has got to come back and we have got to
plan our recount strategy. I should have saved that because that showed who
was planning the strategy. He was certainly in the planning group. He put the
governor in it. He would not have been coming back "to plan our recount
strategy." This was before we had the recount suit filed.
P: You were going to appeal Lewis's decision allowing the certification the election.
D: Right. Let me intervene there. David Boies [attorney for Al Gore in 2000
election], who I think was the best lawyer in the whole case, thought that we
would not appeal it. We thought we would file the contest. I think David thought
that too, [in] the afternoon. It seemed to me like David, when he heard about it,
he was somewhere off wandering around. I read somewhere he was eating an
ice cream cone, that sounds kind of like him. I do not know where I was, I was
wandering around somewhere too. Maybe I was here because I had the team in
there [in his office] and I was walking back there. I said, let us get going and we
can contest. I think I was talking to John Newton and he agreed and probably
Mitch [Berger]. We all said, okay, we can get with it now. Then the word came
down, we are going to appeal. So David and I both started on the appeal. We
have got to say that she [Katherine Harris] did not exercise her discretion
properly, she abused it, and that they should have extended it [the vote
counting]. Now we have got to figure out how we are going to get the court to
extend it, and how long? We have got to get the votes counted. So, we started
to work on briefs, everybody did. Other people were writing the briefs, we did not
write them. Honestly, I think we all thought when we heard that he [Judge Lewis]
had ruled, which he had reasonable basis to do, [but] he had reasonable basis to
rule the other way too. In fact, the [Florida] Supreme Court overruled him by
saying he should have. If I had been a circuit judge, I would not have undertaken
to hold her in contempt, in effect, by ordering her to do it. I would have been
reticent to do that as a circuit judge. I would have ruled that on its face she
exercised her discretion, therefore I am not going to intercede. Of course, this
made them say Judge Lewis was this great hero. [They] get up and call him a
courageous judge and all this. Baker does that after pulverizing the Florida
Supreme Court. Here I am thinking that the one guy that I know as a judge that
would have loved to rule the other way did not because he [Judge Lewis] thought
the law required him to do what he did. They were making him a political hero
and he is the last one on earth that ever wanted to be one. I know him fairly well.
I knew him when he was a lawyer. He is not the type of guy that seeks
[publicity]. He enjoys publicity, he enjoys being a hero, all that. Everybody does,
but that was not his motive. What they [the Republicans] really did not want was
to get him to rule on the contest because they knew they would have what they
were getting, which was a supervised recount. He would not have put up with
any nonsense. All those people running around screaming and yelling, they
would not have been involved in the vote count. They would have been in the jail
just like when we were counting them over in the library [final recount halted by
U. S. Supreme Court]. There was not anybody in there messing around. There
were eight circuit judges. It was a judicial count.
P: Talk about David Boies. Who picked him and why?
D: I presume he was picked by the brain trust, whoever it was. [Warren]
Christopher, I think, was involved in the picking, and [William] Daley to some
extent, but actually it was Gore, I guess. He is a very visible, good lawyer. He
had just beat Bill Gates [founder, Microsoft] and if you watch the deposition of
Gates, he just did a super job. He is just a good lawyer and a unique one. He
was the best lawyer in the whole bunch.
P: Was it difficult for him to come in after the case had started?
D: He came in right away. He was down there when we were in Lewis's court
before we appealed. He was in there almost at the time I was. I had been in a
couple of days when he came in. He did not assert himself at all, he just sort of
fit right in. I thought he was outstanding in that he was so accustomed to fame
and all of this, [and] he was not like most lawyers who are. He did not go around
telling you he was the best lawyer on the earth, which a lot of them do. He just
was the best lawyer around. He assumed that role and I immediately said that
he should be the lead counsel, particularly in the overall aspect of it. Truthfully,
the lead counsel was a group somewhere up in Washington, I think, as far as
calling what we ultimately did. That is the client's prerogative.
P: Do you think Gore would listen to Boies?
D: Yeah, but he would listen to a lot of others too.
P: I understand that not only is Boies a quick study, but he tends to memorize all of
D: He does not memorize. I used to be able to do this. In fact, I always did it when I
argued in appellate court. I never took notes with me. What he did is he sat and
he did all of his [work beforehand]. Great concentration is what he had. Before
he went up and before he got there, he would go over and go over and go over
[the notes]. Then he would put them down and he would go up there and he
would know pretty much what they were going to ask him. He would have a case
with a page and [that] sort of thing. It was very impressive. He will be the first
one to tell you that he does not have a photographic memory. His secret is
concentration. I think he was a learning-disabled child and that is how he
created the ability to just shut everything out and sit there and do it. That is what
he had and that is what it was. That is why he is such a great bridge player, or
gambler, or whatever. He has a [superb] concentration. It is not memory so
much as it is concentration. I know the difference, because now I am losing
memory. I am getting older and I know it. I lose names and I want to tell you
somebody and I cannot think of his name. I have got to go back and pick it up.
That is loss of concentration and loss of memory. He will get his loss of memory
somewhere because it sort of creeps up on you. I would say that the only other
guy that I knew that did that every time was Reeves Bowen, who was the chief
criminal appellate lawyer for the attorney general. He was blind, went blind.
Hell, he knew every criminal case known to man decided by the Florida Supreme
Court. He would get up there to argue and he had a [deformed] hand. He would
say, now, 200 Southern 2d page 104, paragraph 8 [legal case citation], it says...
I am sitting there going, God almighty! Well, that was the only way he could do
it. He could not read the notes anyway. He did memorize, Reeves did.
P: Did the Florida Supreme Court reach out and take this case?
P: It was appealed directly.
D: Well, we went to the DCA [District Court of Appeal] and asked that it be sent up.
They immediately sent it up by the time it hit. Everybody knew it had to go to the
P: Had the process been completed?
D: Yes, indeed. We went first to the DCA, who then certified it, then we filed our
briefs in the [Florida] Supreme Court.
P: What was your argument in Florida Supreme Court 1 to overturn the
D: Basically, [it was] that she had not properly exercised her discretion which was
shown by the fact that she got the letter [requesting an extension] an hour later
without considering anything. [She] just overruled it. This was a momentous
occasion, it was thought to be covered by the statute. The word "may" made it
discretionary and she abused her discretion.
P: And, in effect, disenfranchised voters.
D: Correct. The law in Florida was [that] we did everything. [The] presumption was
to count the votes. That was our argument. Now, I did not argue in oral
argument. I sat at counsel table. I am going to tell you why. That weekend
before we had that argument, John Thrasher [Florida state representative, 1993-
2001] made a statement to press.
P: Former speaker of the Florida House [1999-2000].
D: Now [he is a] big-time lobbyist. He said to several members of the press, they
were probably going to have trouble in the Florida Supreme Court because
Dexter Douglass was going to argue the case and he appointed six of them. He
was general counsel to Governor Chiles, but [Douglass] is the man that selected
the judges which is bullcrap if anybody knew Lawton. Lawton selected
whoever he wanted to. The trouble with his statement was, it was absolutely a
lie. I was not general counsel when any of them were appointed. None of them.
I had left when the last two [were appointed] and the other four were appointed
before I went over as general counsel. I was nothing more than Lawton's buddy
or friend and also was co-chair of the 1995 inauguration. Anyway, no Florida
paper used this, because they knew it was false. In fact, Mike Griffin called me
and says, what is this crap? I said, Thrasher is at it again. He is like John
Shebel [lobbyist for Associated Industries of Florida], if he told the truth, he would
go back and correct it. That is his style, he just says whatever comes to his
mind. He said, can I quote that? I said, hell no, you cannot quote that. We
laughed. Mark Silva [Miami Herald] had heard it and they all just ignored it
because it was the same type stuff that the lobbyists put out from time to time
about people. So then The Wall Street Journal prints the article. In the article, it
says, Thrasher made this statement. Then they come over here [using it] and
they write this editorial, the lead editorial, in which they spend the whole editorial
skewering the Florida Supreme Court and me, saying that it is the Dexter
Douglass court. Here I am fixing to go over and argue. Some smart-ass reporter
asked me if I was going to argue the case after this came out. I said, I do not
know whether I am or not, but I will be at the counsel table, which was correct
and I was. There were two reasons I did not argue. That was one of them. I
probably would have made some small argument like Barry [Richard] did.
P: Was it a public relations issue?
D: No, I felt with that [statement] being on the table and out in the form of an
editorial that it would be embarrassing to the court [and the] bar [association], if I
got up there and made the argument, or a significant part of the argument at all,
because it would appear as an absolute political thing. I thought that I was in the
position of not being able to do anything [other] than sit there and introduce Boies
because he had not been before the court. That is why I did not make an
argument. In the last argument, I was going to argue the remedy portion, the one
where they did order the recount. Of course, time ran out and the chief justice
would not allow an extension of time to argue that, which is not unusual. If you
remember, one of the judges said, wait a minute, what remedy do you [seek]?
We had said in opening that I would handle the remedy argument. I want to
hear, one of the judges said, about the suggested remedy. The chief justice
said, no, the time is up and they walked out.
P: What would you have said?
D: I was going to suggest they do essentially what they did. I was going to make
several suggestions, but I was saying insofar as counting the votes that are here,
that it is already set up for the clerk of the court and the circuit judge in
Tallahassee to supervise the count there, and it could be done anywhere under
the contest statute. I said that in a news conference later. I do not know whether
anybody saw it or not. They did more than I would have argued probably.
P: One of the cases cited, I think by David Boies, was Boardman v. Esteva [decision
states primary consideration in election contest is whether the will of the people
has been affected]. Do you think that had any impact?
D: I do not want to sound flip but I have handled [or] been involved in [several]
election contest cases. You very rarely win them, number one. Every case is
different and the precedent tends to become however you interpret the case. I
do not think Boardman was any more important than some of the other cases
and it was obviously applicable. The case from Volusia County was the one that
the chief justice had written, it was very applicable. We count the votes, [make
the] decision and all that. That was one that was more important, I thought, than
any other case. That was my thinking.
P: Give me your assessment of the first Florida Supreme Court 7-0 decision which
said that Palm Beach and Broward County may continue the hand counts.
D: I thought it was a correct decision.
P: Why did they leave it up to Judge Lewis to determine if Katherine Harris must
include those votes? They did not specify that those votes had to be included.
D: You mean when they sent it back to Lewis? What they really said was you have
got to now rule on her discretion.
P: That was a logical place to send it because that is where it started. Where did
this extending the deadline until November 26 come from?
D: In oral argument.
P: Who made that argument?
D: David. He did not make it quite like that. He said, this is the real hard part of the
decision and we want to help the court arrive at a conclusion. He did a great job
on this and he let the court sort of make the decision in his oral argument.
P: The issue was to speed it up and at every point, my presumption is the
Republicans are trying to slow it down.
D: There is no question about that.
P: Another issue that comes up that some people argue was sort of a blow to Gore
trying to get ahead in the count is when Miami-Dade discontinued their count on
the basis that they could not finish in time.
D: That is because they had all those people out there screaming and yelling, [and
as it] came out in the trial [before Judge Sauls], none of them were from Miami.
One of the ones that got up there and testified was a lawyer from New York.
Kendall Coffey asked him had he ever taken the Fifth Amendment in an election
case, and it blew up the whole courtroom. Of course he had. Then he comes
back [and] the judge [said he] is going to put everybody in jail if you ask him
again. I said [to our side privately], well, he was a U.S. Attorney, he gets away
with it in federal court. They did not print that, thank goodness. Anyway, Kendall
comes back and he said, were you out there when all this was going on? [The
man] said, yes, I was there and all these people were being very orderly and I
was there and I was being very orderly. [Kendall] flashes this picture up on the
big screen in there. He said, see this guy right here? This guy is [making a
gesture and saying] yeah! And it was him. [Laughter]. Screaming and yelling
and all these people trying to push this door down and get in. He was there
going like this. Coffey said, I see, is that you? Yes, he says. Coffey says, I do
not think I have any more questions for you. I thought Kendall killed him.
P: In the end, you would argue that this was just done by intimidation?
D: I think that was a fair argument. Correct.
P: Judge Robert Lee in the Broward County Circuit Court also had problems with
D: He was a no nonsense judge.
P: In fact, he threw a couple people out.
D: He had to, because they were put there for the sole purpose of baiting him.
P: That is what he said.
D: He was absolutely right. I watched one of them and he was much more tolerant
than most judges would have been.
P: He said that he looked at twenty challenges from the Republicans and none of
them had any validity whatsoever. They were just doing that to prolong the
process. Why did not he stop it altogether? I guess he cannot.
D: [He] cannot. He was not in the position of being the judge. He was the chairman
of the canvassing board.
P: He was one of three.
D: That is why if you had a judge doing it, it would not have happened.
P: Talk about Sandra Goard [supervisor of elections, Seminole County] and the
Seminole County and the Martin County cases.
D: We were not in that. We were not in it because Gore told us not to be in it.
P: The question is, should you have been in it?
D: Yes. If we [had] been in a contest, we would have been in it, everywhere.
P: Since you are still dealing with the protest, should you have joined the suit?
D: We recommended that. I did.
P: Could you have ever won that?
D: Probably not. [With] singled-out [cases] we could not. If it was in the whole state
we could. The law is on absentee ballots, [that] unless you can show that the
absentee ballots that were actually fraudulent were voted in such a manner that it
would affect the outcome of the election, then they do not [warrant voiding the
election]. The way you had to show that here was by taking the statistics of what
the absentee ballots were and then saying, this many of them would have been
for Gore and this many of them would have been for Bush and therefore it does
affect the election to throw them all out. That was the argument you had to make
and it was made well, but the court did not buy that.
P: Do you think both Judge Nikki Clark [Leon County Circuit Court] and Judge Lewis
D: I think they could have very easily ruled that they should have thrown them out. I
am not sure how I would rule if I had been the judge, but I think they could have
ruled either way. It was not a clear-cut [decision], like most of these cases
involving absentees were clear. I won one in [a small] county. The clerk of court
race. They do not have many votes. They had three guys [running] and I
represented the guy that got bumped out by two votes and he did not get to run
in the second primary. We came in and contested the election. This was under
[the] old statute. We proved that six absentee ballots were fraudulent, one of
them was dead, one of them was out of the county, whatever. We had six of
them. We absolutely proved it. [The] judge threw them out, threw the election out
[and] made them re-run the first primary after the second primary had already
been [decided]. This was three or four months after the election of the guy. [The
judge] made the three of them run again in a special election. My man got in the
run-off, and in the run-off he beat the incumbent. So he is the clerk of the court.
I want to tell you the sequel to that story. He was always my friend, he always
voted Democratic, he was a great, great [Democrat]. When Lawton was running
in 1994 for re-election [for governor], I found out he was supporting Jeb Bush. I
called him up and I said, you sorry, good-for-nothing son-of-a-gun. I got you this
job, I threw the bastards out and now what have you done? You have made so
much money, you have become a damn Republican. He said, I did not do it [but]
I got a picture of him at some [Bush] fish-fry. I sent it to him and said, I want a
public statement. So he came back and his public statement was Governor
Chiles is a good man. That is as far as he went, he had already committed so
much to the other people. He got booted out the next election, so it served him
P: One of the problems with Sandra Goard is that there was a charge that she had
violated election law by allowing Republicans to come in and add the voter
D: I think that is a violation of the election law.
P: David Cardwell said he thought it was not, but thought it was a violation of public-
D: It is violation of the law, I should say. It clearly was a violation of the law to allow
these people to come in and do her job.
P: Again, if you somehow throw out those votes, you throw them all out and then
you disenfranchise those who did not get involved with that.
D: Bush carried the counties, both of them. I thought that singled out, those
counties were not winners. There might have been a winner in a contest to begin
with, before all the publicity got going.
P: Another issue that comes up is the December 12 safe harbor. In the early
arguments before the Florida Supreme Court, David Boies accepted that as the
D: Well, he did and he didn't. The U.S. Supreme Court, in the oral argument, [which
the lawyer] from Harvard, [Larry] Tribe, handled, it was stated by the court
somewhere that was the safe harbor date. I thought the safe harbor date was
[December] 18. Most everybody that looked at the statute, I did not pay any
attention to it after everybody agreed it was [December] 12, and the Florida
Supreme Court said it was [December] 12.
P: In the later arguments, Boies is going to argue for December 18. Do you think
that put him in a disadvantageous position?
D: No, I don't think it made any difference. I think it was December 12 anyway? Is
that not what they finally held?
P: Yes, but in the appeal before the Florida Supreme Court, Boies's argument was
that it could be extended until [December] 18.
D: We were not arguing safe harbor at that point. It is a different thing. It could
have been until [December] 18 and then we would have had two slates. The
legislature would have sent one up. The legislature would have sent one up on
[December] 12. Then we would have had ours going up on [December] 18.
There would have been two slates, so we lose.
P: As we progress through the election, how much influence does Gore have? Are
you aware that he is involved in all of these decisions?
P: Is he constantly in contact with you and David Boies?
D: Not with me. He talked to me once or twice and then later on toward the end he
talked to me several times. He was in contact primarily with [Ron] Klain. Klain
was the man that we had that was giving us Gore's decisions.
P: So you think throughout this he was, in fact, making all the decisions?
D: Final decisions. I mean, he had a lot of advisors and I do not know which ones
up there were winning the day.
P: Talk a little bit about how the process continues on closer to the safe harbor day.
Tom Feeney [Florida state representative, 1990-1994, 1996-present; speaker of
Florida house of representatives, 2001-present] and the Florida Legislature get
involved. They argue that they have to protect Florida's electoral votes. What
was your reaction to that decision?
D: They did not know what the hell they were doing, they were doing what they were
told. Feeney does not know a constitution from a morning walk. I think what
they were saying was [that they had] the power to do this and [were] going to do
it if something [was not] done by then. [They were] going to send a slate up,
which [they] have a right to do. The history of the electoral college is [that] the
legislature sent the slate up. They do designate the electors. Except our statute
says they have to designate the group that ran on [the slate chosen by the
voters], but they wind up designating them.
P: Ultimately, the House is going to vote something like 79-41 to seat those
D: So is the Senate.
P: Although they adjourned, they never really came to a vote.
D: They would have called them back. They did not have to come to a vote.
P: Because the court had decided.
D: The [Florida Senate] never got there, but they certainly could have and they
would have. Then they would have had two slates up there unless ours was up
there before [December] 12.
P: If it had been after [December] 12, could it have been disregarded?
D: No, it would have caused it to go into the Congress.
P: Was the legislature constitutionally justified? I guess it could be under the U.S.
Statutes 3-5 and based on the old electoral count act, which says the legislature
makes the rules.
D: They would not have been able to send up a slate at all if the court had
concluded its recount by [December] 12 because that was the safe harbor day.
P: Let us just say by [December] 12 if the recount had gone in favor of Gore...
D: Probably they would not have sent up a slate, [but] they might have. They would
have relied on the U.S. Supreme Court. I do not know what they would have
done. I am not even sure they knew what they would have done.
P: I believe you filed a brief with the Florida Supreme Court to get them to make
Miami-Dade continue the recount. What was your argument in that case?
D: Gosh, I do not remember.
P: The Florida Supreme Court ruled that they could not order them to do that, but
they noted in their opinion that they should not have stopped counting.
D: That is why I do not remember what we argued. It came to no good.
P: The real determining factor is the canvassing boards.
D: Under a protest, that is right. They have got discretion. If the judge is doing it, all
that is out the window.
P: The election is formally certified on November 26, so you now file suit to
challenge the certification known as the contest, and you draw as the judge,
Sanders Sauls. What was your reaction when you found out he would be the
judge in your case?
D: It would not move quickly and we would lose.
P: Why did you not ask to recuse him?
D: What grounds [could we use]?
P: You would look like you were judge-shopping, I guess.
D: There were not any grounds to recuse him. We had a potential ground, I am not
sure it would have held up, but one of the lawyers in the case, John Newton, had
supported Sauls's opponent when he ran for circuit judge. He had offered to
shake hands with him at the next meeting of the bar association and Sauls
refused to shake hands with him, but that had been three or four years ago. I did
not think that would [hold up]. The client has to certify, in order to get a recusal,
that he does not think he can get a fair trial. I do not think that we had grounds at
that point for saying that. I felt that way because I knew Sandy Sauls well, [and]
had known him a long, long time. He is very conservative. He had trouble with
the Florida Supreme Court, and I knew all this, but by the same token I did not
think there were legal grounds to recuse him and I said so. I also said, in my
opinion, that he was probably one judge who philosophically was opposed to our
position 100 percent. He did not want us to win. He did not think we should. I
was not saying that he would be dishonest in any way, but maybe if we drew [a
judge] that wanted us to win [things would be different], that is the way life is. He
tends to run the court slowly. I knew the other side was going to do everything
they could to drag it out. One thing he did that I think even some of the others
[objected to], he let these interveners just waste a tremendous amount of time in
the proceedings, [but] he was not the only one who did. I think somebody, and I
have said this, should address the rules when somebody intervenes, when they
are just a citizen off the street and you have got something going here, they
should not have the right to stand there and take all their time in the litigation, the
court's time. They had this outfit, Judicial Watch, a guy was going to take a seat
at the counsel table. He was a pushy guy. Sauls let him stay behind the bar. I
would have thrown him out of the courtroom, if I had have been the judge.
Judicial Watch is nothing but a right-wing political organization. They were
formed to get after Democratic judges in Washington D.C.
P: What was your reaction to television in the courts?
D: I thought it was fine, I did not have any problem with it. You get used to it and
you do not know they are there. This was a little unusual, but they handled it
very well. I thought [with] small courtrooms, there was not any other way to
handle that. I think it probably caused some people to show off a little bit, but the
main lawyers did not.
P: Those of us who were watching it were interested in the huge array of lawyers on
D: There were a lot of them you could not see who were sitting out in the audience
P: Why were there so many at the counsel table, when they could not participate?
D: From our standpoint, they were not us, they were other parties, interveners'
lawyers. We only kept three at the counsel table.
P: You and Boies.
D: And from time to time, Deeno Kitchen [attorney for Al Gore in 2000 election]
came in, we sat him [there] some. I cannot remember who all did sit there, but
primarily Boies and I were the only two who sat there every day.
P: You requested an expedited trial calendar.
D: Every day, every morning. I would start off by saying, judge... I think I finally said
judge, if you must rule against us, please do it.
D: I said, I have asked and we have asked on behalf of our client, please rule.
There is no need to continue to go through all of this. He said all right, Mr.
Douglass, and then I would sit down and say, what in the hell am I doing here?
P: What was the thinking behind having all these ballots brought to Tallahassee?
D: Well, that was where we were going to count them.
P: You thought it would save time if you had them already there?
D: Correct. Also, we would get them out of that mess down there.
P: Did you assume at any point that Sauls would count them?
D: No, no. I do not know. We kept hoping he would. David would get up and say,
the votes are here judge, count them. I would get up and say, judge, if we count
the votes, however you rule will not make any difference. Actually, it gave us one
of our best points on appeal. He never looked at them. How can he rule against
them? He never looked at them. He did not know what was in them. Thank
God for unanswered prayers, right?
P: How in the world could you keep up with all of these lawsuits? You are having to
prepare briefs in forty-eight hours notice.
D: Actually, it was really divided, we had people that were doing nothing but writing
briefs. They were watching TV, they did not need a record. They would be
preparing it in case we won, they would have one. Then there was one
[prepared] in case we lose. We would come back to the office and they would
have all this done. All we would have to do is edit. Sometimes the editing was
really tough, [but we] had to do it. I remember the last brief we filed I guess, [it
was given to us with sixty-five or seventy pages which would require a request to
the court to exceed fifty pages]. I said, [you] do not ever get an increase in the
size of the brief. He said, what do you mean? I said, say you are on the court
and somebody files an eighty-page brief. Are you going to read the thing when
you have got to make a ruling in two days? You will not even do it if you have to
make a ruling in six months, most of the time. Go in and cut it out [and] cut it
down. You do that and you [will] probably [have] a better brief when you get
P: How many days or hours were you spending on tasks? Give me an example of a
D: For me? It was a little different. I lived here. I would have been better off if I did
not live here. I have a farm, I am calving during this, my cows are having calves.
My wife is out there by herself at night. She would know something about it, but
she cannot pull calves if she had to pull one. Anyway, I am going through this.
But this is normal, I do this. I have been doing it [for] twenty-five years, I really
enjoy it. I go home at night and I am out there in the middle of the night going
around looking at everything [on the farm]. I quit going on TV because I would
not get home until midnight. If I was on Larry King Live, I would get off at 10:00,
then I would have to come back to the office, then I would drive home. So I just
quit doing that. They kept wanting me to go on [against] Barry [Richard]. They
were very nice, incidentally. That was a real enjoyable program to be on. The
producer was a very nice guy. I would just say, I cannot do it. I did it two or
three times. I would try to get home before 11:00 at night and then spend at
least an hour on my ATV [all-terrain vehicle] going around where I had the cows
calving and checking to see if they had calves. My people I had working for me, I
had two that would come in the morning and would be there before I left, they
would be there by daylight, a little after. If there [were new] calves to be weighed
and tagged or problems, I would tell them to [take care of] them. Terese would
see that they did. Then I [would] come back and go pull the next night.
P: So you would get to the office at about 6:30?
D: No, I would get to the office probably at 7:30 or 8:00, but there was not much
going on before then anyway. It would depend on what time we were going to
court. Some mornings I had to be there earlier.
P: Was the Gore team working out of your offices here?
D: I [have] a whole space back in there which we outfitted for them. We had
fourteen or fifteen [high-speed] outlets for computers, we had cable TV in every
room. We had about forty people in there.
P: These were what kind of people?
D: Lawyers and paralegals and secretaries.
P: All of them were hired by Gore?
P: Or were some of them your people as well?
D: My people were involved, obviously. There were a lot of people.
P: When you went on national television, were you vetted before? Did the Gore
team tell you what to say or not to say?
P: Talk to me about an issue that I am not quite sure about. I know that during this
Sanders Sauls decision, this issue of the doctrine of laches came up.
D: That is a bunch of [nonsense]. Laches is like leeches. Laches is an equitable
doctrine. [We] used to [not] have [a] statute of limitations in equity, so they
developed the doctrine of laches, [which stated that] you waited too long to bring
[the suit], that is what that basically means. None of that really applied here.
P: So you had not waited too long?
D: We could not have, we did not have a chance. We probably would have. Most
lawyers do, you know.
P: Give me a thumbnail analysis of Judge Sauls's decision.
D: It was 100 percent against everything that we asked for. The only thing that we
got acknowledged on was the fact that we represented Gore. Which is
incidentally, the best way to go up. When the judge rules against you on
everything, you know something is wrong.
P: You have got to appeal.
D: Well, somebody is going to look at it, because how could we be that wrong?
P: He said that there had to be a probability that the votes would be changed rather
than a possibility, that also he found no proof that the individuals at the
canvassing board had, in any way, violated their discretion.
D: This was a contest, the canvassing board had nothing to do with this. He did not
read the statute. Or if he did, he did not read the right part. That did not have
anything to do with the contest. What the canvassing board did does not matter.
At that point, you are going to count them de novo. That is what a contest is, [it]
is a recount. The canvassing board does not do it, judges do it. If they had done
it, their discretion would have been entitled to great weight.
P: At this point, are you sure you are going to lose to Sauls?
D: I was, I am not sure everybody else was. I think everybody was finally getting
the idea. He did not do too bad in the courtroom. I think he offended some of
the more doctrinaire Yankees who thought he was down-home. He was
throughly enjoying being above the fold on the cover of the New York Times. I
do not blame him for that, I enjoyed it too. How often do you get to do that? He
was polite in the courtroom. He did not treat us badly in the courtroom. He
treated us as lawyers should be treated.
P: One reason I ask that is because you were quoted in the paper after the final
arguments leaving the courtroom. You said, we are going to win.
D: Who in the hell said that? I never said that. What I said was, we were going to
win in the Supreme Court. If I said that.
P: So you knew at this point that this was, in some ways, a loss of time.
D: In my mind, it was all a loss of time. What he ruled was so wrong that I knew we
were going to get to count these votes under the contest statutes.
P: Some people said he used an older interpretation of the law.
D: There is no telling what he used. I will tell you what I did. You will love this one.
We had one lawyer that just bugged me to death, he wanted to sit at the counsel
table so he could get his picture in the paper I guess, whatever. We never let
him do it. Finally Sandy [Judge Sauls] is going to read his order and I knew what
was coming, so I said, you can sit right here where I sit and I am going to sit
around here next to Maury Greenberg, the [lawyer] from [the] Miami[-Dade
elections office]. He was sitting on my left. They are great people. We had a
good time. I moved around the corner of the table, sitting where I would have
been out of camera range for the newspaper shots. We were standing up or
sitting there listening, whichever it was, to Sauls read his order. He was reading
his order. They got a picture of him and Boies and I believe Deeno was sitting
around there. [They were] right in the middle of it, and they looked like somebody
had put sour-pickle juice all over them and I was not in the picture. [Laughing] So
I enjoyed that. I got him on the front page of a lot of papers. He was happy, but
he did not look it.
P: The United States Supreme Court is now going to get involved and they are
going to vacate the November 21 Florida Supreme Court order.
D: We were not expecting that to happen, really. We thought it might, but we were
not expecting it.
P: Why do you think they did that?
D: Because they wanted Bush to win. Five of them did.
P: In that order though, they do not deal with the Fourteenth Amendment, the equal
D: No, because they had not decided how they were going to get there. The five
people that ultimately decided it, if you will recall, concurred in [Antonin] Scalia's
[U.S. Supreme Court justice, 1986-present] little opinion, when he says, to allow
the recount to continue would somehow or other affect the president-elect's
legitimacy or something like that.
P: He said it would cause irreparable harm to him.
D: He is saying in effect, the president-elect is George Bush. When I read that, that
was my interpretation. I said, hell, Scalia says they have already decided Bush is
it. Now we cannot count the votes, the only way they can make us do it is to say,
since we have had all these proceedings and so on, we can continue the count
and Congress will not have the right to consider any other slate than this slate,
which they could have done. But they did not say anything about [an] equal-
protection argument. They never had in the history of the world. The five that
ruled that way were always against federal courts interfering with state issues.
P: At this point, you knew that the election was over.
D: No, I thought so, but I remember sitting in there with David [Boies] back in that
office. I said, David, we have got five people, you have got to get one of them in
the oral argument. At that time, they were still trying to decide if they were going
let Tribe argue. I said, I have been raising hell with [Ron] Klain and [others]. I
want you to argue it because you know what to argue. He said, I do not know if I
want to argue or not. I said, yeah you do. You have only got to convince one of
those five. He said, that is a twenty-percent chance. He said, [those are] not
bad odds when you are on the gambling table. We thought he had a chance that
[Sandra Day] O'Connor [U.S. Supreme Court justice, 1981-present] or [Anthony]
Kennedy [U.S. Supreme Court justice, 1988-present] [might rule in our favor.] It
turned out, we did not know about O'Connor's statements that came out later
[saying] how she was so disappointed when it looked like Bush had lost because
she could not retire or some comment that was quoted all over. But we did not
know that. [In] their [previous] decisions, they had nearly always gone with the
idea that state issues are state issues, and elections were always state issues.
We thought that [with] those two, [we] might have a chance to switch them over.
P: I remember Justice [David] Souter [U.S. Supreme Court, 1990-present] said after
everything was over, he said, if I had had one more day, I might have been able
to change Kennedy's mind.
D: Our thinking when we were looking at it was based on their decision, not on
anything else. One thing everybody overlooks is that one Republican at least,
Souter, who was the other? Two Republicans did not vote with them and never
P: Souter was with [Ruth Bader] Ginsberg [U.S. Supreme Court justice, 1993-
present] and the rest. The Florida Supreme Court on December 8 is going to
vote 4-3 and give an order to Judge Lewis.
D: Actually, they ordered Judge Sauls, who was the judge. They reversed this case
and sent it back to the judge. In that case, Sauls then recused himself. We did
not know this at the time. We thought we were going to have to go back and
face him. He recused himself and his wife made all these statements, which you
have probably read, to the New York Times and to CNN about how he hated to
see the Florida Supreme Court trample on the constitution and that they were
dirty guys because they had kicked him out as chief judge. He did not say it, his
wife said it.
P: That is very interesting. That is why I had asked that question earlier. He wanted
to hear the first case, now he is reversed and he does not want to be involved in
it. He probably should have recused himself the first time because of the conflict
he had with the Supreme Court.
D: That was not grounds for us to recuse him.
P: I understand, but from his perspective...
D: If that was his grounds then, he had them then too, either way, because he knew
it was going to the Supreme Court.
P: It ends up back with Judge Terry Lewis.
D: Lewis is assigned the case when it comes back, which is where we should have
been all the time. In fact, when he ruled against us and we went up and got the
time extended, we could have amended our complaint and turned it into a
contest and kept him as the judge. We could not amend the complaint after we
had filed the suit.
P: Here you are December 8, it has taken you one month to get where you need to
be and now you are coming up on the safe-harbor deadline.
D: We missed a lot of football games. We missed the SEC [Southeastern
Conference] championship, we were in a courthouse. I was running down there
all the time to see who was winning.
P: Well, it came out good [the University of Florida defeated Auburn].
D: Yeah, it came out good. Then I got to watch the replay sometime or other.
P: Were you surprised at the 4-3 Supreme Court decision? I have talked to some
journalists and people from CNN and others. They thought that the game was up
and that the Florida Supreme Court would not do anything. They were surprised
at the 4-3 vote.
D: I was not surprised. I would not have been surprised if it had been 4-3 the other
way. I felt from the oral argument that we had three and probably four and
maybe five [on our side]. I thought [Leander] Shaw [Florida Supreme Court
justice, 1983-present; chief justice, 1990-1992] might have gone with us, but he
did not. I figured the chief justice [Charles Wells, Florida Supreme Court 1994-
present], was not [going to go with us], from what he did. He capitalized the
argument that was against us in oral argument. [Major]Harding I figured, would
go with the chief justice.
P: So you had [Barbara] Pariente [Florida Supreme Court justice, 1997-present],
[Peggy] Quince [Florida Supreme Court justice, 1998-present], [R. Fred] Lewis
[Florida Supreme Court Justice, 1998-present], and [Harry Lee] Anstead [Florida
Supreme Court justice, 1994-present] on your side for sure, you thought?
D: Well, I was not sure about Lewis. I thought we had about the same chance of
getting Lewis as we did Shaw. After we did oral argument, I felt that Lewis'
questions indicated that he was looking at a way to square his idea of the law
with having us do the recount. I thought we had a good chance of winning when
we left. I think I made that comment privately. I thought we were going to win
either 4-3 or 5-2. But we could just as easily lose 4-3.
P: Why did they decide just to count the under-votes?
D: Because that was all we asked for.
P: Should you have asked to count them all?
D: Yes, the reason we did not do it and I am not sure that we ever really had much
of a chance to consider this, we did not figure we had time to do it.
P: At this point, you did not have time to count them all. Did you assume that if you
counted the under-votes that might be enough?
D: I think it would have [been enough]. Regardless of what all these after-the-fact
things show, if it had been properly counted by judges, we would have won on
P: Why did the Florida Supreme Court not set a standard?
D: I do not know. In that argument, we did not ask them to. I argued that we should
argue for them to do it again because we argued [for] it in the first case and they
did not. I would have raised it again in oral argument. I think we might have had
something in the brief on it. I wanted to argue it before Terry Lewis. It was late
at night, I said, David [Boies], we need to argue the standard. He said, no, we do
not want to argue that, we do not have time, the judge has his hands full. I do
not think we will argue it. He [Judge Lewis] may set a standard. I think if any of
the judges had questioned him, he would have made a ruling. We did not ask
him [to do that]. He was the one who the court left to make the ruling. They left
the ruling to the trial judge and the reason they did it is because there is no
uniform way to do it, it is different in each county. Theoretically, we had different
types of optical machines. They are relatively easy when you have a standard.
Then you have those old, no-good machines and you have got a standard. I
think we even had the old lever machines in Martin County. Then we had Union
County, which was easy enough [only county with paper ballots]. We had a lot of
our cases on them. So, there you are.
P: Judge Lewis immediately asked them to start the recount. Could all sixty-seven
counties have finished in time?
D: Yes, the only one that was dragging their heels was Duval [County].
P: They had a problem separating the under-votes.
D: That is what they said, they had to write to Saudi Arabia to get the software or
something. They could have borrowed Miami's. They were not using it.
P: Once you get the decision from the Florida Supreme Court, you see that one of
the earlier parts of your appeal was part of their 4-3 decision. They made it clear
that Judge Sauls did not examine any of these disputed ballots.
D: We argued. You are talking about Sandy [Sauls]? He refused to. That is in the
record. I asked him, David asked him, we asked him every day. Count the
votes. That was my big pitch. [I said,] count the votes, judge. It does not matter
how you rule. If you rule that we should not count them, fine. But go ahead and
count them, we are killing time.
P: The argument has always been that the Florida Supreme Court was completely
Democratic and that everyone knew how they were going to rule.
D: What was Major Harding? He was a Republican. He had become an
independent after he was on the Supreme Court. He was the first appointment
that Lawton made. He was a Republican all of his life, from Jacksonville, a circuit
judge. I will tell you a story that is funny as hell. Lawton had just gotten to be
governor. He and Rhea [wife of Lawton Chiles] had Terese and me and Julian
Clarkson and his wife, we were old friends, we were classmates, we had been
together forever, over for lunch. About the second week he was in [office] or
something. We were back in the family dining room waiting on Law[ton] because
he was always late. If he was ever on time, there was something wrong. We
always started before he got there. He comes in the back door there. He says,
hi, I just made my first appointment to the Supreme Court. I said, who did you
appoint? He said, Major Harding. I said, he is a damn Republican. He said, he
is? I said, yeah, why don't you ask somebody about these things? He said, I
will, I will, I will. He said, he is still the best one. Rhea said, yes, I looked at the
video of the interview and I thought he was great. Julian's wife says, how can
you talk that way to the governor? I said, Governor, your honor sir, Mrs.
Clarkson wants to know how I could talk to you that way. He looked at me and
he said, if you talked any other way, you probably would be under the table. We
had a big chuckle about it. I look back on that and think when they say they are
all Democrats that Lawton did not [care] whether they were Democrats or
Republicans. [In] most instances the people that were sent up were all
Democrats anyway, from the list that he had to choose from.
P: The argument that it is a liberal court, is I think, undermined by the 4-3 vote, is it
D: The argument that it is a liberal court is undermined by all of its decisions. They
are very consistent in attempting to reach a consensus on the legal issues. They
do not stray much, they really do not. One of the things that really bugs the
Republicans is they will not expand to accommodate their unconstitutional laws.
They say, we always did with the Democrats. They cannot point to any [that] this
P: According to some scholars, the real activist court is the United States Supreme
Court, not the Florida Supreme Court.
D: In this case, that is exactly right. In this case, they just took it over and did it.
You do not hear them complaining about them being activist. Then whether you
did a good job or not depends on who you were for. I have a cousin, one of
those west Florida guys that has become a Republican. He sent me an e-mail.
He is 77 or something. He said, Dear Dex, we are so proud of you, you are a
great lawyer, you are doing a wonderful job. I hope to hell you lose. Love,
[Cousin]. I thought that was great. I loved that.
P: What did you think about Chief Justice Wells's dissent, a rather blistering dissent,
in which he said that the Florida Supreme Court decision had no foundation in
law and would lead to a constitutional crisis. He, as we all know, is very
D: Wells is a good judge. He is very focused and believes he is right when he
believes he is right. I do not have any problems with him saying that. He was in
the minority. Minority [of the] minority, nobody else said that.
P: His dissent was quite different, was it not?
D: Correct, but there is one thing too that needs to be [talked about]. If he was going
to rule politically, if he was going to rule [for] Gore and [against] the Republicans,
he had to face, as chief justice, the legislature, which is after the court. He is the
one that has to go over there and sit down with Feeney and whoever. If he really
thought they should win, then I think it was incumbent on him to write an opinion
like that. They [Republicans in the Florida House] are after them. You know,
they are trying to gut them [Florida Supreme Court]. They do not think you ought
to have a court. They do not know anything about the separation of powers,
[they] totally ignore it. There is nobody in this administration that seems to have
any respect or even concept of what the separation of powers doctrine is.
P: In fact, Feeney said the decision showed a tremendous lack of respect for the
D: So that any time you declare a law unconstitutional it shows a tremendous lack of
respect for the legislature. What it shows is a large amount of respect for the
P: It was very clear from this point on that the Republican legislature is out to get
the court. I think Justice Anstead is going to be in trouble. Why has the bar
association not done anything?
D: The bar has done a lot to support the Court. You do not see a lot about it, but we
have got the Independent Judiciary Commission, we have done all these things.
I was chairman of the Judicial Selection and Tenure committee of the bar. We
did a lot of work in trying to help. To some extent, they are after the bar more
than they are the Court. They are going to try to take away the Florida Bar and
make it like the doctors where we could never disbar anybody. It would be like
the doctors, they would kill you twice before they would even get your case up. In
the bar, we have large numbers disciplined every month. Not enough, however.
P: Now the Bush team obviously appeals to the United States Supreme Court.
D: I thought they stopped us even before they got the petition up there.
P: Is that right?
D: I do not know, go back and check. We did not know it was there. They
P: Why did David Boies replace Larry Tribe as lead attorney before the U. S.
D: One of the reasons was that [I] and others argued strongly that he should. He
knew the case, he had done a great job arguing it in the Florida Supreme Court,
and he was the best possible person for us to have. You do not want but one
person arguing the case. I think there was a feeling that Tribe had not done a
particularly good job in the first case. I do not know that, but I think they
expected him to do a better job than he did. I thought he did all right. He
probably did. I think they thought David would be a new face and he would not
be somebody that was in the court all the time. He would be bringing in a
different point of view.
P: Although Tribe had more experience before the Supreme Court.
D: Tribe had a lot of experience before the Supreme Court.
P: How did David Boies do in his forty-five minute presentation?
D: I thought he did extremely well, particularly recognizing that he had five people
that were after him. Scalia, particularly, is always going to be after everybody.
He is against some he is for. I loved Joe Klock getting them all mixed up [Klock
got the justices name wrong. He called Scalia as Brennan.].
P: He will never live that down.
D: He probably likes it, Joe is kind of a weird guy. He is the one Sandy D'Alemberte
[President of Florida State University, 1993-present; FL state representative,
1966-1972] punched out, you know. That was how Sandy became dean of the
law school. He was in that firm, he was the big star in that firm. He was doing all
these public-service things and Klock wrote him a memo, he had been after him
and writing him about not having billable hours and all this. He is the leader of
the firm. He writes one to Sandy about him running around on his motorcycle,
going to political meetings while everybody was working but him. I mean, it was
blistering. Sandy got it and he came charging in his office and said, stand up,
take this. He stood up and he just poled him. Broke his nose, knocked him out
on the floor and they had to get a ambulance and haul him off on the stretcher.
They said they had to hold Sandy back; he was still after him. He left the firm
and got a job up here [Tallahassee].
P: That apparently did not get in the papers.
D: Yes, [it did,] back years ago, it has been a long time. Then Sandy after that
became President of the ABA [American Bar Association], dean of the [Florida
State University] law school, and president of the university [Florida State
University]. [The] best thing he ever did was hit Joe Klock.
P: When you go to the U. S. Supreme Court, how did you decide on what
arguments to make during this forty-five minutes?
D: I did not really participate in that. Once it left here I was out of the picture. They
asked me [if] I [wanted] to go and I did not want to go. I did not even want to go
up there because I was not going to argue and I was not going to sit in the court
and listen to it because I did not want to. I did not really make any arguments
one way or the other.
P: The crux of the argument was essentially what you have been arguing all along,
that the votes have to be counted. The Republicans are arguing as they have
before, it is a violation of the Fourteenth Amendment, and the US 3-5 decision.
D: I do not even know that they did that much arguing on the equal protection. That
came from the bench as I recall. I am not sure, I would have to go back and read
the transcript, but I do not recall them making a big argument about equal
P: Certainly it was presented earlier, but may not have been reinforced at the last
D: I do not remember them stressing that. They may have had it in there.
P: Klock did talk about changing the rules after the election was over. That seemed
to be a major point.
D: They had argued that before, too.
P: The final decision is 5-4.
D: Whatever it is, it is really 5-4, that is true.
P: Some people argue it was 7-2.
D: Yes, you could argue that. But it was basically 5-4, where it was to begin with.
P: What is your sense of this decision in terms of the legal and constitutional basis?
D: It will stand there by itself like Dred Scott [Dred Scott had sued for his freedom
and the U.S. Supreme Court ruled that he must remain a slave]. They may cite
it, but they will never follow it.
P: This is October 31, this is the second interview with Dexter Douglass, continuing
our discussion of the 5-4 U.S. Supreme Court decision, the Court remanded the
case back the Florida Supreme Court. Why did they do that?
D: They just said that the Court, basically the majority wound up saying that the
Court should have an opportunity to rule on what the uniform rule was going to
be and that they had not. That is basically what it was.
P: The Florida Supreme Court did nothing and just said that was the purview of the
legislature. Why do you think they acted in that way?
D: Well, it was after the fact. I thought that the best opinion that Shaw ever wrote
was a concurring opinion. That was the best opinion I think he ever wrote. It
was a very accurate portrayal of what happened. Another concurring opinion
that was good was Pariente's, I thought hers was good, too. Shaw's was
outstanding. He explained why he voted in the minority on the 4-3, in effect, he
said we could not get the votes counted. We did not have time. He put that in
there. I think that is why I was reading him as one of the doubtfuls. I thought it
would have been 5-2 or 4-3, or we could have lost 4-3. I had him in the doubtful
column. I knew philosophically he did not want to rule with the Bush-ites, but
called it like he saw it, I thought.
P: Justice [Stephen] Breyer [U.S. Supreme Court, 1994-present], in his dissent, said
he thought the case should be remanded to the Florida Supreme Court to
resume the recount under a uniform standard. That was obviously a minority
opinion. Was that a possible remedy?
D: Yes, but it was not an effective remedy. It would not have made any difference.
P: Because of the December 12 date?
D: Or December 18, whichever one you chose. It was going to wind up in
P: Let me make some general comments about the court's decision and get your
reaction to it. One argument that was made, and I think both you and David
Boies made this statement, that it really did not matter what the Florida Supreme
Court did. If they had in fact, set a standard, they would have been legislating,
therefore the court would have overturned them. By not making a standard, it
violated the 14th Amendment.
D: I think that [would have happened] had they made a standard, which we wanted
them to do. We just wanted them to interpret the statute, to apply it to the
situation involving just the machine vote, nobody was really contesting the
recount of the paper ballots or the scans. That is the only one that was really in
question in our suits. They did not do that. I think we were right, it would not
have mattered. If they had come in and set the standard, the [U.S. Supreme
Court] would have said that was a job for the legislature and you have
overstepped your bounds, like the [Bush lawyers] tried to [argue] in the first
instance by saying you did not interpret the statute, you made new law. That is
what became a PR [public relations] deal for the [Republicans] and this is what
[James] Baker was yelling about, [saying,] you are writing the law, [it was]
unbelievable. The Supreme Court made a [correct] decision when they
[interpreted the law]. They have the right to do that.
P: They would argue that the changing of the date was making law, is that correct?
D: Yes. They said it was not interpreting the statute, it was rewriting the statute.
That is the argument you always make when they interpret a statute, if you lose.
P: There has been some criticism of the Florida Supreme Court. In the media,
several people said that the Florida Supreme Court did not respond effectively to
the initial remand from the United States Supreme Court.
D: I think that is just a fly in the wind. They did respond after they made their
opinion. They wrote a response. There was no need for them to respond. It was
highly irregular, to intervene and say tell us how you did this, or why did you do
this? If the [U.S. Supreme Court] read the opinion, which they did not, they could
see how they did it. It was kind of ridiculous, it was obviously an interpretation of
the statute. Same one we had argued all the way through. I think the [Florida]
Supreme Court was probably kind of like me, when we write the next opinion, we
will have the response.
P: Another issue that David Boies talked about is the equal-protection clause, that
the problem was courts had been applying a general standard for almost every
death penalty case, for example, the reasonable man standard. Why did the
court not deal with that issue?
D: They would not have been able to reverse it.
P: Is that a legitimate argument, do you think?
D: Yes. But they ruled the other way, so now we have a special standard that
applies to elections.
P: They said that just applied in this case.
D: That is right, which means, we wanted George Bush to be president.
P: Will it now be applied as a precedent?
D: I doubt it very seriously. It is one of those cases where they said, he wins and
there will not be any precedent here. People will cite it. I had a case in the
Supreme Court of Florida, an outlandish political ruling in a case. It was on
punitive damages. It was a 3-3-1 opinion, I lost a couple million dollars. They
cited [it] all the time, but they always distinguished it since then. There must
have been fifty cites to it that are in Shephard's [legal reference book] and
everyone distinguishes the case. It is one of those that when the Supreme Court
speaks, [it is] finished no matter whether you agree with the law or anybody else
ever cites it or not. Like I said, there are a lot of Supreme Court cases which
they do not follow.
P: The New York Times for example, cited a death penalty case in Georgia where
there had obviously been unfair use of the penalty in one county. They got the
death penalty in one county and in another they did not. The U. S. Supreme
Court voted 5-4 and said that was not in violation of the Fourteenth Amendment.
D: It probably was not, they were probably right, [and would be] in most any case, if
you think about an issue that deals with a factual issue in one county. You have
juries, and there is no requirement that juries apply the death penalty or not,
except on the evidence.
P: They were right in the Georgia case, but wrong in Bush v. Gore?
D: That is correct and the only reason you would get four votes against the Georgia
case would be [that] there would be four people that oppose the death penalty.
Legally, the issue is pretty clear. If you started saying well they got $2,000,000
over here in this case, but in a similar case, they only got $1,000,000. Therefore
the one that got $1,000,000 [was] denied equal protection. That really does not
P: Why was this decision per curiam [court decision written by the court as a whole,
rather than by a specific justice]?
D: Because nobody wanted to be tabbed as the author.
P: Somebody must have written it.
D: Oh, I think Scalia wrote the U.S. Supreme Court decision. That was indicated
when he wrote the little blurb where he said George Bush was already elected.
P: In Justice Breyer's dissent, the court ruled that there was not enough time for a
remedy and Breyer said, the reason is because of the United States Supreme
Court. Our intervention is what held up the process.
D: That is true. He was right.
P: If the U.S. Supreme Court had issued a decision early on rather than a remand,
they would have still been 5-4, right? That was not going to change.
D: I do not think we were going to win.
P: Let me read some comments about the decision. Many academics say that the
decision was flawed. The New York Times said that the William Rehnquist [U.S.
Supreme Court Justice, 1972-present, Chief Justice of the U.S. Supreme Court,
1986-present] court overlooked the bedrock principle that every vote should be
counted and it ended up eroding public confidence in the court. Do you think that
is a fair judgement?
D: It probably is, but the one thing they all overlooked is that under the rule of law
that we operate under, once they have decided it that is it. That is the rule of the
law and we all have to accept it. We can complain about it, but that is the way it
is and you might as well say Hail to the Chief to George W. and wish somebody
would teach him to read better.
P: What was your reaction to Justice John Paul Steven's [U.S. Supreme Court,
1975-present] dissent? It was rather strong, and said the decision was wholly
without merit and he also argued that it undermined the confidence of the public
in the court.
D: That was his opinion and I think it was shared by a lot of people. The problem, if
you are in a case and the court rules against you and you say, that was the
wrong decision, everybody says, you do not count, you were in the case. Well,
that does not destroy your objectivity altogether. Obviously, you are
disappointed you lost the case and you think you were right. I have been very
careful as a lawyer in the case not to really take on the U.S. Supreme Court on
the basis of personal [opinions]. I can criticize the majority opinion, I can criticize
anything else about it and say that I like Breyer's opinion. I loved Ginsberg telling
them they were all SOBs. She got her dander up pretty good.
P: A lot of the dissenters thought they should have never taken the case in the first
D: I think we all did, except the five [Supreme Court justices].
P: You might not want to make these statements, but let me read you some
statements by some other people. Alan Dershowitz said that the decision was an
egregious error and the most corrupt decision in Supreme Court history because
it is the only one that was decided on the political affiliation of the litigants.
D: Let me answer that. He knows a lot more than I do. There have probably been
some other politically decided decisions in the Supreme Court.
P: I would think so.
D: It has been there a long time. You would have to even say the first one, Marbury
v. Madison [1803, established U.S. Supreme Court as final authority on
interpretation of the Constitution] was a political decision and it established what
the separation of powers meant. All decisions to some extent have some
political overtones, but it was the first time they have had an opportunity to elect
the president. That is correct. They came close with the [Rutherford B.] Hayes
[U.S. President, 1877-1881 ]-[Samuel] Tilden [New York governor, 1875-1877,
unsuccessful Democratic nominee for president, 1876] election which was
decided with our crookedness in 1876, but the Court didn't decide it. We made a
deal at Archer and got rid of the Reconstruction. Louisiana made their deal and
South Carolina made theirs. Tilden got thrown under the bus, but he agreed to
be thrown under the bus, as I recall [from] what I had read, that Tilden was
philosophical about it to the effect that he said, if it was going to restore the
Union, he would stand by it. He won by a much bigger percentage of vote than
Gore did. He had a 350,000-vote margin in that election which was a lot of
votes. [We were] not without precedent as to what would happen, it was really
was how they came up with the statute that got this safe-harbor provision
because there was not one back then. The other difference was that a lot of the
voting took place under gun.
P: It was during Reconstruction, and the South was occupied by the military.
D: The troops voted and there was a guy here that bragged that he voted seventy-
five [times] and they indicted him. He voted for the right side, the Yankees. I
forgot his name now, but he disappeared, they never prosecuted him. He wound
up somewhere with a government job with the United States government in
Washington. You know, all that went on. The only real good stuff about that that
I read was written by Hank Drane. Hank did a little book with a collection of
interesting stories about certain governors. He took the governor that was
involved there and weaved it in and showed this. And he had a lot of this stuff in
it. I had known it from [Samuel] Proctor's lectures but I do not think I ever saw it
written down like Hank did. He was a journalist that wrote for the [Jacksonville]
Times-Union. He may still be alive.
P: Let me read you Vincent Bugliosi's [attorney; author; prosecutor of Charles
Manson case, 1970-1971] comment. He said the five justices were criminals and
they had been involved in the theft of the presidency.
D: Everybody is entitled to their opinion. You would have to call them maybe
politically criminal. I do not think they were [truly criminal]. They were not paid.
If they were, they were already paid when they got appointed.
P: Judge Richard Posner [U.S. Court of Appeals; author of Breaking the Deadlock:
The 2000 Election, the Constitution and the Courts] had a fairly moderate take on
everything. He said the decision was a pragmatic one but not a legal one and it
saved the country from a constitutional crisis. Do you think there would have
been a constitutional crisis?
D: No, no more than there would have been the way it came out. Everybody [was]
talking constitutional crisis, I was on a panel with David [Boies]. We were the two
on our side and then they had Barry Richard and the guy who is now the Solicitor
General on the other side, whose wife [Barbara Olsen] was killed in the [terrorist
P: Ted Olsen [attorney for George W. Bush in 2000 election].
D: Yes. This sort of thing was discussed. I think that may be a fair analysis of it, as
not being legal but in response to that, it was legal. The reason it was legal is
because the court had the authority to do what they did. They did not assume
authority because under our system, whatever they say is the last word in the
law. If you accept that as a premise as to why we have a rule of law, [then]
somewhere it has got to be final. Okay. Now you can argue [that] how they got
there was wrong. You can argue all of these things and say it was not legal until
they did it. It reminds me of the story where the guy gets up in the Supreme
Court of Florida and he says, Your Honor, you cannot consider this, the rules say
so-and-so. The court responds, when we write our opinion, you may have a new
rule. Your answer to that is, oh. You do not say you cannot do it, you said, I
suggest that the rule requires you do it this way. You throw it in their face and
somebody had guts enough to throw it back at you. I thought it was kind of funny.
I forgot who that was, but that actually happened.
P: Let me read you a journalist's account of this election. He said this was an
election that brought out the ugliest side of both political parties. The Democrats
were capricious, whiny, wimpy, incompetent. The Republicans were cruel,
presumptuous, indifferent, disingenuous. Both were hypocritical, the media was
lazy, and there were too many hired gun lawyers.
D: He is a sore head. He just did not like anybody. [He took] a little truth and made
it into a non-truth. Nobody was all that bad. Obviously the PR battle cast the
Democrats as whiny. They lost that battle with the Republicans who were mean
and they did not hesitate to lie and they did not hesitate to say bad things and
send people down to disrupt the counting and that sort of thing. I do not think I
would go as far as he did. It was politics as usual, as far as the two parties were
concerned. You have got to be able to take it if you are going to be in politics.
As [for having] too many lawyers, there probably were too many lawyers. There
were not too many on our side, we did not have that many. We were in pretty
good shape. Our team itself was relatively small for the amount of litigation.
P: Who paid your fees?
D: The Gore fund or somebody did.
P: I notice that Joe Klock sent a million-dollar bill.
D: The state paid him. That was an absolute travesty. If he was worth a million
dollars, Boies was worth $82,000,000 million and I was even worth more than
[what Klock got]. That was just absurd, that fee.
P: Was it because he overcharged?
D: Yes, he overcharged in the services rendered. How many state lawyers do they
have? I have been hired by the state in cases and a lot of people have. These
are the same people that complained about the contingent fee [the lawyers got]
for getting the billions of dollars from tobacco, saying how horrible it was, yet
these [lawyers] put up all the money to finance the litigation. They put up several
million dollars of their own money not knowing whether they were going to win or
not. The same people as the Klocks and all of these, you are talking about the
guys that [have] all this money. At least, they got something for [the contingent
fees]. The state wound up with all the people that voted against getting [the
tobacco money], spending it to bail [them out] and give tax relief to rich people,
including tobacco. Big Tobacco is sitting right there with George Bush. [Karl]
Rove [President George W. Bush's Chief of Staff] was nothing but a lobbyist for
tobacco. [With Dick] Cheney [Vice President of the U.S., 2001-present;
Secretary of Defense under President George Bush, 1989-1993] it is the same
thing [with oil]. That is the way it is. It is the government. I was in the [tobacco]
litigation too, but [with no fee].
P: One argument has been that the Republicans outworked, outspent, and
outsmarted the Democrats partly because they were more committed to Bush
than the Gore people were committed to Gore. They thought they were fighting a
holy war. Is that a fair assessment?
D: I do not think it is a fair assessment of Gore, I think it is a fair assessment of the
Republican people. They considered it a holy war because it involved their
money. They had to get people like Clinton out of there. What he was doing was
saving the government, reducing the debt, and still taking care of the poor. The
first thing they want (all of these people that are married to the financial end of
things) is unemployment. You notice the stock market always goes up when
unemployment goes up. It is an oxymoron, but it is true.
P: One Republican said, literally, we are fighting for a righteous cause.
D: Yeah, well, so is Osama bin Laden [Saudi-Arabian terrorist, leader of terrorist
network AI-Qaeda]. All wars are fought for a righteous cause. I always loved
[Abraham] Lincoln's [U.S. President, 1861-1865] quote. I think it was Lincoln.
Somebody asked him, is God on our side? He said, I do not know but I sure
hope we are on his side. So they are all holy wars.
P: What part did Bob Butterworth [Attorney General of Florida, 1986-present] play in
the campaign after his first initial ruling on certification? We really do not hear
much from him.
D: Very little, very little.
P: Were the Gore people disappointed that he did not support them?
D: You will have to ask them.
P: Where was Bob Graham [U.S. Senator, 1987-present; FL governor, 1979-1987]
in all of this? He does not appear to be very prominent.
D: He was not in our view. He was not involved in anything we were doing.
P: Why would he not be supportive of Gore in his home state?
D: I have no idea. I do not know that he was not. He was not around us. I was in a
relatively narrow phase of the political aspect of it. In fact, I was not brought into
the inner circles of the political discussions until after the fact.
P: One of the things that has intrigued me is why Katherine Harris would not use her
own legal staff. Why would she hire a Democrat from Miami, Joe Klock?
D: I have no idea.
P: Klock said that throughout this he was neutral. He said one time, we do not have
a horse in this race.
D: Judge Lewis looked at him and said, ha! He was about as neutral as Hirohito
[Emperor of Japan, 1926-1946] was when they dropped the bombs on Pearl
P: There were complaints by African-American voters that there were examples of
discrimination. In Leon County there was a highway patrol stop that some have
said was an attempt to keep voters away from the polls.
D: That was just seeing ghosts. In Leon County, that was certainly not planned to
P: Some of the African-Americans said it was.
D: Well, they thought it was. They were seeing ghosts. I do not think the African
Americans have ever been intimidated [in the recent past]. Well, they have not
been intimidated here in a long, long time.
P: The Civil Rights Commission did a report on discrimination in voting and they
concluded that African-American voters were ten times more likely to spoil their
ballots. Something like 14.4 percent of black voters in the state had their ballots
ruined, that more blacks were on the felon list. There is a long list of allegations
in this report. Do you think there is any credibility to that?
D: I think there is credibility to the felon list. I think it was sloppy work. [It was]
deliberate, sloppy work. When you get a felon list, most of the felons that are still
around are African-Americans. That is a fact. I think that [to] most of the people
involved, it was sloppy, [but] to somebody it was not.
P: Should felons be allowed to vote?
D: Some states allow prisoners to vote. I have always thought they should have
their civil rights automatically restored after a certain period of time and they have
had no additional criminal record or activity that they are convicted of. Some
states have automatic restoration of voting rights]. I think the feds do now. They
still count as felonies in some of the state laws that prevent you from getting a
liquor license and things like that unless you get a pardon. You can get one from
the state as well. Our pardon system is antiquated and needs to be revised. We
tried to do something on this in the constitutional revision commission in 1978
that I was on. That is the only place it can be done because the constitution
requires this. [It] used to be [that] you lost your civil rights if you were convicted of
petty larceny and that was taken out. The reason for that was primarily to [keep]
freed slaves from voting, to get back to the white primary, I think historically. I do
not really think that in Leon County there was any conscious effort. I do not know
that that is true in Duval County. I think [in] Duval County the results themselves
show that there were just too many blacks, [whose] votes were excluded as over-
votes. When you look at them they were the ones on this machine that had
voted for other after voting for Gore, but did not have anything in it other than
Gore. They would write that in or something, like [they did] on these paper
P: The instructions were vote every page, so they voted on every page. The ballot
itself was not constructed very well.
D: You probably cannot say anybody set out to disenfranchise them but it certainly
worked that way. If you stop and think about it, the poor, uneducated people and
old people who cannot see or [have] lost some of their faculties are the ones
whose votes are going to be spoiled anyway, [or] more [often]. There are a lot
more African-Americans that do not read well, do not write, do not follow
instructions. Some of them have no education because they were not afforded
any. The worst thing you can do is take the argument they did, [which was], if
you do not have sense enough to vote, your vote should not count. That is
absolutely poppy-cock, because there [are] a lot of very, very intelligent
Republicans that do not have sense enough to vote. We got rid of the poll tax,
we got rid of reading the constitution [as a test for voting]. You know the old
story, you would come in and they would ask you one question. What is the
executive branch of government? The black guy comes in and he would say,
now explain to me the separation of powers and when was the Fourteenth
Amendment and what is it? He says, I am sorry, you are just not qualified to
vote. Consequently, the idea that people do not have sense enough to vote is
P: Is the term disenfranchisement a little harsh?
D: That is just a sweet word to say they did not let them vote or screwed up their
P: It was certainly true, as you talked about, with the grandfather clause and the
D: They do not have that any more. It is not state-sponsored. It is a misapplication
of the law in some fashion now, but it would not be disenfranchisement because
they had the right to vote and went to vote. It just did not count. I do not think
disenfranchisement would be the right word. [It would be more accurate to say
they were] deprived of their vote by the intent of their vote, they lost their vote.
P: The argument is that they were deprived of their vote by the system, whereas
some people argue, as you just pointed out, that if somebody goes in and votes
for all eight candidates for president of the United States, as was done. In fact
there was one vote for Cheney-Gore-Nader which would have been an
interesting administration. If somebody fouls up the vote in that context, they
have in effect denied themselves the right to vote, have they not?
D: This is the voting reform. In our county here, [if] you voted and you did that [the
machine] kicked your vote out. You look at it and the guy comes over and says,
your vote did not count. He said, but I voted for all these people. He said, you
cannot do that or it will kick back out. You should either vote for one or none.
Then he could tell him that is legal. Then if the guy wants to vote for more than
one he knows it is going to be thrown out.
P: While we are on that subject, what do you think about this election reform act that
was passed by the legislature?
D: I have not really studied it. I am certain when we get around to it, it is going to
have some things lacking in it. Anything, just about, would be an improvement.
P: Let me just mention a few of the things that are in the act, such as a provisional
ballot. Do you think that is a good idea?
D: That is an admission that you cannot keep records. I am not necessarily in favor
of a provisional ballot because it affords the opportunity for false voting. I go to
the wrong precinct, so I vote a provisional ballot. Should it be counted in the
precinct where I should have voted? We are going to have a lot of that sort of
nonsense. I am sure that provisional voting within itself is advocated by a lot of
people that think that the blacks were [disenfranchised], but that is answering, in
effect, the felon thing. Not [problems with going to] the wrong precinct, this sort
P: One thing they did do was to get rid of the second primary.
D: I think that was for this one election to make sure Jeb Bush, president of the
student body, served another term.
P: It was totally political?
D: Absolutely, had nothing to do with anything. If you want to have one primary we
should go back to the time when we had it, which did not work, but we had a first
and second choice so at least you wound up with something similar to a majority
P: Or you could move them to the spring.
D: Well, we had them in the spring for years, they were in May. But that was before
we had any Republicans. The Democrat primary was the election so you did not
have to waste a lot of time in the hot summer running around trying to get votes.
Then they got Republicans so they moved them up to September. It was too hot
to campaign [in the summer]. Of course, all [the] campaigning changed [with]
television. That is the only thing that counts now.
P: You would not do like Lawton and walk across the state anymore.
D: I am not sure any of the candidates we have mentioned could make it. [They]
could not walk that far. First hot day they hit out there walking in those blackjack
woods between Crestview and DeFuniak Springs in the sand, we would lose
them. Somebody would have to run by and give them Gatorade.
P: I understand they lost a few of the media representatives too.
D: Most of them [would] probably ride around in an air-conditioned car or something.
I walked with Lawton for a few miles a couple of times on that walk. [They] got a
whole bunch of people lined up for him on the way. I did not think he could win
P: I do not think he thought he could.
D: Yeah, he thought he could, he really thought he could. I think that the idea of
walking, which he did in Polk County, [originally] was Rhea's. She is probably as
good a politician as anybody [during] those times. She could read the polls and
tell you what they meant and the rest of us could not. We did not know what the
hell they meant.
P: It would be interesting, without a second primary, we would not have had Chiles,
[Reubin] Askew [Florida governor 1971-1979], or Graham.
D: And many, many others. Actually the guy that carries the first primary in about
eighty percent of the elections wins, or eighty-five [percent] or something. I saw
figures on it. That includes all races. In a race like governor or U.S. Senate, that
is not necessarily the case.
P: An element that was not addressed in this bill was the non-partisan status of
election supervisors and restrictions on, for example, the secretary of state being
involved in any political activity. Do you think that should be part of the law?
D: I think the non-partisan idea for the supervisors [should]. [The] Secretary of
State, from now on, will not be elected. They are going to be politically attuned to
some extent. The legislature could create the method of appointment, it could
make it non-partisan, but they will not.
P: Should the legislature now set a uniform standard for counting votes across the
state rather than using the voter's intent?
D: No, I think voter's intent is still valid. I do not think this case throws it out.
P: One suggestion was that the law is very unclear in two or three cases,
particularly what a recount means. If an automatic recount is triggered, is that a
hand recount or is that a recount of machine totals?
D: The automatic recount is fine, but a candidate, if the vote is within a certain
percentage, should have the right to have a hand recount, or the party should
have the right to demand it if the election is close enough. [A] hand recount is the
only accurate count. It is going to have flaws in it. Time and again they have
shown [with] every kind of machine you use and everything else, the most
accurate vote is the paper ballot, but it requires honest counters. [end of side 2,
P: One aspect of reform is getting new voting machines. Do you think the new
optical-scan voting machines, if they are now used across the state, will eliminate
D: It will not eliminate the problem, but it will certainly minimize it. They are much
more accurate and you have much more of an opportunity to correct your ballot.
I see some are adopting these touch-[screen] deals. I do not know enough about
them. I think it would be easier to rig them than it would the optical scans. I am
afraid of all computers being rigged including mine. That is just an old west-
Florida suspicion, you know.
P: It has validity because a lot of older people do not know how to use computers
and they are much more expensive.
D: Much, much more expensive. I think the optical [scan machine], for the whole
population, is better, because it is a paper ballot [that] you have some mark
[which creates a paper record]. In the old palm cards they used to have when
they had the machines [where you] voted la, voted 2a, you can actually go in
there and have your people set up as to who you are going to vote for, people
that are slow or cannot read.
P: What if the power goes out and you lose all your votes in the computer? Another
problem is that we are going to end up with different kinds of machines anyway.
It seems to me there ought to be a uniform machine for the entire state.
D: The reason there [will not be uniform machines] is because the state is not going
to buy them. If the state bought them, there would be enough lobbyists around
here retiring on both sides of the issue, just like they were with the lottery.
P: Let me ask some overall questions about this. Are you glad that you had the
opportunity to have this experience?
D: Oh, yeah. I originally turned it down, then I got to thinking about it. Hell, I am
seventy years old, I have not had a chance to be in anything quite like this. I
have been in a lot of stuff but this is something that would be interesting and you
could never duplicate. From that standpoint, I am certainly glad I was in it.
P: How has this changed your life?
D: I quit practicing law as much. I love to go make speeches now. Let Tom
[Thomas Porter Crapps, Mr. Douglass's associate] do all the work. I still do
some trial work, I have not retired, but I have quit taking cases of certain types. I
used to take every thing that walked in the door. I have at least gotten around to
not doing that. You know, [there is] one thing that happened in this case that I
will remember. I was the last guy to talk to Gore the night before he announced
that he was pulling out. He had not decided to pull out. Klain called me and he
said, look, the vice-president wants to speak to you in private, on the phone, after
you have read this U.S. Supreme Court decision and he wants you to give him
your opinion of what could be done by the Florida court and the prospects of it.
Fine, so about 1:00 in the morning, maybe it was later, I cannot remember. I was
sitting right here, I do remember that. I called him, the number he gave me, he
answered the phone. We talked. He really, I could tell, wanted to keep going.
He was wanting me to give him some hope or something. I said, well, there are
two things I want to say. Number one, I do not think the Florida Supreme Court
is in a position to keep the case going to the extent that it could result in your
election, even if they should do what would be very, very disastrous for them in
this state, politically. [If they came] in and set up some system whereby they
counted the votes and you should succeed and then they ordered that this go up,
you are still going to have at least two slates going up. That is going to put it in
Congress. When it gets in Congress, you win the Senate, you lose the House
and then the House elects and that is it. In the meantime, if this continues and it
results that way, if you became president with all of the attacks that are being
made about stealing the election and all this, I do not think you would be in a
position to do anything, [and it would] disrupt the country as it went through
Congress. So I am not the judge of that, but we had a discussion. I am giving
you the [upshot] of what I said. In response to the question about the Florida
Supreme Court, I went over each one of them with him and how I thought they
would respond. I pointed out to him that the chief justice was under difficult
political pressures, in my opinion. He had to deal with the Republican legislature
who was attacking the judiciary. He was torn with doing [his] duty to preserve the
system of the court, the institution, and preserve the third branch [of
government]. He had that pressure on him, so he was a little different than the
rest. [I said], you have got two or three people on there [who] think that this was
such a horrible decision that they would write something reversing the U.S.
Supreme Court, or they could [try] anyway. Then we talked on it for awhile. He
said, thank you, I am going to decide and I will make my announcement in the
morning. We were all here and went back there. He called and Klain got us all
in there. He told us what he was doing and how much he appreciated it and all
that. Then everybody packed up and went home.
P: A lot of people said that Gore's concession speech was his best speech of the
D: It was. I do not know about the best speech of the campaign, but it was the best
speech that had been made in a hell of a long time since this stuff had been
going on. Whoever helped him with that speech had a lot of, and he did, feeling
for what they were doing, I thought. He delivered it as well as any.
P: If he had campaigned like that, he might have won.
D: Well, that is what they always say. If a bullfrog had wings, he would not bump
his [rear]. I think Gore's biggest [problem, and] this is certainly not an expert
opinion, [was that] he was indecisive in the way we approached the litigation.
We were always worried about how it looked. That meant his advisors were
worried about how it looked. It was kind of like [if] you [have] a boxing match and
one side is really stronger but he fights by the Marquess of Queensbury rules
and the other side is not as strong but he kicks you in the [groin], he hits you in
the kidney, he does everything dirty, and he wins. That was about the way this
thing came down. They were street-fighting, which used to be the Democratic
strong[point]. The Democrats were acting like they all went to Harvard. Maybe
they all did, I do not know. The other thing that I thought that really affected this
was that the people that were telling us what to do had the Washington Beltway
as their vision. These [were] Washington lawyers. Bush, on the other hand, was
sitting down in Texas, [staying] out of it, not making any decisions. He was in the
perfect position because he had people like Baker on the scene here making all
these tough statements. He had whoever was down there advising him, telling
him what to say and when to say it. Gore was making his own decisions, but he
had too many advisors. As a result, I think that is why he ultimately lost the
election and this lawsuit. Now if he had taken Daley on, who was a good
politician earlier in the campaign...
P: As his campaign manager.
D: Yes, because when Daley did, it switched, if you remember. If he [Gore] had
been himself more than following what everybody told him to say, I think he
would have come across much better.
P: You really see that in the debates because his personality changed every time.
D: He should have just gone out there and been relaxed and sort of said, I am your
vice-president now and I have this experience, what is your question, and do it.
It is all right to keep saying Mr. Bush is the big-business candidate. In fact, his
major supporters, if you put them in a gunny-sack, you would not have but about
ten that would shake out. They all have so much money, they could not get out.
Give them a Clinton-type, Clinton was great at this. Bush was awful, and yet
they had him set up. They were able to anticipate how Gore was going to do it.
That is why Lawton wound up hitting little Jebbie [Bush] that time. Jebbie had
never been in a [tough] debate, Lawton had debated all of his life. He was a
great debater, which everybody forgot. He did too.
P: Chiles did not want to debate at first, did he?
D: Well, his first debate and he had been out of the Senate for a while, he goes in
there and Jeb gets up and says, you are a liar. Lawton was ready to take him
out and kick him and beat him up. It was terrible.
P: Is that when he talked about the return, the "he-coon"?
D: No, no, that came later. That is when he switched back to being Lawton. He
was not Lawton in the first debate. He was listening to all these people that
come down from Washington and New York and tell you how to run the
campaign. Everybody was telling him he did great, except Rhea called me and
[a few old friends and asked us] to come over [to the Governor's Mansion]. We
have to tell Lawton how bad he was. Everybody is telling him how good he is. I
said, well, have you told him? She says, well, I do not want to do it by myself,
you know. So I went over just about the night or so before that debate. I had
been over as a set-up to debate Jeb in St. Augustine in the Matanzas Club. Jeb
did not know who I was. He knows who I am now. I had been chairman of the
board of trustees over there of the [Florida School for the] Deaf and Blind for
sixteen years. My sister lives there, my nephew Doug Wiles [Florida state
representative, 1996-present], who is now in the legislature, and well, I knew
people. My wife is from St. Augustine. I got married in Trinity Church. They
said, you go. Lawton was not going to go anyway. They were going to send a
surrogate. So I go and I had all the stuff to eat his lunch. My job was to eat his
lunch. They wanted me to go first, they thought they were setting it up you know.
[Mayor] Petroglou [of St. Augustine], I had known her for [years, was presiding].
We all liked each other. She puts me up there [first]. In the course of it, I said, I
want to make some comparisons here just in general when we get started. Mr.
Bush's experience in government consisted of being the Secretary of Commerce
[1987-1988] in the [Bob] Martinez [Florida governor, 1987-1991] administration
for eighteen months. Let me tell you what he did. He flew to London four times.
He flew to Europe four times. He flew to South America four times. He flew to
Asia four times. [He flew] several times, nobody knows how many, to Mexico. His
wife is from there, you know. He is sitting there, [very uncomfortable]. Nobody
had ever worked on him in his life. I said, so that was his experience. He did not
do anything else. The only thing he did was become the state's all-time
champion frequent flyer. He got more miles than anybody in the state. He is just
blistering. I said, that is his experience. Then [I talked about] Lawton [and his]
thirty-two years [of experience] and no scandals and all this stuff. I said, the
most important thing the governor does is make appointments. [He makes] 3,200
appointments a year, [including] everything from Supreme Court justices to local
jobs. This is the [most] important thing that he does. Who did Mr. Bush select
for his first appointment? [Tom] Feeney. And who is Mr. Feeney? He had been
in Florida six years or seven years. He graduated from Pittsburgh or Duquesne,
some little law school up there and came down to stay on the beach. He and his
buddy went out on the beach in Brevard County and stayed until the money ran
out and then he went over and got a job in Orlando and passed the bar and
became a lawyer. Then he ran for the legislature as a member of the Republican
party and had [the] backing of very prominent financial people and he was
elected. What did he do in the legislature? One thing, he introduced one bill.
One bill the whole session, two sessions. If they did not balance the federal
budget, his bill said, Florida would secede from the Union. Now, that is the man
that he selected. He is kind of like his dad [George Bush, U.S. President, 1989-
1993] except this guy [Feeney] was not nearly as qualified as [Dan] Quayle [U.S.
vice-president under George Bush, 1989-1993]. Quayle was so much better
than this man. He is just fuming, then I wound it up. I said, comparing Lawton
Chiles to Jeb Bush is like comparing fine French wine, which is Lawton, to cold
McDonald's coffee, which is Mr. Bush. He was so angry, he just could not see
straight. The crowd [mumbled disapproval], they are mostly Republicans, and
about five or six Democrats. [The mayor] said, do not do that. I said, no, that is
all right. I said, you know Rumelle, I live in Tallahassee and I am a Gator and I
am very accustomed to hostile audiences, in fact, I love them. The crowd roared,
then I was in good shape again. I was having fun. This is what you do in a
[good] political debate. He got up and he did not know what to do. He was off
his script, he was off-stride. He ignored me. [Before we spoke] I went up and
talked to him, he just said, hey, [and] turned around and walked off. You do not
do that in politics, you know. The other side, you go up [to them] and say, how
are you doing, you son of a [gun]. Whatever. You get it out of the way because
it is the thing to do.
P: It is courteous.
D: Not only that, I was not mad with Bush. He had just never had [a real debate],
that was all. So [when I got back I learned] somebody recorded the thing at a
table. The newspaper had it, too. We got the tapes, and at the table the
Democratic person was recording it, but the rest of the people, [about] eight,
were Republicans. Their comments were hilarious. They started off and they
said, Mr. Douglass is sure doing it, it is just no good at all. After my remark about
the Gators, they all went, oh, oh. From then on, one of them leaned over to the
other one and said, it is pretty obvious that boy knows more about the
government than our boy. We talked about all kinds of governmental [issues],
The night that Lawton was preparing for the debate, Rhea said, you better come
over here because these same people are telling him how good he was. It was a
guy they had paid big money [to], from New York or somewhere in Washington.
So when they all left, he and I went out in the yard. I said, Lawton, you realize
what he did to you last time, don't you? He said, yeah. I said, he called you a
liar and you did the same thing I would have done, you got mad because people
do not do that, particularly little [jerks] like him. First of all, I think if you handle
that right, it is going to really backfire on him because most people think he is
impertinent dealing with an older person anyway. He said, yeah. I said, you
know, use your momma's stuff about sticks and stones will break my bones, but
words have never hurt me. He said, that sounds good. [Then, in the debate,] he
comes in, and when Jeb calls him a liar is when this happened. He sort of
stepped away from the podium in typical Lawton style and said, you know Jeb,
my mamma told me that sticks and stones might break my bones but words from
people like you never hurt me. And, you remember, the old he-coon walks just
before the light of day. [I had no idea this was coming]. They panned it over there
on Bush and I swear to God, he thought it was a racial joke or something. He
looked like he was about to faint. That switched enough cracker votes to go with
all of his southeast Florida votes, [that] it really changed the tone of the election.
We were down, we were down seven points.
P: It was a very close election.
D: We were way down, though. It was not close, it had drifted apart. It all of a
sudden tightened back up. They made one major error. They ran the ad that
mimicked the ad his dad ran against [Michael] Dukakis [unsuccessful Democratic
candidate for president, 1988] [that he] murdered this guy because [he] turned
him out of prison, which he did not. [Jeb's ad] backfired. They do not usually, but
that exchange and that ad put Lawton back in.
P: That is very interesting because had Jeb Bush won, he might be where his
brother is now.
D: Probably would, because he was much more urbane. George had gone broke in
everything he did. They covered that well. What he did with his stock makes the
Clintons look like Christian people in the so-called Whitewater [scandal]. But
they have ignored it, nobody has ever picked up on it.
P: I thought that was surprising that Gore did not point out some of those activities.
D: The Democratic Party could. That is where they should have done it. But they
went out there and started on Clinton while he was governor. Lee Atwater
[political strategist; chairman of Republican National Committee, 1988-1990]
picked him out as a possible guy to win. He is the guy that got the thing going.
The Mellon heir put the millions there and ran that memo [Mina tape] and put all
that stuff in the Spectator.
P: Richard Scaife.
D: It was a financed, calculated deal that they nailed Clinton on. They figured
sooner or later they would get him because he screwed everything. And they
P: Do you think that Gore should have used Clinton more?
D: Absolutely. Clinton was very popular. Still is. Everything they do and everything
they say, press or anybody else. When they do a poll, you will always see. [that]
And guess who likes him? The women, because he is a real warm guy. He has
a knack. The blacks love him. He can tell them they are sorry [black people] and
they still love him. He just has a [way with people] and it kills the press and
everybody else. One thing they cannot accept is a guy with talent. They want
the politician to be some kind of a klutz. They do not want a person who is fun.
Lawton was different. He was able to blend it. Most people cannot do that.
P: People forget that Bill Clinton is one of the superb politicians of any era.
D: He and [Franklin D.] Roosevelt [U.S. President, 1933-1945] have to be the two in
my lifetime. In a lot of ways, Clinton was a better politician than Roosevelt
because he did not have the base Roosevelt had, nor the events that put him
where he was.
P: How would you assess the media's treatment of your activities as well as the
state of Florida? Did they treat you fairly?
D: Me? They treated me very fairly. I turned down most all their stuff. The only one
that treated me unfairly was The Wall Street Journal. I told you about that. I had
one article in the New York Times that was totally wacky, but all the rest of them
were very favorable. I thought they treated me very fairly. In fact, they were fair
to all of us though, the lawyers.
P: How would you assess their treatment of Florida in general? All these Florida
jokes, Flori-duh, and all those things?
D: I thought all that was appropriate. What the hell? It was focused to the world.
You always make jokes about wars and everything else. I was not offended.
P: This could have been a circumstance found in probably almost any other city or
state in the country. If we look at Chicago, we look at Louisiana. Georgia, for
example, had many more over-votes and under-votes than Florida did. It was
just because the vote in Florida was close, that was the thing. Is there something
that should be done about the Electoral College?
D: No, we cannot do anything about it anyway. Every state has to agree to it,
almost. You know that Montana who has three votes, or Wyoming has less
population than Duval County, they have got two senators and three votes in the
electoral college. That is why they did it so these little, old non-populated states,
[had some] control [over] the amendment to the Constitution. It has to be ratified
by two-thirds of the states. It will never be, so they can just quit [thinking about
that]. They are whistling Dixie.
P: Are there any other memorable stories or incidents that you have not told us that
we can get out of you?
D: There were probably plenty of them, I just am not focused on them at the present
time. I think I told you I have always enjoyed the conversation with Boies when
we said he had a twenty percent chance and he said that was pretty good in Las
Vegas, he would take it.
P: Describe what Tallahassee was like, with all the media people. No one could get
a place to stay, they could not get into restaurants.
D: I did not have that problem. I did not go to restaurants. I did not go out to eat. I
went home and ate and I lived my life.
P: It must have been very difficult for some of the other out-of-town lawyers.
D: They all seemed to be doing great. Everybody had a good time. I sent them to
the restaurants. They had a big time, I think. Most people did. The press did.
They always do. It was rather exciting. I think that most people who were
covering it had a big time. They liked Tallahassee, it was kind of an odd place for
them. It has the small town atmosphere. It is Southern, but it is not. They got all
these people in town. There are a lot of places. Of course, you have got 50,000
college students here. That is a hell of a lot of students, so there is bound to be
plenty of places to get drunk. I thought the press was really pretty good. I
thought they went out of their way to be polite to us and to not intrude on us.
Particularly the major press, the major networks, and so on, they were very
considerate of our position as lawyers.
P: It must have been very difficult. I remember David Cardwell on CNN said, they
would get a court decision and they would have about ten minutes to look at it
and then they were on the air.
D: Talking about them feeling bad, we would have about ten minutes to be back in
court arguing it. Actually, I think I told you, I walked out of the office and I did not
know I was going to court that day. I did not think the hearing was [until] the next
day. I was on the seat of my pants on that first hearing.
P: If you had to assess the performance of all the attorneys, how would you go
D: I think Boies was superior to all of the attorneys in the case.
P: Did the rest of them perform at a high level?
D: I thought everybody performed probably at a very [high level]. I think Klock is just
not a good lawyer. I just do not like his style. I thought he was the only one who
was at all out-of-line much.
P: Was Ted Olsen, for example, effective?
D: He was not very effective. I am not sure where he fit in. I thought the guy that
probably could have been [more] effective in the legal sense was [George]
Terwilliger. The one that was in the running for the FBI. I forgot to mention him
before. I thought Barry Richard did a great job. I remember the first argument,
they let him argue five minutes. The other guy had screwed everything up. I
leaned over to David and I said, they should have had [Barry] argue the whole
thing. Next time they did, they got rid of that guy. Sent him back to Washington.
Time magazine called him, said he looked more like a Kelsey Grammer [actor]
look-alike that was running a union meeting, a Teamsters meeting or something.
They were nice to me, in Time. I was courtly, whatever the hell that means.
P: It means a distinguished white-haired gentleman.
D: It was kind of funny. I got a lot more credit for doing things than I [actually] did. I
did not do that much really. I was cut out of the inner-circle pretty quickly
because of my non-agreement with things. Towards the end, I think Klain and I
probably became much more attuned to each other and I really like Klain. He
was probably the major lawyer in the case that you did not see, but was very,
very much the head lawyer. He was the team coordinator and he was on the
phone with Gore all the time. He was the guy that was talking to Gore and he
determined who did [what]. I think if I had been a little more assertive that I
would have had a bigger role, but I did not feel like it was my place to do that,
one. And two, I might have wound up doing more than I wanted to do.
P: Do you feel at this point vindicated by your position on moving to the contest
D: Oh yeah, I have felt that way all the time. I do not think I ever made any secret of
that. I think in observation, I do not think any Florida lawyer disagreed with the
position that I took. We all felt that way. Mark Herron, who I think is as good an
election lawyer as anybody, wrote him a memo and he wrote them a memo on
the absentee ballots that they did not follow. Cardwell will tell you, he had to
think that way. Anybody that read and knew Florida election law would just about
agree with us, if your decision was to win and not worry about the PR stuff.
Actually by going to PR [tactics], they got their tails beat. The Republicans beat
the stew out of us in PR. They figured out the longer it drug out the weaker we
were. The more they said they are trying to steal the election from George, the
more the public decided we are trying to steal the election from George. We
should have had somebody up there, say, the governor of the Canal Zone, to
match the governor from Montana [Marc Racicot] saying these crooks are lying.
We did not win that battle. The press people though, was your question, and I
thought they were exceptionally good on the whole. Even the Fox guy, I enjoyed
him. That funny guy. Fox is so far to the right, they make Republicans look
liberal. But they are fun.
P: Any concluding comments you want to make?
D: No, it was a great experience for an old man. I have had a good career and this
was just sort of a plus. I did not make any money, but I had a good time.
P: On that note, we will end the interview. Thank you very much for your time.
[End of the interview.]