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Title: Interview with Rod Smith
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Title: Interview with Rod Smith
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Language: English
Publication Date: November 14, 2001
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Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
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Bibliographic ID: UF00067369
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 11

Table of Contents
    Copyright
        Copyright
    Abstract
        Abstract
    Interview
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the University of Florida









Rod Smith [State Senator, District 5-Dem.]
FEP-11

Rod Smith begins the interview by describing his actions on election day (1). When the results of
the Presidential election were contested, Smith was appointed to the Joint Committee on the
Electoral Process. He speaks about his appointment to the committee, the subsequent media
coverage, and his initial predictions regarding the outcome of the election (2-3). Smith describes
the numerous politicians involved in the Florida recount and offers his opinions on some of the
significant players in the election contest (5-7).

Smith reflects on the initial legal maneuvers at the state level (8). He gives his opinions on the
decision by the Florida House to appoint its own slate of electors (9-10). He then speaks of the
political machinations that took place inside the state legislature during this period (11). As the
recount begins, Al Gore telephones Smith to thank him for the work he is doing (12). Smith
discusses the weaknesses in the arguments of the Democrats, the party's political liabilities, and
their problems in challenging the information and tactics used by the Republicans (10-12).
Smith claims that Katherine Harris worked closely with the Bush campaign and her politics
clearly influenced her decision-making process throughout the recount (13-15).

Smith discusses the Election Reform Bill of 2001, its politicization, and other weaknesses (15-
16). He gives his opinion of the provisional ballot and the problems with various voting systems
(16-18). The politics of allowing felons the right to vote are mentioned (18-19). Smith also
considers the positive and negative aspects of the Motor-Voter law and other changes in voting
(19-20). Smith offers his analysis of the Gore strategy during the recount (21).

Smith talks about the various state and federal court cases regarding the recount (22-23, 28). He
analyzes the Supreme Court decision (22-24, 27-29). He speaks about possible indiscretions by
various election supervisors and the handling of overseas ballots (25-26). He considers
discrimination at the polls and the report made by the Civil Rights Commission regarding the
2000 election (30-31).









FEP 11
Interviewee: Rod Smith
Interviewer: Julian Pleasants
Date: November 14, 2001


P: This is Julian Pleasants and I am with Rod Smith and this is November 14, 2001.
Talk a little bit about Election Day. I know that you were running for the state
Senate.

S: I had been the elected state attorney for two terms. In candor, on Election Day, I
was not as worried about my race. We had seen the polling and it was pretty
clear that I was going to win the race by a comfortable margin. I will not say that
I was not nervous, you always are nervous, and tired, and exhausted and your
family is nervous, and tired, and exhausted. I actually spent that day with my
wife, campaigning for Bill Cervone [state attorney, 8th Judicial Circuit, 2000-
present] who was going to be, hopefully, my successor as the state attorney. He
was in a very difficult race against a Democrat who had previously run. Bill was
my assistant, but had not been in politics much. We knew that was going to be a
very close race, in fact, our sense of it was that Bill was behind. He ended up
winning the race very [closely] that day. I spent almost all day focusing on Bill's
race, moving into some key precincts in Alachua County that I thought he needed
to win. DeeDee, my wife, had great influence in High Springs. Her family is well-
known up there, so she spent the day working High Springs [and] Alachua for
Bill. That night my race was called pretty early. Frankly, we knew by 7:15 when
we got the results out of Marion and Putnam County, the race was over. I won
Putnam by many thousand votes and more importantly, I lost Marion County, as
a Democrat, I lost it by [about] 111 votes. Well, for a Democrat to lose Marion
County by that margin, that means the race is over with against the Republicans.
We knew we would sweep the rest of the counties, except Clay, which we did.
Then we began to focus on the presidency. I remember being exhausted going
to bed that night. When I went to bed and fell asleep, my recollection is that they
had called Florida for [Al] Gore [unsuccessful Democratic presidential candidate,
2000; U.S. Vice-President, 1993-2001] and then had come back and said, we
called it too early. They had not switched it and called it for [George W.] Bush
[U.S. President, 2001-present; Texas governor, 1995-2001] when I went to sleep.
When I got up the next day, I cannot tell you whether I watched the TV first or
turned on the radio in the car, I do not remember any of that. I pretty much was
in a fog, I was exhausted. I slept late the next morning for me, which is still 6:30-
7:00. The word was that Bush had won the election. Then as the day went on,
like most interested people, I began to see the back-and-forth. I was actually
doing a death-penalty case called Ricardo Gill I had agreed with Bill [Cervone]
that I would stay on and complete some death-[penalty] cases. Ricardo Gill was
a case that I went immediately into trial on. I want to say the following day after
that is when we started that [case], pretrial motions, etc. in front of Stan Morris,
who was the judge. As I recall all of these things going down, at some point in









FEP 11
Page 2

the trial of Ricardo Gill, Mike Murtha, who had been held over from my
predecessor, George Kirkpatrick's [Florida state senator, 1980-present] office,
came to me and said, you have been appointed to a select committee.

P: This is the Joint Committee on the Electoral Process?

S: Correct. That was during the trial. When I went outside, the press was waiting. I
do not remember the days, I cannot tell you, it is not that clear. It seemed like it
all ran together for me, but it was shortly after the election when the Joint Select
Committee on the Electoral Process was assembled. I remembered, truly,
saying, there has been some mistake, I just got elected; I do not even have an
office. Why would they name me? Not only was I named, I think we were told
that we were to report pretty quickly to Tallahassee. Of course, when I got up
there, it was a zoo. I have never seen anything like since the [Danny] Rolling
[serial killer, murdered five University of Florida students in August, 1990] case. I
think the advantage I had on most of the other people, though, was that I had
been through the Rolling case. As such, I was not nearly as affected or
intimidated by huge press coverage. It was huge press coverage, but I had
already been through that in [the] Danny Rolling [case]. It was not any big deal, I
had been interviewed by CNN before and ABC before, and was not as taken.
Most of my fellow senators and House members who were on the select
committee, I thought, were much more daunted by the process than I was. It
was interesting, here I was the freshman, what I felt like in that particular room,
[and] I was more comfortable. I remember Tom Lee [Florida state senator, 1996-
present] turning and saying to me, have you ever seen cameras like this? I said,
oh yeah, I have seen cameras like this before. Some of the people, I thought,
like Lois Frankel [Florida state representative, 1986-1992, 1994-present], spent
more time worried about how much time she could put on the cameras than she
thought about substantive issues that were in front of us. At some point that
became a dispute between she and I.

P: How many people were on this committee?

S: I cannot tell you that for sure. I can remember that there were seven in the
Senate. It could have been more. The Democrats, as I recall, were Tom Rossin
[Florida state senator, 1994-present], myself, and Betty Holzendorf [Florida state
senator, 1992-present; Florida state representative, 1988-1992]. I believe there
were four Republicans. I think it was Tom Lee, Dan Webster [Florida state
senator, 1998-present; Florida state representative, 1980-1998; Speaker of
Florida House of Representatives, 1996-1998], Lisa Carlton [Florida state
senator, 1998-present; Florida state representative, 1994-1998], and someone
else, I do not remember who that was.


2









FEP 11
Page 3

P: Was the committee divided equally between Republicans and Democrats?
S: No, there was a slight advantage on both sides. It was clearly [arranged that] the
Republicans could have their way in the vote. It was decided that way.

P: Why did Bush appoint this committee?

S: I do not know the answer, but I have a sense of what the answer was. The
sense of what the answer was is that [Tom] Feeney [Florida state representative,
1990-1994, 1996-present; speaker of Florida House of Representatives, 2001-
present] had a strategy from the outset. That strategy on the House side was
going to be to bully through whatever needed to be done to legitimize the election
of George W. Bush to the presidency. John McKay [Florida state senator, 1990-
present] on the other hand I took him at his word then only partially, but I have
gotten to know the man since much better- I consider him someone I have a
great deal of confidence in. He was not as sold on it. I was kind of a strange
choice for a couple of reasons. I was the only Democrat to win a disputed
Senate seat. That was why it was odd to pick me. They had spent a fortune to
defeat me, which [made it] odd [that they would] pick me. I did have a
constitutional history, I had been a prosecutor and I taught constitutional law and
I taught at the law school. There were some reasons for that. Candidly, I was
told that my reputation was of being very knowledgeable and hard-working. I
don't know about knowledgeable, but I probably am known for really getting into
things. I immediately, as soon as I was appointed, began to pull up all the history
of the process I could, read all the constitutional law. I remember actually going
out and purchasing a book on the Rutherford [B.] Hayes [U.S. President, 1877-
1881] [1876] election [decided by special commission]. [I was] trying to
understand Florida [in terms of] what had happened then. I went back and read
the [John Quincy] Adams [U.S. President, 1825-1829]-[Andrew] Jackson [U.S.
President, 1829-1837] debacle [1824 election was decided by the House of
Representatives]. Which really, I did not spend much time on the first [Thomas]
Jefferson [U.S. President, 180-1809]-[Aaron] Burr [U.S. Vice-President, 1801-
1805] issue [1800 election was tied, House of Representatives elected Jefferson
to presidency] because that was under a different constitutional provision. I went
back and read all the close election outcomes in this century, [but] actually we
did not have one in this century that I thought was a real precursor. We had
close elections before, but nothing that was a real precursor, nothing had gone to
the House in this century. I think the closest election had been the Charles
Evans Hughes [unsuccessful candidate for U.S. President, 1916]-Woodrow
Wilson [U.S. President, 1913-1921], 1916 race, if I remember right. But it did not
give us a great deal of guidance. There was speculation about what was going
to happen, but none of that actually did happen. I went back, of course tried to
read all I could of the Federalist [Papers] and actually [had] some research done
for me at the law school on some constitutional history on how all these









FEP 11
Page 4

provisions had been worked together. So, I went in there with the intention of
trying to do the right thing. I wrote a memorandum privately to John McKay
shortly after my appointment, [which] said, here is what I think we ought to do. It
was confidential and privileged, not to be reviewed and not to be seen, kind of
thing. I got a phone call back and he said, I want you to provide some leadership
in this direction. My direction was that I believed we were absolutely premature
in doing what this committee was assigned to do. I also thought that the
Republicans were caught in a heck of a difficulty. The witnesses they called
were not of great credibility. They called people in that [made me] a little
embarrassed for them. They were the kind of guys I would have expected Tom
Feeney to produce, they were ideologues, but they did not do well when cross-
examined. I think [that] I immediately became [to be] seen among the Democrats
as the leader on cross-examination. The reason the Democrats did not gravitate
towards me more quickly, I think, was [because] I was not a great fan of Al Gore.
I have made no secret of it. I came very close to voting for George W. Bush. I
voted for Al Gore, which surprises a lot of people, but I did not make that decision
until the Sunday night before the election and really made it for the worst of all
possible reasons, [which] is that I was not crazy about either one of them. My
wife discussed her reasons for voting for Gore. She was much more committed
towards Gore and much more opposed to George W. than I was, and I figured
well, on balance, those are good enough reasons. To me, neither one of them
had made a compelling case that they were going to be great presidents. I did
not go in there [believing] the republic was going to fall apart if Al Gore did not
become president. My sense was that John McKay was the same way. He told
me, in private conversation, that despite what the House might think, he knew
that our republic would endure under either presidency and do well. The House
was much more ideological. The most honest guy on the House's side was
Dudley Goodlette. Dudley is a lawyer's lawyer and was embarrassed, I think, at
times by what the House was putting on in terms of making their case. The
Democrats, however, were much weaker. We did not have anybody prepared to
testify that was of much credibility. We finally, finally put some people together
that I thought gave some credibility and were objective. We had a testifier [who]
was a real scholar of the process. He was the one guy who was a scholar of the
process. He gave us great authority and said, really, this process is designed not
to go the way you are going. I wish I still had a copy of the speech I gave the last
day, which was the speech that really framed my position thereafter. [My
argument] was that while I knew finality was going to have to come about, I still
believed that it would have to be resolved through the pending issues before the
Florida Supreme Court on the election and the United States Supreme Court on
the larger issues.

P: You assumed even at this point that it would eventually go to U.S. Supreme
Court?
4









FEP 11
Page 5


S: I knew it would. I absolutely told everyone [and] put it in writing [that] this is going
to the U.S. Supreme Court. [The] U.S. Supreme Court is not going to choose not
to step into this ring. There were several reasons. Number one, because the
Florida Supreme Court jumped into it and took a position which in [making], I
think they were on shaky [ground]. Everybody was on new ground here. It is not
like you had a world of precedent. I remember saying that I am reminded of the
old Peter Finley Dunne [journalist, humorist, 1867-1936] cartoon [which said], the
Supreme Court reads the newspaper too. This Supreme Court this [William]
Rehnquist [U.S. Supreme Court Justice, 1972-present, Chief Justice of the U.S.
Supreme Court, 1986-present] Court's ascendency was entirely based upon
Republican administrations. I felt like they were not about to not get into this if
they could possibly find a way to do so. They would manufacture a way to do it.

P: It is very clear that Sandra Day O'Connor [U.S. Supreme Court Justice, 1981-
present] had paid a lot of attention to the election.

S: No question. Let us not forget the debacle that had surrounded the appointment
of Justice [Clarence] Thomas [U.S. Supreme Court Justice, 1991-present].
There were bills to be paid here and I felt they would be paid. That is the cynical
political part of me. Now, let us go to the legal analysis, the legal analysis on my
part was that the Court also knew that there are times when it almost certainly
had to act. Where I thought they might act was not to decide it the way they did,
I thought they might send it back to Florida with instructions that would have still
allowed it to go to the House. Other than [for the purpose of] churning the
political issues, I never understood why the Democrats were holding on to any
hope that they were going to win the election. This election was going to the
[U.S.] House, [where] I saw no scenario under which the Democrats win, they did
not obtain a majority, they were going to lose. You were not going to have
people cross the aisle to vote for the Democrat's president. From day one, I
believed that only in a remote circumstance could Al Gore win, and that
circumstance would be a recount that was ordered in those counties, that was
upheld in those counties, and he won. I also believed that a fatal flaw had
happened in two ways, number one, the Democrats were not as ready for the
press war as the Republicans were, [who] did a better job with the press war.
They convinced the nation that this is just a poor loser out there who [is] just
trying to pick and choose the counties that they think they might win in. The irony
is that history is going to show us that that worked to the Democrats'
disadvantage, that they would have been [in a] better [situation had they] asked
for a statewide recount all the way across the board.

P: That is the contest.


5









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Page 6

S: Right.

P: Let me go back to the hearings. One of the individuals who testifies is a man
whose name I cannot recall. He is a law professor at an unaccredited law school,
sort of a Christian college, who is a good friend of Tom Feeney. These were the
kinds of individuals that appeared. Was this just window-dressing?

S: Yes, absolutely.

P: Were they were not really interested in hearing about constitutional issues?

S: No, not at all. There is an exception to that, though, and that was their biggest
mistake. The one that really slowed down the train was Tom Julin [attorney]. I
had known [Tom] a long time. Tom is both honest and has integrity. I got to
cross-examine Tom. That cross-examination did a couple of things. Number
one, it raised me from an unknown Democrat to the head of the class of the
people on that committee pretty quickly, in the eyes of the press. Number two, it
was clear that I would not be intimidated, it is just not my style. He also was
honest, and Tom did not give them the answers they wanted. He undermined
the guy you are talking about so badly as to make the guy look like [the] clown
that I believe him to have been. I thought he was a rube when it came to
constitutional-law issues. Frankly, I had better credentials than he did. So, I felt
like that was a mistake. They went a bridge too far when they put Tom Julin on.
Interestingly, I believe, if my memory serves me well, [that] Tom was selected by
the Senate, which shows what I have believed all along that the Senate went
into this with a more open approach toward trying to find an answer, [a] closure
that would be effective. Feeney was an ideologue from day one. [He] truly
believed that, for good or bad, the history of our times would be set by who won
this and he was absolutely committed that he was going to be the front-man for
the Bushes in seeing that it was won. The Secretary of State [Katherine Harris,
Florida Secretary of State, 1998-present] was completely over her head, as she
is most of the time. I have observed her in a number of settings, and I think she
is a very nice person [and] a very good political person, but in terms of
understanding the issues, it was plain she never understood [them]. She was
lost, in my view, from day one.

P: How much influence did Jeb Bush [Florida governor, 1999-present] have on this
committee and the process?

S: I would not be somebody who could answer that, honestly. He had none on me,
but I was not in that circle. He has very little with John McKay. He had more
then than he does now, that would be my observation.


6









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Page 7

P: But he has quite a bit of influence on Feeney, does he not?

S: Completely. There was no question in my mind that the House was the tool by
which the administration was going to power through whatever they needed to
power through to win this election. They were going to win it. Be not mistaken
about that, he was going to win the election.

P: What was the final conclusion of this committee? Did you send in a
recommendation or a report?

S: This committee [made] out a report that said, we need to have a select
committee to act pursuant to the constitution. I voted against that [because] I
thought it was premature. I stated my reasons. It was interesting. Jim Horne
[Secretary of Florida Board of Education, June 2001-present; Florida state
senator, 1994-2001], Jim was on that committee too, great guy, man of integrity.

P: He is a Republican.

S: [I] do not believe he should be the education commissioner for reasons that have
to do with politicizing that job, but if I believed it should be somebody from the
Senate, I would have picked Jim Home. He is a man of great integrity. After I
made my presentation, he got up and said, I am going to vote differently for now,
but I believe the statements of Senator Smith, essentially, I would echo
everything he has said. I just simply think we ought to allow the process to go to
the next step, but I, too, am concerned that we need not do what the House is
suggesting. Interestingly enough, somebody else did the same thing. [Daniel]
Webster [Florida state senator, 1998-present; Florida state representative, 1980-
1998, Speaker of the Florida House, 1996-1998] is an ideologue and it was clear
to me that [he] was giving all the appearance of a studied and policy-[geared]
approach to this, that in the end he was going to be closely allied with whatever
the House wanted to do. Dudley Goodlette, on the other hand, had serious
misgivings on his part about whether they were doing the right thing. [Although]
he voted to move the process forward, it was clear to me that Dudley was having
second thoughts. Frankly, I think Dudley knew that the quality of the evidence
they were putting on was very poor. Dan Gelber [Florida state representative,
2000-present; chief counsel to U.S. Senator from Georgia, Sam Nunn, 1994-
1996] from the House, a Democrat out of south Florida, [a] very bright guy. [He]
used to be a U.S. attorney down there, he also rose at the same time. He used
to work for Sam Nunn, he was a student of the area. It was clear, and I do not
know how to say this without [sounding] overly partisan, [but] they had more
numbers and we had more talent, was my view at that point. Although Betty
Holzendorf was an ideologue the other way. I love Betty to death, but the fact is,
she would not have voted for George W. Bush [even] if the evidence [had been]
7









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manifest that he had won the election. So, you had a group of people there from
both sides [who were ideologues]. There was [a] center core of people that were
searching to keep Florida from doing something embarrassing in the history
books. My view was that we could only embarrass ourselves by doing something
that no state had ever done and that did not need to be done. There was a
mechanism, it had worked for 200 years, let it work again. [Even] though it did
not work in the Hayes election very well, I will admit. We took a bribe [reference
to Hayes being rewarded the presidency in return for agreeing to pull the Union
troops out of the South], but that is okay.

P: What about the issue of December 12, the safe harbor? I know that some of the
Republicans were arguing if the legislature...

S: I never thought that was a legitimate argument. I never believed that was a
legitimate argument. I believed that it was clear that on December 12, something
might happen, and what might happen is [that] it might automatically go to
Congress for its normal resolution. That was the most that was going to happen.
I think the Republicans felt December 12 was more important than I did,
because they felt [that] December 12, if I remember my analysis, the worst that
would happen was that Florida [would] not have a slate that was resolved.
Therefore we had an unresolved issue that would go to the [U.S.] House [of
Representatives]. They were trying to scare Republicans into a scenario that
Florida would be discounted, therefore Gore would win because he would have
more votes. No. No one would have the requisite number at that point without
Florida's votes counting. I think Gore would have been just short by one or two,
Bush by five or six. I do not remember the numbers, but it was going to be close.
We were not going to lop Florida off. That was never in the scenario. It would
have meant we had a disputed election. Unresolved, it would have gone to the
[U.S.] House.

P: The Republicans' fear was, and they talked about this, they were afraid that the
issues would go to the Florida Supreme Court, which was appointed primarily by
Democrats, and that they would decide in favor of Gore, the U.S. Supreme Court
might not take up the case, and then they might end up losing. That was one of
the arguments they presented.

S: I always thought that was a false issue. The most that the Florida Supreme
Court could do was to order recounts. They had no authority to order an
outcome. They could order some recounts. December 12, I believe, was only a
drop-dead date in terms of Florida having to have its electors certified. If that did
not happen, under my reading of the law, we would have had a disputed list. We
were going to have something up there. We already had something. Katherine
Harris had already sent a list. We were not going to be omitted from the process,
8









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as the specter they pointed [to showed]. You have to understand that Feeney is
a person who has long attacked the Florida Supreme Court, he [has] long
attacked the judiciary. He likes to espouse that he reads the Federalist Papers
and he studies them closely. I think he must have [omitted] portions which I have
read fairly closely about even Alexander Hamilton [Secretary of the Treasury,
1789-1795; member, Continental Congress, 1782, 1783, 1788], though I am
sure, at times, he is closer to Hamilton that anybody else alive. [However,] even
Hamilton conceded that we needed the Court and its role and wrote a great deal
about it. My guess was that they were scared of the Florida Supreme Court, but I
never felt the Florida Supreme Court was going to decide this case. The most
they were going to do was going to decide some disputed election issues. I
always thought that was a strange argument. Were they scared that if we did get
a recount and if we had a legitimate count, the other guy was going to win? My
view was, I did not care who won. If we had a recount and Bush won, more
power to him. If he lost, he was supposed to lose, he did not have enough votes.

P: I think part of the strategy was, as long as Bush was in the lead, it helped their
cause. If Gore ever got in the lead, then that would change their strategy.

S: There was no question about that. Let me tell you that the honest guys like
Home and Goodlette by honest, I mean intellectually honest guys would tell
you straight to your face that if the shoe were on the other foot, they would be
arguing the other way. No question. This was about a governor who was
supposed to have delivered his home state without much problem and was
unable to do so. It was clear in the exit-polling that George W. had not been
helped by the governor. I think there was a great deal of impetus on the
governor's part to go ahead and try to deliver his state, but it was the second-
most embarrassing thing in the election. I think the most embarrassing thing in
the election was Al Gore's inability to win Tennessee. Whenever I hear people
start moaning and groaning, [saying], we got cheated in Florida. My answer is
always, who cares about Florida? He could not win Tennessee.

P: Or West Virginia.

S: West Virginia is always Democratic and he loses it. Tennessee is his home
state. I forget the last time a presidential candidate had not carried their home
state. It has been very rare.

P: The House decided, primarily due, I am sure, to Feeney's leadership, to go
ahead and appoint a slate of electors. The vote is 79-41. What was your
reaction to the constitutional basis of this? They argued that the legislature had
the constitutional right to appoint electors.


9









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Page 10

S: I did not agree with them. I never adopted that argument, I did not think that was
the way it was supposed to be resolved. I think the system was clear, I think we
would have had a set of electors in the United States House and it should have
gone through that process. This was about Feeney's belief in states' rights. This
is about Feeney's [beliefs about] the erosion of federalism. The people who
spoke spoke with no authority on the issue. No state had ever done this. If you
were in Tom Feeney's position, if you were an ideologue of states' rights, if you
were an ideologue of the right, this was a great moment for you to grab [power]
and say this was for us to make this decision. They voted, but the Senate never
did.

P: I guess he had a different view about states' rights once the United States
Supreme Court ruled.

S; That is an interesting dichotomy for the Republicans. They have spent their
career blasting the courts, of course. Now they have the Supreme Court clearly
on their side on critical issues such as affirmative action and other things. So I
think now they will focus their enmity on the state's court system, which Feeney
has done by introducing some absolutely embarrassing bills.

P: This vote was by concurrent resolution in the House and was passed 79-41.

S: Correct, but we did not take it up.

P: It went to the Senate and what exactly happened in the Senate?

S: The Supreme Court ruled. I wrote a memo to McKay begging him not to put us
through this process and forever embarrassing us as appearing to be parochial
and partisan and that the matter was over anyway, they have won. Declare
victory and do not do anymore harm. Enough harm had been done on the
House's side. McKay plainly has never been a Republican in the sense that Tom
Feeney has. He concluded that we did not need to do that and we did not take
that vote.

P: Would something like this have set a precedent? In other words, if the
Republicans did not like the election, they could put in a slate of electors. If the
Democrats come to power, you could do the same thing.

S: If you listened carefully to the arguments that were advanced by [the] most rabid
proponents of the House position, I felt that they were fundamentally anti-
democratic. That really, they were inviting people to disregard the vote. They
were simply saying, this has always been the case that the legislature chooses
the electors and that is an independent process. That would have been a
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dangerous precedent. A horrible precedent could have been set and fortunately
[it was] one that we did not [set].

P: Tom Feeney said, if the Founders of the United States were here, they would be
proud of us.

S: There probably were some Founders that would have been proud of them, but it
would not have been the ones that prevailed in the constitutional debate.
Remember some of our Founders voted no on the constitution.
P: At one point, the Democrats tried to get a resolution for no action, but that failed
again on party lines. Why could not the Democrats get any kind of public
support for this issue?

S: I did not want it to appear that this thing could hang around unresponded to for a
long, long period of time. No action was probably just the kind of thing that
absolutely did not have much appeal to the public. I think they felt like we
needed to do something. The Democrats have not been very good as a minority
party, we are not used to it, though we ought to be getting used to it in Florida.
We are not nearly as obstructionist as the Republicans were when they were in
the minority. They were better at it, they had been doing it longer. One of the
things I kept thinking that was a problem for us is we just were unable to come up
with something that grabbed the public. We did not have a spokesperson that
had great appeal. Lois Frankel has anti-appeal. Most people that heard her for
any length of time decided, well, I do not know what I think, but I know I do not
want her as the captain of my team. She became the darling of the Democratic
left, which are people who truly have a history of suicide in terms of political
decisions. I felt like Lois's leadership was really aimed towards Lois's governor's
race and getting as much time in front of the camera [as she could]. I think she is
very bright and articulate and I actually like her on some levels. [However,] I
thought she was more concerned about the time she was on CNN than she was
about putting together a real strategy by which the Democrats might be effective
in terms of the public sentiment, [in showing] that we had an alternative idea that
was a better idea. I think we did ultimately struggle to discredit their ideas, which
was important itself. Lisa Carlton and Jim Horne were moderate people on the
Senate side who were there. It was clear to me that they were not going to be
swept along by Tom Feeney. Lisa is not that kind of person. She was going to
do her duty for the Republican Party as she saw her duty, but she was not about
to do something that she felt was just downright embarrassing. What happened
to me, about three days in the hearings, the president [of the Florida Senate]
called me and he said, Lisa Carlton tells me you are the smartest person on the
committee. I said, that is certainly not true. She says you are dangerous
because you know too much. I said, I do not know too much, it is just [that]
compared to what the House puts out, the standard is pretty low. The bar is not
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that high to jump over. People were not doing any work, they were not studying.
I was, which has been my style. Dudley Goodlette was. Dan Gelber was. Lisa
Carlton was. Lisa runs a very good meeting, too. [She is] very orderly, she is
very gracious to deal with. I grew to care about her a great deal from the
process, I thought she was a person that I could always count on to do her best
to be fair, which I later found out to be absolutely true about Lisa, even when I do
not agree with her. There is a fundamental effort on her part to be fair. I did not
see much of that from the rest of the House members. Nor did I see it from
some of the Democrats, who came in there with the same kind of ideological
bent. The election was plainly life-or-death for them. As I have said, it was not
[life-or-death] for me. Betty Holzendorf said, at one point, she heard I was going
to vote for Bush. That was never true, I never was going to do anything that was
going to vote for Bush. I had voted for the Democrats and hoped Gore would win
the presidency, though I was not a great convert of his. When he called me on
the phone, I remember saying, I hope you do well, I wish you the best. He never
asked me to do anything, he just called up and said, I just want to thank you for
the work you are doing.

P: At what point was this?

S: About halfway through the proceedings. [I said,] Mr. Vice-President, I appreciate
your call.

P: What was his attitude at that point?

S: He seemed upbeat, he seemed very positive. He believed that the process
might vindicate his position. There was a critical moment in the trial when I
thought [David] Boies [attorney for Al Gore in 2000 election] was on the top, like
in a wrestling match. I thought he might score some points, but that was short-
lived.

P: Let me go back to a statement by Ken Gottlieb [Florida state representative,
1998-present] when he talked about what went on in the House. He said, they
practice brass-knuckle politics and that they had determined that politicians, not
the popular vote, should decide the election. Is that a fair statement?

S: Yes, on the House side that was a fair statement. I believe that to be very much
the case.

P: Also, it seems pretty clear that James Baker [U.S. Secretary of State, 1989-1992]
and the Republicans were using this as a back-up and that they were presenting
information around the country, and apparently very effectively, supporting this
position of the Florida legislature, while the Democrats, as you indicated, simply
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did not have a handle on this public relations battle.

S: They beat us to the punch every step of the way on that issue. James Baker [and
the others] were ahead of us every step of the way on that issue. I always
thought that we had made one other mistake, and [used] a strategy that we
should not have. We kept saying make every vote count, [and] at the same time
we were trying to disqualify votes, [including] military votes. I felt like that made
us look disingenuous.

P: Although the Republicans were just as hypocritical.

S: Totally. I made a statement in one of my speeches. Do not be mistaken, there is
no moral high ground in this dispute. This is, in the classic sense of the word, a
struggle for power between contending parties. There is nothing glamourous
about it and let us not couch what we do in constitutional terms that are nothing
more than alchemy.

P: As you indicated earlier, if the things had been reversed, Bush would have been
saying, we need to count all the votes.

S: Absolutely, no question. Katherine Harris would not have sent a list for anything.
History will find that she was much more involved in connections with the
governor [of Florida] and the governor of Texas, now the president. They were in
contact constantly.

P: Let us talk a little bit about that. It is interesting because one of the things we
have now learned is that Mac Stipanovich [chief of staff, Governor Bob Martinez]
was in her office, apparently advising her in every case to rule as quickly as
possible for Bush. Do you see that as either a bias on her part or bad judgment?

S: First of all, Mac is very bright. Mac is one of my [favorite] people [that] I really
enjoy. I went to law school with Mac. [He is a] very bright, very hard-working,
very ambitious, hard-knuckle politician, [a] great guy, I enjoy Mac. To the degree
that he would have any influence on the process, he is a much stronger, brighter
visionary person than Katherine Harris could ever hope to be, that is my
impression. That is nothing against Katherine Harris, I find her a nice and
pleasant person. I have never seen her appear in anything that I did not think
she was over her head. I have never seen Mac appear at anything that I thought
he was over his head. To the degree that is true, Mac would have clearly been
smart, saying, you get that list [of certified vote totals] up there now. Mac knew
the value of getting that list up there. Mac knew the psychological value of
declaring he [George W. Bush] won.


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P: That gives you a tremendous public relations and legal advantage, no question.
One thing I heard you comment on, in the session at the law school, is that you
see both Bob Butterworth [Attorney General of Florida, 1986-present] and
Secretary of State Katherine Harris as having bad judgment by being a member
of a committee to elect, in one case, Bush, in another case, Gore. You would
prefer that they should have absolutely no formal political affiliation.

S: Let me go beyond that. I was asked to be on a steering committee for Gore
when I was state attorney. If you understand how the state attorney works, you
run the grand jury, the grand jury resolves election disputes in election years. I
said, I do not think I [should] do that. Boy, was I glad later that I did not. I would
like to say that it was some great thought, but it just did not feel right.
Butterworth knows better. He should not have found himself in that position in
what was predictably such a close race. I am not saying they would not be
partisan and be participating, but they were the named co-chair of their
respective [committees and] now, all of a sudden, you are going to be getting a
legal opinion from a lawyer who is the co-chair on one end, and the votes are
being counted by the co-chair on the other. No one could possibly believe that
there was even a specter of objectivity to either of their performances.

P: Some people argue that Katherine Harris did what any political party adherent
would do. Had a Democrat been the Secretary of State, they might have made
exactly the same decisions that she made.

S: They would have, probably. Now a guy like Jim Smith [co-chair, Governor's
Select Task Force on Elections, Florida, 2001; Florida Secretary of State, 1987-
1995] would have handled it better. Jim was just more adept at what he was
doing. There was a certain amount of gender bias that surfaced, I thought, about
Katherine Harris. I thought that was bad. The whole focus on her appearance,
the whole focus on her makeup and her dress. Jim Smith used to wear the worst
plaid I have ever seen, but I do not think it would have been an issue, so I hated
to see that surface, I thought it was inappropriate.

P: One area where the Democrats claim that she showed extreme bias was when
the Florida Supreme Court ruled that they could extend the voting until November
26, and the votes could be counted at 5:00 p.m. Sunday, if open, or 9:00 a.m.
Monday.

S: That was clearly her worst moment.

P: Of course, they had never been open on Sunday at 5:00, the deadline they gave.

S: That was clearly the one thing that she did that blatantly lent credence to the idea
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that she was a functionary for the Republican Party, which she was. I do not
think that those who were in-the-know disagreed with that at all, that she was a
functionary of the Party throughout that process.

P: If you revisit her decisions, all of her decisions could be legally based on the
Florida constitution or statutory law, right?

S: I believe so, yes. I believe that some [decisions], where discretion was given
[and] where she chose not to exercise discretion in the way that seemed fairly
obvious towards opening the process, made her appear more open to allegations
of party bias. The Democrats would have done the same thing. I go back to the
line when I started my first presentation. [When I gave] my first speech in the
Florida Senate, they said, can you hold on for a moment, CNN wants to carry you
live. I remember saying there was no moral high ground. It was a political battle
for power. That is all it was about. We would have done anything to win too, I am
sure. We just were not as good at it.

P: Another issue that comes up was the time that Judge Charles Burton [Judge,
County Court, Palm Beach County; chairman, Palm Beach County Canvassing
Board] in Palm Beach wanted a little extra time and she said that requests could
be sent in with reasons for extending the time period, and then she immediately
dismissed those.

S: That was a ruse, she was never going to do that, it just made it look less blatant.
I suffer, in the political process, from a certain objective candor that comes from
having made a study of history as my avocation most of my adult life. What I
could not understand was those people who, with a straight face, see this as
[her] doing the right thing. I took it to be she was an advocate doing a good job
as an advocate the same way Barry Richard [attorney for George W. Bush during
2000 election] was an advocate or David Boies was an advocate. They were all
advocates, they were doing their thing. [End of side 1, Tape A]

P: Would you discuss the Election Reform Bill of 2001 and tell me what you think
this bill accomplished?

S: I thought the bill was pretty good, except for the bad parts. It was plain that we
needed a better method for conducting elections in Florida, mechanically. There
had been mechanical failures. I did not find, nor have I yet been convinced, that
there was any systematic racism practiced in the process. That is not to say that
there was not. There were flaws that I thought were attributable to poor training,
poor personnel and volunteers, and all those things were addressed. Actually, I
was on the Select Committee on the Elections. I thought we were about to pass
a really good bill until Lisa [Carlton] brought me that last little goodie. The last
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little goodie that was passed, which was clearly Governor Bush's all the way and
the people who pushed it were Bush people, was the one-time change in the
primary [ended run-off primary only for 2002 election]. How embarrassing. That
is what they do better than us. I made a speech the other day. I had always
believed that the Democrats were in a large part, incompetent. I would been
taught that all my life by a grandfather and a father who were die-hard
Democrats. That Democrats, when we have a firing squad, it is circular. The
Republicans are getting more incompetent as their numbers expand. That is
refreshing news for us, in terms of the spirit of competition. What I think they
have been able to do better is they have been a little better at hard-knuckle
politics and that was hard-knuckle politics and embarrassing.

P: Basically, it had nothing to do with electoral reform.

S: My statement was, which was printed statewide, [was that] I thought we came to
fix the last election but at the last moment, they decided to fix the next election. I
believe that to be the most embarrassing thing that happened in the Senate last
year, but not something that is out of character with the administration.

P: What about the other elements? Obviously the elimination of any of these
punch-card machines.

S: I think the punch cards are unreliable.

P: The legislation did provide funds for counties to get new equipment.

S: The Senate side made sure it was funds that were grants, not loans. We are
going to have every county, and many of my counties are very poor counties, our
counties are all going to have the technology and money for the technology to
make sure that our elections are smoother in the future.

P: Did you have any preference at all? Some people talk about the touchscreens.

S: I did not care, I felt like [we should] let the local people make those decisions.
Give them a certain amount of money, if they want to go beyond that, that is fine.
I think that will happen, but it did not matter to me.

P: What about the provisional ballot?

S: I was very much in favor of the provisional ballot, especially the provisional ballot
as I interpreted it, and which we have recently revisited, as you know, in
committee. My view was, if for any reason you were not allowed to vote, you
could vote a provisional ballot which could ultimately be [used once] your
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[eligibility] could be determined. I came from a labor background, we used to do
labor elections. I started out counting labor votes in labor elections in 1975
around the state of Florida. We had a strong tradition of provisional ballots,
contested ballots. When the election was over, you resolved the provisional
ballots, you threw them in, threw them out, based on the contest. For me, it was
just a natural thing, of course we should have provisional ballots. People who
show up at the wrong place or people who show up and somehow there is a
mistake about who they are. They ought to get to vote and then we will resolve
the issue. It may take a little longer, but not much longer. We ought not be
[letting] little old ladies and little old men who volunteer once a year tell people
they cannot vote or can vote, making those kinds of on-the-spot decisions which
they are clearly not capable of making.

P: This bill also provides money for education. How should that be spent, in terms
of making the voter both more responsible as a voter, and more capable of voting
correctly?

S: I think that our goal was to make sure that local elections supervisors [had some
autonomy], realizing that various communities have various problems. Some are
language problems, some are education problems, some are access problems.
The problem of a voter in Union County may be, but is not necessarily, the same
as a voter in Dade County. I wanted to make sure there was a certain amount of
local autonomy on that decision to address local concerns. I did believe that one
of the critical things was also that voters need to understand their own
responsibilities about how [to] vote. One of the great jokes that came out in the
debate was that Palm Beach County, where the butterfly ballot was considered
so difficult that nobody could understand it, is a county where [in] the bingo halls,
people will play five cards simultaneously. Our view was that some of that was
overblown.

P: Ninety-six percent of the voters in Palm Beach County did not have any problem
with that ballot.

S: What happened in this election was [that] it was historically unprecedented in the
closeness of the vote. If I told you that a state of sixteen million people would
end up being decided by under 1,000 votes, maybe under 500 votes, that would
be a fictional for proportion. And it happened. And it happened in a number of
states, and Florida happened to be last and happened to be the closest. We are
talking about a man [Al Gore] who clearly won the popular vote, and may have
even won the election. Not since Samuel Tilden has it happened to anybody who
is not the president of the United States. That is hard to believe. That has not
happened very many times, but it did happen. He clearly won the popular vote
and lost. He may have even actually won the electoral vote and lost. Because of
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the closeness of elections, things [came up] that would have never [come up
otherwise]. I had never heard the word chad, other than [as] a country in Africa.
I did not know what they were talking about when all this started. I did not know
about ballot design, none of us did. Everybody became an expert ad hoc.
Before this, nobody was. I think Florida did pretty well. We did not have that
many terribly embarrassing things happen. We had some small mistakes.
Bigger mistakes have been made in the past, they just did not count.

P: Plus, there was very little fraud.

S: Very little fraud. The Republicans wanted to make a big deal out of that,
because I think the Republicans oftentimes take the position that all the voter
fraud happens to minority voters. Minority communities, of course, have always
believed that they get messed up because of the felony disqualification provision.
I think both of those are probably highly overrated by their respective
constituencies. Those are just catch-words that always work well within their
respective constituencies.

P: Georgia, for example, had more over-votes and under-votes than did Florida, but
Florida got blamed for having over-votes and under-votes. Had the election been
close in almost any state, whether it be Oregon or any other, you would have
seen the same sort of problems.

S: No question.

P: Forty-five percent of the voters in the U.S. use punch-card machines.

S: Our machines in this state are way better than they were using in New York City,
which had not changed since World War II, I am led to believe. At the bottom of
this dispute was the unprecedented closeness. Who could have believed it?

P: One good thing that you alluded to, it seems to me now, and I have talked to a lot
of elections supervisors, that people now know what they do and are more aware
of the voting process. People have taken a renewed interest in voting. Do you
see that this will make a difference?

S: I think the funny thing is this whole idea [people had], [that] my vote does not
count. Boy, does it count. My goodness, does it count. This is a statistical tie.
That is what it boiled down to. The United States was decided by a state whose
electoral vote went to Washington, but in every sense of the word was a
statistical tie. Senator [Ronald] Silver [Florida state senator, 1992-present;
Florida state representative, 1978-1992] tried to change the rules in midstream,
which I would not agree to. He wanted to say, why do we not just split the votes
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equally, because that is what the votes were? Do it like some states have done.
Maine does it, Nebraska does, something crazy, a couple of states do it that
way. Florida had never done it before and I thought, wait a minute we are not
going to change the rules in midstream. Plus, even if it were a good idea, you
were not going to get past the Republicans.

P: They were not going to accept that because that would have made Gore
president.

S: That is right, Gore would have won under that scenario in an unprecedented,
close election.

P: While we are on that issue, should felons vote?

S: With limits. I have talked with Bill McBride [candidate for Florida governor, 2002;
attorney, Holland & Knight law firm] recently and he was talking about [how] he
favored felons voting. I said, Bill, I want to tell you what I think you have done. I
said, I think you are going to see three child molesters on a brochure and they
have been released from prison after having served mandatory time for child
molesting and the voter is going to be told that they have the same rights to vote
and that you want their votes to count for you. That is a bad ad.

P: Kind of like the Willie Horton [convicted criminal, subject of an ad placed by
George Bush in 1988 election that accused Massachusetts governor Michael
Dukakis of paroling Horton, who subsequently committed other crimes] ad?

S: Worse. [I said,] they will hit you with pictures of some of our worst offenders,
saying that once they have served their time, they ought to get their right to vote
back. I think probably there is a middle ground by which certain kinds of felons
automatically get their votes restored. Other, more serious felons do not.

P: Can the process be made more simple? As it is, it is very difficult.

S: It could be made more simple, yeah. FDLE [Florida Department of Law
Enforcement] and the parole commission people have told me it could be
simpler, it could be faster.

P: What is your view of the Motor-Voter bill?

S: As you know one of the outcroppings of that, which I opposed, is that it changed
the ways we select juries in Florida. I think we pick poorer juries now for it. The
trial lawyers like the juries that we pick now, because they tend to think they give
more money, because they tend to be poorer and less-educated jurors and they
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tend to give other people's money out of resentment. I do not know if that is true
or not. I happen to believe that there is a responsibility that comes along with
everything. I liked having registered voters. That way we knew we did not have
felons, by the way. Now, we have felons on juries and they get reversed later. I
would say that the Democratic Party supposedly gains by the idea of more and
more people voting. A democracy does better by more and more people voting,
consequently anything that encourages voter participation is presumably both
favorable to a democracy and favorable to the Democratic Party. Having said
that, I do not have any great feelings that it tremendously improves society and
on the issue of jury selection, I thought it actually may have been deleterious.

P: Should the legislature set a standard for interpreting the intent of the voter?

S: Well, I think Texas had done that and it helped them. Florida would have been
better [if it had] done that. I think with the new voting technology, that will be less
required than it would have been. Yes, that is probably something we ought to
look at after we get a little bit of experience on the problems, the bugs that will
come out of the new systems. If there are bugs, we ought to have, if not by law,
by rule, method for resolution dispute.

P: Of course, the Secretary of State is now holding hearings on this very issue, so it
could come from her office.

S: Well, as you know, anything they do in Texas, we suddenly find attractive in
Florida. I was born in Oklahoma, so anything in Texas was not very attractive to
me.

P: What about the idea of a uniform ballot in the state?

S: I think there is some attractiveness to it, but if you talk to the local elections
supervisors, they will tell you that it is very difficult to accomplish, because [of
differences in] the size of the ballot in Union County and the size of the ballot and
the issues on the ballot in Dade or Broward or Palm Beach.

P: That is very interesting. I have talked to the elections supervisor in Union County,
Babs Montpetit.

S: Who by the way, did not have any problem on her hand-count and she takes
great pride in that, and I always speak highly, saying, wait a minute, it is just a
matter of your supervisor. Theresa LePore [Supervisor of Elections, Palm Beach
County] did not get the job done, but Babs Montpetit did.

P: One of the first questions I asked her was, how accurate is a hand-count? She
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said, as many studies have demonstrated, it is the most accurate.

S: You will remember this, we still do our NROV votes and that sort of thing, those
are hand counts, and they end up being one hundred percent accurate.

P: In fact, a study by Harvard University indicated that paper ballots were more
accurate than machine ballots.

S: They are. They are the most accurate, but of course, they are also cumbersome.

P: In some cases, subject to abuse, obviously.

S: Oh, yes.

P: How do you feel about the increase in absentee ballots, which is really a problem
for elections supervisors?

S: It is consistent with what we have been doing by encouraging additional voters.
You are going to have that [problem].
P: Let me ask you some questions about some of the legal decisions during the
campaign. One of the early decisions on the part of the Gore lawyers, I have
talked to Dexter Douglass [attorney for Al Gore during 2000 election] and other
people, was to protest the election and to pick the four counties where they
thought they could get the best result for a recount. Dexter Douglass says from
the beginning, what we need to do is immediately move to the contest. Do you
think that would have been the correct decision?

S: I have heard Dexter say that. With hindsight, especially, he is absolutely right.
At the time, it was very difficult to figure if we were even going to get a four-
county [recount]. I felt like the contest was the best way to go, because in the
end, the protest made it look like we were trying to pick and choose.

P: That was undermining the concept of counting every vote.

S: Yes, and Dexter is a shrewd fox. I think Dexter was probably right about that.

P: Another thing that he advised them against was supporting this lawsuit which
challenged the butterfly ballot as an illegal ballot. Why do you think they did
that? That was, as you know, kind of a weak case to begin with.

S: I think that had to do with the public relations battle, trying to emphasize that, in
some places, people just could not understand the ballot, kind of just
undermining confidence that Florida had voted for Bush. I think it had to do with
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local South Florida politics more than anything else.

P: Plus there was a lot of publicity about the Jewish voters voting for Pat Buchanan
[unsuccessful presidential candidate, 1992, 1996, 2000] and that certainly
resonated.

S: I think that it was local south Florida politics, which is disproportionately
Democratic.

P: In state law, in Section 111 of the Florida Statutes, it provides I will read this
and get your response that if the county returns are not received by the
Department of State by 5:00 p.m. on the seventh day following the election, all
missing counties can be ignored. Then 112 says that such returns may be
ignored. How do you resolve that sort of problem?

S: You know, the court dealt with that in its decision. They did what you had to do,
which is [to] read two clearly conflicting provisions in a way [called] impera
materio, which is in a way that makes sense, that is best as possible. What it
plainly was is two very conflicting statutes, on their face.

P: I asked David Cardwell [attorney, CNN elections analyst] about that and he said
the second part was put in and designed for late votes, because in many cases,
there were disputed elections that could not be resolved by the seventh day.

S: That was the standard analysis that I heard when I was up there.

P: Therefore, that could have been an acceptable analysis by the courts, could it
not?

S: Yes.

P: But they chose not to do that. What about Don Middlebrooks's [Judge, U.S.
District Court] decision? Bush requested an injunction to halt the manual
recount.

S: What did Middlebrooks do on that?

P: He said that he denied that partly because it was in the federal courts, which is
where the Bush people wanted it to be. He denied that on the basis of one, all
the votes should count. Secondly, if there were discrepancies, that was the way
the system worked, each county was different and it was a state matter, not a
federal matter.


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S: That would sound [like] a decision that, at that time, was probably won.
Middlebrooks is a good judge, pretty well respected, pretty Democratic. I think
that was probably the right decision.

P: It is interesting to note that in the entire process of the appeal in the federal court,
not the U.S. Supreme Court, the Eleventh Court of Appeals, a very conservative
Republican court, voted 8-4 against Bush and did not consider any of the issues
that the United States Supreme Court eventually submitted when it came to
them. That was kind of an interesting development.

S: The U.S. Supreme Court, at that presentation, I said that I thought the federal
court forever would be tainted by the idea. I thought not since Dred Scott [slave
who sued for his freedom, 1847-1857, U.S. Supreme Court ruled that he must
remain a slave] had there been a decision by the United States Supreme Court
that was so plainly reactive to the media and political circumstances. I still
believe that.

P: While we are on that, let us talk a little bit about that court decision. Do you see
the decision as a 5-4 decision or, as some people argue, that it was 7-2?

S: What was so crazy about that decision was the equal-protection issue. You had
suddenly people voting on the equal-protection issue, conservatives who never in
their life had granted an equal-protection challenge to anything. I thought that
was kind of the irony of how far [Antonin] Scalia [U.S. Supreme Court Justice,
1986-present] and others had to move to raise that issue. I think that the 7-2
aspect comes out of the one issue of the methodology of allowing...[finish
thought] and that was so questionable, I think there were judges that were very
uncomfortable with that. I still think it is a 5-4 decision, because those judges still
would have sent it back to the state with instructions. The 5-4 [vote] ended it.
The 7-2 would have allowed the state courts, with instructions, to go ahead and
tell them what to do.

P: In fact, Justice Stephen Breyer [U.S. Supreme Court Justice, 1990-present]
proposed that. He said, let us send it back to the Florida Supreme Court, let
them set a standard and count all the votes. But obviously, he did not get
enough support for that.

S: No, at that point is when the pure politics of it intercepted.

P: Although, the last time, they did remand it back to the Florida Supreme Court.

S: But under circumstances that prohibited or proscribed anything that could be
done by that court.
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P: One of the arguments about the United States Supreme Court 5-4 decision was
that in other cases, they had used this reasonable man standard.

S: Proportionality. Right.

P: They should have applied that same standard to the election in Florida.

S: The people who are trying to do this analysis are never going to get an analysis
on this decision that disregards what I have said, and that is, in the end it was a
decision that this court stepped in to stop this election and to decide this election.
They consciously decided this election.

P: Do you think this was an issue that they were looking for? In the first remand of
the Florida Supreme Court, they did not mention the Fourteenth Amendment at
all. Then, suddenly...

S: They were advocates of equal protection.

P: And yet, one of the Democratic lawyers argued that if there were an equal-
protection issue, it might well be the African-American vote in Florida. You could
use that to reverse that 5-4 decision.
S: I think that this case is of no value [as a precedent]. It will be no more cited than
Dred Scott will be cited, because in the end this was about deciding this election
by five people who had made up their mind [that] the selection was going to end
in that Supreme Court and that it was not going back to the Florida Supreme
Court to allow the possibility of Bush losing the state.

P: One of the problems they had was that he is supposed to be able to show
irreparable harm. Even Scalia had a hard time advancing that argument,
because at this point, Bush was ahead in the vote, and it would be difficult to
show irreparable harm under those conditions, would it not?

S: That was always a flaw to the decision, but once again, there was not going to be
any further risk involved.

P: Justice John Paul Stevens [U.S. Supreme Court Justice, 1975-present] had the
strongest dissent.

S: [Laughter] Yes, he did, as you would expect.

P: Exactly. He said the decision was wholly without merit and that the assessment,
which I thought was an interesting comment, of the canvassing board was no
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less uniform than the beyond-a-reasonable-doubt-standard employed in
courtrooms every day and, ultimately, this resulted in the disenfranchisement of
an unknown number of voters. That is a pretty strong comment.

S: I think what Stevens was saying is, wait a minute, how can you not let it go back
down there for a count? If the issue is, how could the state court not come up
with a standard, under our instruction, by which they can allow this count to go
forward? That is what he was saying.

P: Let me quote Alan Dershowitz [lawyer; professor; author]. He said, it was the
single most corrupt decision in Supreme Court history, because it is the only one
I know of where the majority of justices decided as they did because of personal
identity and the political affiliation of the litigants. He argues that what you now
have is an activist, right-wing Republican court.

S: Great irony there. Plainly, that argument could be advanced.

P: Let me ask you about the Florida Supreme Court decisions. The first really key
decision was the 7-0 vote to extend the counting and they picked November 26
as a deadline. Why did they pick that date? The issue for them was, in this
case, that they thought there had to be another opportunity to go back and get
these votes counted and by extending the date they could .

S: They came up with that as somewhat of an arbitrary time, but they were trying to
accommodate, if I remember right, that December 12 date also. There was a
conscious effort to accommodate what they thought was a workable schedule.
That is what they called it.

P: One issue that has apparently has come up, although we are not privy to all their
thinking, is that they claim that Harris, by dithering in her decisions, had cost
Broward County and Palm Beach County four or five days. So they added those
days.

S: They basically, I think, put them back in.

P: Your view of the Seminole County and Martin County cases, where the
Republicans came in and put in voter identification numbers? In the case of
Peggy Robbins, the supervisor of elections for Martin County, they actually took
the ballots out of the office and had them corrected. Do you think that these
were viable cases?

S: They were viable cases, I did not think they were ever going to decide the
election. I thought that allowed the Democrats to show that there was a
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Republican functionary who was doing as poorly as the Democratic functionary
had done in Palm Beach County. I did not put great stock in that and they were
rarely discussed as major issues on the committee. People just kind of thought
that they were lawsuits that were out there, [with] potential to have an impact, but
nobody really thought they would.

P: In the court decisions, Judge Nikki Clark [Judge, Leon County Circuit Court] and
Judge Terry Lewis [Leon County District Court Judge, 1988-present] both ruled
that you could not disenfranchise all the voters, but they did indicate that there
was certainly bad judgment.

S: No question. The judgment was horrendous. You wonder who in the world
[would do that]. Of course, we were also hearing [that] they did that because
there were Democratic people down there intimidating them in the offices. You
were hearing everything at that point in time. I thought that you were not about to
throw out these ballots. I thought you would probably would get what
[happened], which is some admonishment.

P: Is that a violation of the law?

S: By the supervisors? Could have been, could have been interpreted that way. I
really feel like it was just ill-thought-out and ill-considered.

P: One person I talked to said he did not think it was a violation of election law, but
could be a violation of public records law.

S: It is possible, by removing [the ballots]. I do not know all of the fine points of the
election law. My sense of it was, I am going back now on my memory, our
feeling was this was poor judgment, that no judge was going to throw out all
these ballots over that sort of a judgment by a person in an administrative
position. [I] did not think it was going to happen. Plus, it also led the Democrats
to that awkward position of [saying they wanted to] count all the votes except for
the ones [they] want to throw out.

P: That issue comes up more blatantly with the overseas ballots. The New York
Times has gone back and studied this very carefully. A large number of votes
were counted, if we look at the precise law, that were dated after November 7,
that arrived late, in some cases did not have a postmark, in some cases they
were faxed. The argument is, somewhere between 600 and 800 votes were
illegally counted.

S: I have heard that argument. That really did not play much of a part. I think
clearly the supervisors were pretty uniform in telling us that they had been
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warning us for years that we did not have a good solid way to deal with the
military vote in Florida. I have placed a lot of credibility [with] both parties saying,
we kind of knew this was going to happen some day if we did not fix it and we did
not. The argument for the second primary was based on this issue, by the way.
Doing away with the second primary would assure [that] military votes were
appropriate votes and [that] they had time to vote in every election. Of course
the fact we are only doing it once, I think kind of showed me how that was only
facially corrected in terms of reason for that change.

P: To me, this is a demonstration of how effective the Republicans were because
they went out and went back into all of these counties, like Escambia, where
there are large numbers of military people, and had some of these votes
recounted. Canvassing boards went back and recounted and counted them.
They were spread out all over the state.

S: They did a better job on the challenge than we did, no question about that.
There are a lot of reasons, not the least of which they had more money and they
sensed the importance of it before we did.

P: Plus, with Frank Jimenez [attorney, deputy chief of staff for Governor Jeb Bush]
and Al Cardenas [chairman, Florida Republican party] and others were
organizing the state and they were able to get plenty of volunteers. One
interviewee told me he thought the Republicans were more committed to Bush
than the Democrats were to Gore.

S: I do not know if I agree with that. There were a lot of Democrats that were
terribly committed to Gore too. The Republicans, as you know, historically, have
higher allegiance factor than Democrats do, in terms of less crossover, more
party-line votes, etc.

P: The U. S. Supreme Court remands the 7-0 Florida Supreme Court decision back
to them. It seemed clear from what Scalia wrote that they wanted an explanation
for the extension of the vote. Do you think it was a failure of the Florida Supreme
Court, in their 4-3 decision on the contest, not to explain why they had changed
that date?

S: Yes. I think they gave the U.S. Supreme Court an opening to attack the decision
more. I have heard other scholars tell me that.

P: Why do you think they wanted just to count the under-votes, in this 4-3 decision?

S: I never understood that exactly. I was not clear on that. It seemed to me that the
vote problem was a vote problem, if you had it ought to be looked at in all its
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dimensions.

P: Apparently, the Gore lawyers were surprised at that.

S: I am told that.

P: That they thought they might get the Palm Beach and the Miami-Dade and
Broward votes counted, but they did not anticipate counting all the under-votes.
Were you surprised at the 4-3 decision?

S: Yes. I think everybody was. I did not even know that was an issue in front of
them at that time. I did not know it was an issue. I did not know that they could
do that, at that time. [That,] of course was a basis for a pretty large outcry,
[people said,] wait a minute, they are going off on their own to try to decide the
election.

P: Did they jump out and take this case, do you think?

S: No, I thought the case got to them in the normal consequential way [that] you
would expect getting there. You had a statewide election [in] which you had
state election law violation issues, liability under the state election laws of the
times for counts and how counts were to be done. I did not think they grabbed it,
but they also did not shy away from it, they were not afraid of it.

P: The argument had been early on, when the 7-0 decision came about, that this is
a Democratic court, they will always vote that way. The 4-3 decision seems to
belie that.

S: No, I did not think that was necessarily true. I thought the only time it was
absolutely predictable was the 5-4 vote of the U.S. Supreme Court. I know a
number of the Democrats who were appointed to the Florida Supreme Court,
many of which are pretty conservative. Charlie Wells [Chief Justice, Florida
Supreme Court, 1994-present], people like that, are pretty conservative guys. As
you know, Wells wrote a rather scathing dissent, and basically said, I think we
are moving into an area that we ought to stay out of.

P: He said this was now creating a constitutional crisis.

S: And that we are creating the crisis by our own activism. I am paraphrasing, but
that is what Wells said. Wells was a close friend and appointee of Lawton Chiles
[Florida governor 1991-1998 (died in office); U.S. Senator, 1971-1989].

P: Do you think that if the Florida Supreme Court, in their 4-3 decision, had set a
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standard that was a catch-22? If they set a standard, the Supreme Court would
say, well, now you are making law. If you do not set a standard, you violate
Fourteenth Amendment.

S: They would have lost because they never for a moment doubted that this was
going to be a case that those justices... the right of the court is much more
activist now, as you know, than the left. The center, really, there is no left on that
court anymore. That left with probably Thurgood Marshall [U.S. Supreme Court
Justice, 1967-1991], maybe William J. Brennan [U.S. Supreme Court Justice,
1956-1990], [who] would be the last two classic New Deal and civil-rights liberals.
There is nobody that you would say was on the left. Stevens was a right-centrist
appointee.

P: He was a [Gerald] Ford [U.S. President, 1974-1977] appointee.

S: He was considered to the right-of-center when he was appointed, [but was] a
centrist.

P: David Souter [U.S. Supreme Court Justice, 1990-present], as well.

S: But [Clarence] Thomas, well, Thomas is Scalia squared. That is the way we
always assess that. I would love to see if he has ever voted differently than
Justice Scalia.

P: Last statistic that I saw was that he has voted with Scalia about ninety-four
percent of the time.

S: So there are times when he has voted different than Scalia? I am stunned, I am
absolutely stunned. Scalia and Thomas, particularly Thomas, he had an axe to
grind here. Let us not forget that. This is a man who went through the most
scathing confirmation in modern history.

P: Well, Robert Bork [rejected nominee by President Reagan for U.S. Supreme
Court, 1987] had a pretty tough time. That would be worse.

S: There were some who went through worse, but they did not get there. I am
saying of people who got on the Court, I cannot think of another one that equals
what he [has done]. He went on the court so crippled that I was surprised he
would even take the position. He was also, without question, the most
undistinguished jurist to ever be put on the court in modern times. In the late part
of the nineteenth century, it was a repose for scoundrels at times, but this guy
had never done anything of any consequence in his legal career. It was a great
moment, almost out of something from Rip Van Winkle, when I woke up and saw
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Strom Thurmond [U.S. Senator from South Carolina, 1956-present] leading the
charge for an African-American judge [who is] married to a white female. [He
was] sitting beside him during the confirmation [and] being praised by Thurmond,
who had been a proponent of miscegenation laws. I thought I had seen it all. I
point that out to you to say, this guy clearly in my mind was going to take every
opening. Rehnquist, no question. Sandra Day O'Connor is a political activist if
anything. On women's issues and abortion rights, Sandra Day O'Connor has
been the deciding vote, because she does follow the politics of the time. Most
people do that. There was not going to be this reluctance on the part of the
Republican appointees, certainly the [Ronald] Reagan [U.S. President 1981-
1989] appointees and the [George] Bush [U.S. President, 1989-1993]
appointees. Think about it, we had [George] Bush appointees deciding about
whether [George W.] Bush ought to win. I do not mean to try to cut-short
analysis, but whenever I talk about it, I do not spend a lot of time on analysis of
this case. This case, in my view, was always about five people who were
committed that they were going to end this election for Bush.

P: As you indicated earlier, this is not going to be cited in precedents.

S: I do not think so. I think they will distinguish and say, write out this case. This
case was a unique moment in history. Fletcher Baldwin [professor of law,
University of Florida] talked to me, [and said] this was a great opening for those
who had been equal-protection proponents, being the new life breathed into
equal protection. I said, yeah, wait until it comes back in another setting; it will go
to the bottom like lead in the ocean. Thunk.

P: One issue we touched on briefly that I would like to expand on. I have talked
with Ed Jennings [Florida state representative, 2000-present] and others and
have found strong feeling in the African-American community that there was
discrimination, that their voter registrations with the motor vehicles never got to
the elections supervisor, that in Leon County there was a roadblock by the
Highway Patrol that day. While that may not have prevented people, per se,
from voting, it put a damper on their voting.

S: Butterworth looked at that and did not find it. Butterworth has been a great
advocate for minority voting rights and certainly not a fan of Bush, and [he] said it
did not happen. Once again, I am not saying that there is not [any
discrimination]. The perception in the African-American community about this
election was that they got hoaxed. They believed that from the outset. They
were tremendously anti-Bush. They voted against Bush in numbers
unprecedented in history. Republicans had been doing very well in the African-
American vote in recent years, percentage-wise. The Democrats still win. The
erosion of the African American vote, but Jeb Bush, not George W., Jeb Bush
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galvanized that vote [with] One Florida [program regarding minority enrollment in
Florida universities] and other things. [They were] so tremendously against him.
Remember, also it was hard pill to swallow that the Supreme Court, [decided] 5-4
with Thomas as the deciding vote. [That] really irritated African-American
leadership and [they] knew the cynicism that had allowed that to occur.

P: This was, by far, the greatest increase in the turnout in the black communities.
Some of them were first-time voters who apparently had not been as well-
educated as they might have been, going to the polls, like in Duval County.

S: Oh, Duval is a mess. There is no question in my mind that if you had counted
the actual intent of the voter in Florida, I honestly believe more people left the poll
that day thinking they had voted for Gore. I believe that, I will always believe
that.

P: Is that the fault of ballot design, machines, or voter error?

S: Yes.

P: All of the above?

S: Yes. All of those things. Education [also].

P: In the Civil Rights Commission Report, one of the things they conclude is that
people were disenfranchised by the process. That is a very toxic term, because
it harkens back to a time of poll taxes, where people were deliberately denied the
right to vote. Do you think that is a little bit overstated?

S: Yes, I do. I felt that Commission appeared to approach this thing [in a] pretty
partisan [manner]. I did not think they had a great deal of independent credibility.
I give them no more credibility in this than I gave the Supreme Court's decision.
I believe it was ultimately [a case of] here is what we are going to find, now let us
go find the reason [for] that [finding].

P: In fact, Abigail Thernstrom [commissioner, U.S. Civil Rights Commission] would
agree with that. She said this was a flawed report, anecdotal, unsubstantiated
testimony. She said that it set back racial harmony.

S: I am not sure that I think it set back racial harmony. Racial harmony had taken a
tremendous blow in Florida for several years before this.

P: I think we have covered most of the major events and issues. Is there anything
that you would like to talk about?
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S: No, I have got to get back to work.

P: With that, we will end this interview and I thank you very much for your time.

[End of the interview.]


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