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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida
Joseph P. Klock
Summary of Interview (November 28, 2001)
Klock explains how he came to be involved with the 2000 presidential election litigation.
He was a legal advisor for Florida Secretary of State Katherine Harris. He describes
Harris as a knowledgeable and compliant client, as well as highly qualified in her post.
Political issues were handled by Republican Mac Stipanovich, her personal lawyer.
Klock defends Mac Stipanovich against the innuendo of bias because of Stipanovich's
image as a hardline Republican.
Klock remembers Harris and her office were left alone during the litigation, especially by
the Republican Party. He talks about his contact with various legal representatives of
the litigants, such as Ben Ginsberg, Phil Beck, and Fred Bartlett. Klock discusses the
strategy of the case, and the fear that lawsuits would be filed in the counties in question.
Klock talks about particulars of strategy for filing the case, particularly noting that a
standard for the recount should be set and the possible outcome as a result. Klock
believes George Bush received the most votes in Florida in the 2000 presidential
election, but believes the television networks influenced the election by proclaiming the
winner before the western part of the country had a chance to finish voting.
Klock briefly speculates on outcomes of balloting in some of the states, as well as his
belief of heavier criticism of Harris's performance because of her gender. Klock holds
Harris in high regard for her ideal of fairness in the case. He says that her role as co-
chair of the George Bush campaign in Florida in no way interfered with her role as
secretary of state. He mentions Bob Butterworth and says had a Democrat been in the
role of Secretary of State, the outcome would have been the same. He discusses the
issues of the ballots. He believes problems with ballots should have been dealt with
ahead of time.
Klock mentions the problem of determining a standard for intent of the voter. He
describes the hanging chad and elaborates on the necessity of following the law. He
notes the information leaks from the Supreme Court of Florida, and briefly describes
qualities of the justices on the Florida Supreme Court. Klock goes over some questions
such as normal balloting procedures. Klock talks about the Florida Supreme Court in
context of the election results.
Klock discusses his advice to Secretary of State Harris. He talks about the absentee
ballots, discussing reasons for invalidation and Harris's authority for resolution. Klock
stresses maintaining the standard already recognized for accuracy. He discusses how
the decisions of the Florida Supreme Court fit into the emerging picture, and says they
OEH12 HYy 2
were basically rewriting Florida election law.
Klock criticizes the Gore team's legal approach. He discusses criticism of Harris's
actions. He discusses Beckstrom vs. Volusia County. Klock brings up the point that
election results in Florida can be remedied far after Election Day, unlike in a federal
election. Klock discusses how the ballots were handled too casually in some of the
counties in question. He discusses the hold on certification of the election after Gore's
request for an emergency ruling on November 17, 2000, and talks about the arguments
three days later concerning the legal standard. He discusses the final decision on
November 26, 2000, vindicating the will of the voter.
He adds that the Secretary of State has to follow the statutes. He brings out that the
Florida Supreme Court worked very hard to assimilate the mountainous material and
interpret it to the law. Klock discusses the U.S. Supreme Court's position about the
Florida's Supreme Court changing election law and precedents for their decision. He
expands on the possibilities of how the president could be elected under the
circumstances. He discusses the problems of the decisions. Klock discusses the
events in different courts, such as the conservative Eleventh Circuit Court.
Klock discusses the role of those involved, such as Judge Nikki Clark and Judge
Sanders Sauls. Klock talks more about his role in the proceedings and strategies to
change the number of votes at the bottom of the TV screen. He thought it was good
news when the challenge to the military ballots was thrown out. He discusses the final
vote of the U.S. Supreme Court and Judge David Souter's dissent.
Klock speculates on possible outcomes with no elected president at the end of the
outgoing president's term. He discusses the dissent of Chief Justice Charlie Wells of the
Florida Supreme Court. He believes the U.S. Supreme Court acted correctly. People
backing Gore say the U.S. Supreme Court acted incorrectly and people backing Bush
say the Florida Supreme Court acted incorrectly. Klock believes the U.S. Supreme
Court acted correctly. Klock remembers his exciting experience before the U.S.
Supreme Court and the impression each justice made upon him.
Klock addresses a mix of ideas, including his opinion of the performance of Ted Olsen
and David Boies and an interesting negative assessment of Alan Dershowitz. Klock was
surprised that the U.S. Supreme Court "stepped up to the line" and used the "equal
protection" argument, which he believed was something they did not commonly do.
Klock discusses various points of view associated with the U.S. Supreme Court
decision. He believes the decision was ultimately a pragmatic one. He concludes the
interview with observations of how the experience has changed his life. Though a
Democrat, Klock is clear in his mind that the right person got into the White House and
the Harris, played a big part in the outcome.
Interviewee: Joseph P. Klock
Interviewer: Julian Pleasants
Date: November 28, 2001
P: This is Julian Pleasants and I am in Miami, Florida. It is November 28, 2001, and
I am at the offices of Joseph P. Klock, Jr. Explain to me how you were chosen to
be the lawyer for Katherine Harris [Florida secretary of state, 1998-present] and
who contacted you.
K: Vicki Weber, my partner in Tallahassee, was contacted by the general counsel
for the Secretary of State, on the Sunday after the election, in the evening,
sometime. She called me and we had our conflicts cleared up, by the next
morning and came aboard.
P: Steele, Hector & Davis has generally been known as a Democratic law firm. Do
you think it was a deliberate choice to pick a Democrat?
K: I do not know the answer to that. The Secretary of State's general counsel is a
Democrat. She is a Democrat and Debie Kearney is a Democrat. I have always
assumed that she was. Vicki Weber, my partner is a Democrat and I am a
Democrat. I think that Debie just wanted horsepower. She had a lot of
responsibility and she needed to have a firm with the resources that could help
P: Why didn't they want to try to do it in-house?
K: They could not. It is too much work. Debie was intimately involved every step of
the way. We were working as a team with both her and her deputy general
counsel. There was no way that she could possibly keep up with that because
she also had all of her regular duties as well.
P: Explain the process you went through when you first met with your client and
how you advised her as you went along.
K: I talked to the secretary first probably on Monday, the day after, [and I] talked to
Debie Kearney on a regular basis. The first thing that we did was, we went to
West Palm Beach that Monday because there was a hearing that had been
scheduled before one of the circuit judges there that had to do with the ballot in
Palm Beach County. That was a cast of thousands. My partner John Little went
over from our West Palm Beach office. I joined him. We appeared before that
judge. If I remember correctly, he was disqualified from the case. He recused
himself late that afternoon, but everyone was at that particular hearing. After
that, I think I went back to Miami, although I may have stayed overnight in West
Palm Beach and then the next day [I] went to Tallahassee along with my partner
J.B. Murray, who we dropped off in Orlando because he was appearing in front of
a federal judge in Miami on another case that had been filed. They wanted me
in Tallahassee on Tuesday to meet with her and to deal with the issues that
came up as a result of Judge [Terry] Lewis's [Leon County District Court Judge,
1988-present] injunction that had been entered. We met Tuesday afternoon with
the secretary and with Debie Kearney, just discussed the issues generally. The
other thing we did during that day was to try to organize how we were going to go
about dealing with what was happening, because cases were being filed by the
hour. We had to come up with a method of dealing with all of them. Basically,
what we did was decide we would assemble teams that would deal with courts.
We assigned a team to each judge that was getting cases. J.B. Murray was
assigned to handle the federal cases in Orlando [and] John Little was in charge
of anything that was being filed in West Palm Beach.
P: Was that Judge Jorge LaBarga's [Palm Beach County Circuit] court?
K: It ended up in front of Judge LaBarga; it did not start out in front of Judge
LaBarga. I cannot remember who it started out in front of. [It started out in front
of] one of the other judges who was disqualified. Then, in Tallahassee, the way
we worked it out was that John Little was in charge of the federal district court up
there. John Sjostrom handled everything in Judge Nikki Clark's [Leon County
Circuit Court] courtroom and also, I believe, in Judge Terry Lewis's courtroom.
Gerry Gibson and I handled anything going on in Judge [Sanders] Sauls's
[Florida Circuit Court] courtroom. Judge [Ralph] Smith [Leon County Circuit
Court], I think Vicki Weber and John Sjostrom handled that. John was just
appointed yesterday by Governor [Jeb] Bush [Florida governor, 1999-present] to
the circuit court in Leon County. A very, very fine [attorney], it was a terrible loss
to the firm. Good for the state, bad for us. Overall, in my view it is bad. Very
good for the state, but very bad for us. Then we set up a separate team
ultimately that dealt with the appeal to the Eleventh Circuit that was operating out
of West Palm Beach. John Little handled that along with J.B. Murray and a
couple of other younger lawyers in West Palm Beach. The Supreme Court of the
United States, we handled out of Tallahassee. I headed that team, John Little
again [was on that team]. Anything that really had to do with the federal courts,
John would swing back and forth and handle. [To handle] the Supreme Court of
the United States, [we had] myself and John Little. John is our administrative
partner in the West Palm Beach office, a very, very good trial lawyer in his mid-
40s. The other members of the team were all junior lawyers: Arthur Lewis,
Ricardo Martinez, Sid, and Gabe Nieto. That is how we staffed it. Tom Carr,
who is one of our litigation partners here in Miami, also in his mid-40s, was sort
of utility in-fielder. Tom would make sure that any projects that were underway
were being carried through. He had sort of a SWAT team that would move from
project to project whenever they needed additional horsepower. Donna Blanton
was dealing with anything that had to do with the Supreme Court of Florida along
with Vicki Weber. The two of them concentrated on the Supreme Court of
Florida. I think that was about it.
P: When you started, did you have any idea how complicated and stressful the
process would be?
K: No, not at all. As a matter of fact, it was really hard to tell. The fact is, that in my
career and a number of my partners' [careers], handling high pressure, short-
term projects is something that we do on a regular basis. The guy who is a
master of that, who taught me, is Sandy D'Alemberte, is now the president of
Florida State University. I worked under Sandy for a number of years. He is one
of the most outstanding trial lawyers ever to practice law anywhere. Obviously,
[he is] an outstanding public servant, bar leader, everything else. Sandy has
done it all, but Sandy loved them [cases] fast and dirty. The faster, the harder,
the more complicated, the more facts there were, the more papers there were,
and the shorter the time, the happier Sandy was. Sandy loves to get in there and
the man could just work [for] hours and hours and hours. My first real experience
with him in a really complicated case was the license challenge for Channel 10
down here in Miami. They used to have this charming little ritual where you had
to reapply to the FCC [Federal Communications Commission], then what
happened is the minority-group-du-jour would file against you. They would hire a
law firm, they would scurry about, the dominant licensee would then pay a huge
amount of money to them to go away. You spent your time running around
asking people how valuable the useless programming on Sunday morning was,
how community-serving it was and that kind of thing. There was a major
challenge to Channel 10's license on Post-Newsweek [owner of Channel 10] and
D'Alemberte killed them. As a matter of fact, that was the beginning of the end of
They got whipped so badly in that thing that they were not going to do it again.
Sandy just deluged them. He got affidavits and different kinds of evidence from
all kinds of people. That was my first experience [with D'Alemberte]. After that,
there was a case in the northern district of Florida before the famous Beau
Arnot, a United States District judge who decided that sketch artists were not
only not going to sketch from his courtroom, but they were not going to sketch
from memory either, outside his courtroom. Sandy D'Alemberte went up there; I
was his lieutenant on that case. We just went through hell for the better part of a
month. It took eleven appeals to the Fifth Circuit Court of Appeals, [who]
reversed Arnot three or four times. Sandy almost never disliked anyone, did not
dislike Arnot. Arnot was from a different time and he just was not going to have
that stuff going on his courtroom. The Fifth Circuit reversed him a couple of
times. In any event, it was from Sandy that I learned the idea of how to staff and
handle these heavy cases. The trick is to decentralize them. One of the things
[that] I think makes a big difference in our firm is that we are very team-oriented
and we are very non-competitive with [each] other. That makes an enormous
difference. Litigators are by nature a very feisty lot, they are very independent
and they tend to be very egotistical. All are very important qualities in a
successful litigator. I think our people do all those things and they have to, but
not among each other. The team approach made a big difference. If I had to go
to court or something, I could literally stick out my hand and know that whatever
was put in my hand would be okay. I could also work with people and know we
could talk about ideas, and [that] we [could] change them. I could change where
I was going, the direction I was taking. There is no ego involved, one with the
other. We are a very solid team and that makes a big difference.
P: When you started out, were you the primary person giving legal advice to
Katherine Harris and, in general, did she accept your advice?
K: Both Donna Blanton, who is no longer my partner, she is now with the Katz
Kutter firm [and is] just an outstanding lawyer, [a] former reporter, and Vicki
Weber had very close contacts with Debie Kearney. The first spokesman dealing
with it was Donna Blanton, [who was] on the scene handling press inquiries and
that kind of thing from the secretary. The secretary was basically very good
[with] whoever it was that we had briefing her on a subject. I would say that she
is the best public official client I have ever had and probably one of the best
clients all over, in terms of somebody who is able to operate cooly under fire. If
we gave her some legal advice, she wanted to know why we came to that
conclusion [and] what other positions you might be able to take. She wanted to
know what the risks were that were involved with being right or wrong. She
occasionally would read cases. If we kept talking about a case, she would say
let me see that [and] she would read the case. She made every decision in our
presence. There was this suggestion that she was getting instructions from
Texas, which is just nonsense. I mean, she was sitting in the room with us, we
would present something to her, she would make a decision in our presence and
then we would execute. Did she ever not follow our advice? I do not think so, at
the same time, it might change depending on different factors that are coming
along. People try to paint her as if she is some sort of intellectual lightweight.
The woman has an MBA [master's in business administration] from Harvard and
you can tell when you deal with her [that] she is very intelligent. She is very
quick. She is excitable because she is a type-A personality. She would roll into
the office at 9:30 or 10:00 in the morning and she would leave us at 9:00 at night
and still have other things that she was doing, and frequently would end up
eating dinner at 11:00 or 12:00 and then roll back in the office the next day again,
ready to go.
P: What influence did Mac Stipanovich [chief of staff for Governor Bob Martinez]
have on her?
K: Depends on who you ask. If you ask Mac, I think he would modestly allow that it
was an enormous amount. I think that she listened to everybody that had
anything to say. Mac was her personal lawyer that had come aboard to counsel
her. I think Mac Stipanovich is an extremely intelligent person. We would cross
swords from time to time, but professionally she would listen. She was interested
in why Mac had his views and why we had our views. I think that in terms of
political advice, I think Mac and her other political advisors obviously swayed
that. That was not what I was interested in, or our people were interested in. We
did not give political advice. If she asked us about things that might relate to
politics, we would offer it, but I think Mac helped her a great deal in that kind of
thing. I think he was very helpful in terms of the team because he is very bright
and he had his own perspectives. But there were some things that he wanted to
do that we did not want to do.
P: For example?
K: Strategies as to how to go forward on things. One example, when the certificate
came down on [November] 26, we wanted to have both the number that was
there, plus the default number if the Supreme Court was reversed for any reason.
Mac did not think that that was a good thing to do, but we insisted that it be done
and the secretary went along with it. I think Mac thought that it might upset the
Supreme Court of Florida, although I found it very difficult at that point to imagine
what could upset them more than they obviously already were. He went along
with that. A lot of stuff Mac was doing was political and that really did not involve
P: Some of the critics say that it was bad judgment for Katherine Harris to have
somebody like Mac Stipanovich, who is known as a hardline tough Republican
operator, actually in her office, making it look partisan rather than non-partisan.
K: Look, I am a Democrat, I have always been a big supporter of Bob Butterworth
[Attorney General of Florida, 1986-present]. Based on what Bob was doing on
the other side of the hallway, it would be impossible for anyone to look more
political. I also think that her attitude is that she wants the best advice she can
get. The thing she kept stressing all along was, [is that] she did not know
whether or not she would have any political future one way or the other. She
was determined that she was going to do her job there correctly. If I were doing
it all over again and I could arrange the cast of characters, would I have wanted
to have Mac Stipanovich there? The answer would be yes. I think he had a very
valuable perspective and it is one that I do not have because I come from a
different political background. I think his advice was very good and I think she
would have been ill-advised in something that crossed back and forth between
politics and law to simply be in the hands of people that had a perspective that
was different, politically, [from her own]. I had never before been in a situation
where almost every name that I heard I did not know who it was. Someone
would say, oh so-and-so is calling. I had no idea who they were, I just did not
know any of these people. I would start getting e-mails from people I had never
heard of before because they simply did not [cross my path]. I mean, I am a
Democrat. I have always supported people that I thought did the best job. I
always supported Connie Mack [U.S. Representative, 1983-1989; U.S. Senator,
1989-2001] even though he was a Republican. But I did not know any of
Governor [Bob] Martinez's [Florida governor, 1987-1991] people. To me, he was
like Darth Vader [evil character from the movie Star Wars], certainly I did not
have any interest in anybody that worked for him. I knew Mac [Stipanovich], I
had met Mac a couple of times. I was always intrigued. Mac is a renaissance
man. He had been chief of staff, I think, to Governor Martinez. Mac is a
gourmet chef, and he has taken courses in cooking all over the place. If I
remember correctly, he was working either on his PhD in philosophy or his PhD
in classical languages about the time that all this was going on. He is a very
interesting guy. If anything, I think Mac likes to appear like [a] bad boy whenever
he can, even when he is not.
P: Did Governor Jeb Bush or Frank Jimenez [chief lawyer, deputy chief of staff for
Governor Jeb Bush] have any influence on any decisions that Katherine Harris
K: Katherine had a conversation with Governor Bush, I understand, the evening of
the election on one or two occasions. From the time that we were there, and
starting before, she had no conversations with Bush until after December 12.
Frank Jimenez, I doubt, had any conversations with her at all. She gave
instructions that nobody from now-President, then-Governor [George W.] Bush's
[U.S. President, 2001-present; Texas governor, 1995-2001] office was to have
any contact with anyone in the office. I had to go to her to ask permission to be
able to talk to the lawyers representing Bush because I also had to talk to the
lawyers representing [Al] Gore [unsuccessful Democratic presidential candidate,
2000; U.S. Vice-President, 1993-2001]. It was not possible, particularly since
Judge Sauls insisted we were all on one side. I [fought] with him about that, but
Judge Sauls is extremely strong-willed, so he got his own way. It was his
courtroom and he got his own way. We had to deal with [the attorneys for
George W. Bush] because he was basically having us divide time with them. So
she said, I understand. She said, limit it to things that have to be discussed as
far as law is concerned. I remember at one point in time, it must have been
about December 2 or 3 or something like that, this is a year now since it has
happened. December 2 or 3, Bruce Smathers [Florida secretary of state, 1975-
1978] walked in with some state senator. Maybe it was later, [December] 4 or 5,
something like that. I happened to be cruising into the office and passed by and I
saw the secretary standing by her desk and she waved me in to her private
office. I said, hello to Bruce, who I have known for a couple of years.
P: By the way, he was Secretary of State at one time.
K: Bruce was saying, we will not stay for a long period of time because I imagine
you have all kinds of people stopping in and seeing you. She said, well, you are
the first Republicans that have stopped in to see me since this began. She was
basically a pariah, as far as the organized party was concerned. No one would
stop in and see her. Other than Mac and some political consultant that she has
used named Adam Goodwin or Goodlette from the west coast of Florida [a]
nice guy, not a big splash kind of guy. Her chief of staff who was very politically
savvy, I cannot remember anybody coming in there of any weight. Of course, I
probably would not know who they were anyway. Her staff [people] were the
only people that were ever in the office. Clay Roberts [director, Florida Division
of Elections] would come down, obviously because he was on the election
commission, a very key player. There was no contact with people from the
P: When you had contact with the Bush lawyers, did you talk to people like Ben
Ginsberg [attorney for George W. Bush in 2000 election]? What kind of strategy
did you talk about?
K: I talked to [Ben Ginsberg] on a number of occasions because Ben was leading
the operations down here. I also talked to Phil Beck's partner, the lead lawyer in
that firm. I have known him since I was a kid, as a young lawyer because I used
to run into him in the American Lawyer roundtable things. I would deal with him
all the time because he, in my mind, was the best trial lawyer they had on their
side, so he was the guy I would talk to. Ben was in charge of overall strategy.
Fred Bartlett, if you name the top ten trial lawyers in the United States, Fred
Bartlett's name is going to come up. Fred was their top trial lawyer. The Bush
people were madder than hell when we filed a petition in the Supreme Court of
Florida on Wednesday.
P: That was to stop the recount?
K: No, ironically I think that is one of the most significant things that occurred during
the entire battle. That was not what we filed it for. We were sitting down, we
were talking about how we were going to handle this. We were afraid that they
were going to file lawsuits in every one of the counties because that was what
was being talked about. We had lawsuits in Miami, Fort Lauderdale, West Palm
Beach. We had actions pending in the Third District Court of Appeal, the Fourth
Districts Court of Appeal, the First District Court of Appeal, cases pending in
Leon County. We had something filed over in the panhandle [of west Florida].
We had something filed in the United States District Court for the Northern
District of Florida, the Southern District of Florida, the Middle District of Florida.
We ended up with cases in the Florida Supreme Court, the Eleventh Circuit, and
the United States Supreme Court. We had cases being filed in federal courts in
Kentucky, Georgia, Pennsylvania, and a couple of other states. One of the
things that we were concerned about was that the contest phase, we knew, had
to be filed in Leon County.
Our recommendation to the secretary was, we need to get somebody to get all of
this stuff in one place otherwise there is going to be no way of getting any of this
done in an expeditious fashion. We recommended to the secretary that we ask
the Florida Supreme Court on an extraordinary writ whenever D'Alemberte
wanted to do anything, he would just file a writ somewhere, so I learned so we
filed an extraordinary writ in the Supreme Court of Florida and basically said to
them, take all of these cases and put them somewhere. Either appoint one of the
justices of the Supreme Court to be a special master, consolidate it all [in] one
county, which we thought the best would be Leon County, because you could go
right from the protest phase into the contest phase in the same court, sort of
seamlessly. We asked the court to, number one, consolidate all cases in one
case either under a justice as a special master or under a circuit judge. Number
two, articulate what the standard was going to be for review because there was
no standard for review, which is I think, ultimately [was] the fatal flaw that the
Gore people had. [We had] an afterthought, from which developed the two-hour
rule. This we had not discussed with the secretary but we talked to counsel about
it. This was a decision that was made at 1:00 in the morning. Those two she
had approved. The third one was saying, what we should probably do is, ask the
court to freeze any counting that was going on until they could take the case,
establish the standard, and decide how it was going to be done, which we
assumed they would be able to do pretty quickly. Well, we filed at 3:00 in the
morning. We called the clerk of the court and told them we would be filing and
the clerk had someone stay there. At 3:00 in the morning, he met us there and
we filed the papers at 3:00 in the morning on Wednesday morning.
The Gore people had-a-bird when they saw this thing and all they did was focus
on the stopping of the count. Their spin doctors immediately began spinning
about that and the irony, of course, is that the only thing that could have made
this come out any differently would have been if it had all been consolidated in
one place and a standard had been articulated early on. Ultimately, one of the
reasons the [Supreme Court of the United States] threw this out was [that] there
was no standard. The only standard that existed was the composition of the
contest [canvassing] board in each of the counties, which had to be composed of
a county judge, someone from the county commission, and the director of
elections. The standard was, what the voters' intent was, but it was not
articulated how you measured that standard, it was the composition of each one
of those things. We thought that it would just be awful, it would be a completely
P: Which it was.
K: We told the secretary that this would be very unpopular with the Bushies. She
did not care. She said that was not who she was working for, it was not who we
were working for, do it. She had not authorized that last thing. The next day
when the crap hit the fan, I walked into her office at one point. She looked at me
and she said, okay, when this is all over, we talk about that one. I said, okay that
is fine, that is fair. That was it. She said, I put up with a lot of crap about this all
day, I have had a lot of criticism. She does not like being criticized. I can
understand that. She said, bygones are bygones. The Supreme Court of Florida
immediately rejected our petition without prejudice. From the get-go, she was
the only person out there that I saw who was operating by what she thought was
right. That clearly was something that would have antagonized, but there was
nothing we could do about it, it was the right thing to do as far as she was
concerned. Her job was to try to do her job as best she could. After that, after
the Gore people crapped all over that thing and threw out the baby with the bath
water, they had basically sealed their own fate, as far as I was concerned.
P: Most of the Gore lawyers wanted to stay in the protest phase. I have talked to
Dexter Douglass [attorney for Al Gore in 2000 election] and he said that it would
have been better to go immediately to the contest phase and had that happened,
perhaps Gore might have had a better shot.
K: Dexter is absolutely correct. I will tell you why [the Gore lawyers felt that way].
There was only one number that the Gore people were focusing their attention on
and that was the little ticker-tape strip that was running underneath CNBC,
MSNBC, and CNN that indicated the number of votes in Florida. That was the
number they were concerned about. They had to change [that number]. I do not
know if you have talked to David Boies [attorney for Al Gore in 2000 election] yet.
David Boies is a brilliant lawyer, he is a good friend of mine, he did an
outstanding job. The big M.O. [modus operandi] was that line [and] that line had
to be changed. Forget about this court, that court. There was only two things
that were important in the entire world: the Supreme Court of Florida until the
Supreme Court of the United States got involved and that number that was
running across the bottom of the TV screen.
P: The idea was if they could change the numbers in favor of Gore, they could get a
K: That would have made all the difference in the world in their perception. I think
they were probably right. They did not know. They picked three counties, four
counties where they thought they were strong. They had no idea where they
were in the other counties. Consequently, one of the primary rules of lawyering
is, you never ask a question if you do not know what the answer is in an ultimate
form. They would have to make that decision again. Here we are a year later,
and people are still sifting through the ruins of this election trying to figure out
what would happen. In most instances, except for maybe one or two out of
twenty-five different scenarios, Bush still wins, but not by much. My personal
belief is that Bush would have won by a substantial margin if the networks had
not called the election when they did. Not only did it affect the panhandle of
Florida, [but] why in God's name is somebody going to wander out in the Central
Time Zone, the Mountain Time Zone, or the Pacific Time Zone to vote for a
loser? They say, it affects both sides. That is not true. I do not believe that is
the way psychology works. Everybody wants to be with a winner. I think if early
on, [they] announced that one guy is going to win, if anyone is going to go out
and vote at all, it is the people who are going to go out to vote for the winner. I
voted for the guy who won. Be that as it may, all of the political commentators
were saying that they thought that Bush would win the popular vote but lose the
electoral count. That is not what happened. Gore won the popular vote. Why?
Because the networks delivered. They delivered early on. I do not think that is
what they intended to do. All they were concerned about was being the first one
to make the announcement.
The fact is, none of them were heartbroken by that result. That is why, I think,
the result was opposite [to] what they thought was going to happen. The people
did not come out to vote. That is what you ended up with. At the end of the day,
Florida was important, but there were a bunch of other states that had made a
difference too. New Mexico and a few others that could well have gone over to
the Bush side, and you might have ended up with at situation where Bush had
won by two votes or three votes where Florida may have made a difference. If all
the things in Florida went the other way, Gore would have won, except that if you
balanced everything that was wrong, then the networks also would not have
made their announcement and Bush probably would have won Florida even if
you did not have the problem with the butterfly ballot and all that kind of thing.
The only thing that I was focused on, once it became clear to me that the only
thing that mattered was who won or lost, and not the process, [was] that we went
in there and we did the right thing on Wednesday. After that, our object was to
uphold what the secretary did, if we thought the secretary was right. That is what
we did. Everything was focused on upholding what she had done, if what she
had done was correct in our analysis and in her view as well. I will not criticize
anything the woman did, I think she did a fantastic job. My personal belief is that
she will be vindicated, as far as history is concerned, and it will be viewed as
being a heavily anti-female thing, which it was. She also jumped on me for
having said this because I said it on TV. Floyd Abrams's [attorney] son, Dan
[legal reporter], wears considerably more makeup than the secretary of state
does and for the same reason, because he is appearing on television. The
secretary's complexion is very, very fair, as is Dan's. If you do not wear makeup,
you will look like a ghost. The fact of the matter is that people wanted to attack
how she dressed and what she wore. It was ridiculous.
P: They called her Cruella DeVille, that kind of thing.
K: When she saw the thing on Saturday Night Live [comedy show on NBC] about
the ambassadorship, she roared, she thought it was just a riot. She has got a
very good sense of humor and she does not have a problem laughing at herself.
She obviously was hurt whenever anything that would be said that was just nasty
and cruel. She did not understand why everything that she was saying was
viewed as being political, and yet everything that Bob Butterworth said, that was
just fine. You would be hard-pressed to find someone that operated more from a
political point of view [than Bob Butterworth]. He started issuing opinions on
elections law, when it is not within the jurisdiction of the Attorney General. He did
everything you could possibly do that was political, in my viewpoint. That did not
really bother me, what bothered me was that people would say that she is
political, but he is [not]. You tend to get involved if you are with somebody as
long as we were with her. You will not find anybody on our team that is not very,
very high on the secretary all the way up and down. Anyone who met with her
and dealt with her [felt the same way]. She always treated people with the
utmost of courtesy. She always listened. She was a great client.
P: Was it a bit of a gamble to file this brief with the Florida Supreme Court because
they could have gone to the contest? Then it would be technically in the hands
of the judge and, the key is, would have been what judge you had.
K: The point was [that] her job was to get the vote done correctly and get it over
with, not to pick the President of the United States.
P: Was it a mistake in judgment, obviously in hindsight, for her to be on the George
Bush election campaign?
K: Nonsense. She was co-chair in Florida for George Bush I am sure, because she
was the most highly-placed Republican woman in the state of Florida. Bob
Butterworth, who is the Attorney General of the state and the chief legal officer,
as he announced several times during the thing, was the sole campaign
chairman for Gore in the state of Florida. My bet is that I had more to do with
running George Bush's campaign in the state of Florida than Katherine Harris
did. That was when she was a co-chair.
P: Was that just an honorary position?
K: I would think so, I do not know. I never even discussed it with her. I am sure as
we go through the process of fixing the appearances, as far as substance, that
something will be done about that. That is just a non-event. It is the same issue
you always have with judges. If we elect judges, we have to make political
contributions. If you make political contributions to a judge, there is always the
question as to whether or not that influences the judge. Last night, I was at a
reception for a legislator. There was a basket there for people to put
contributions in. A couple of people would just walk up and just crassly hand a
check to the candidate. That is not a good system, but it is the only system we
have. You have to count on people who are elected to rise above that kind of
thing. What else can they do? They have to raise money to get elected. I wish
they would not do that. It costs me a fortune. The fact of the matter is, what else
can you do? There is no other way of doing it. I know that she supported
George Bush, [and] I know she wanted George Bush to win. One point in time,
when we were going over [things] one weekend, I had a couple of people call
and say, you know, what is going to happen if the count goes the other way?
She is going to certify it the other way. There was no question about that, that is
exactly what she would have done.
P: Also, people have argued that had it been a Democrat in that office that they
would have acted in the same manner as she did. In other words, it did not
matter what political party was in that office.
K: I would say that as far as she was concerned, it did not matter that she was a
Republican. I think it would depend on who the Democrat was. Bob Butterworth
did not give any indication that he was operating in a nonpartisan fashion. I
assume if Bob had been in there, that he would have tilted things any way he
could toward the Democratic side.
P: What was the Bush national campaign's response to this brief you filed?
Obviously they were not happy.
K: Ben [Ginsberg] was not happy and he told me. He said, I do not like this. I said,
well, that is a shame. There is nothing much I can do about that. He said, you
said this is not good for the governor [George W. Bush]. I said, that may be the
case too, but the secretary is not working for the governor, we are not working for
the governor. We have to do what is right. To his credit, he called back about
two hours later and he said, I certainly hope that you did not think that I was
trying to intimidate you. I said, no I did not [think that] at all. Number one, how
could it intimidate me? I could care less. He is a very nice guy, I like Ben a great
deal. He said, you are right, you did what you were supposed to do and that is
fine. As it turned out, it did not cause him any harm anyway because Gore
people just dumped all over it stupidly.
P: Did you have any contact with James Baker [U.S. secretary of state, 1989-1992;
campaign manager for President George Bush, 1988]?
K: I met him in the courtroom in the Supreme Court. [I] walked over and said, hello,
Mr. Secretary. He said hello to me. It was the only contact I ever had with him.
P: Early on, did you set up any specific legal strategy that you intended to follow all
through this contest?
K: Once we filed the petition in the Supreme Court of Florida, and that was rejected,
the object was to uphold the secretary. What did that mean? Our view was that
you either count all of the votes or you count none of the votes. Therefore
anything that we could do to stop them from counting something other than all
the votes, I tried to do. Consequently in front of Judge Sauls, when they wanted
to bring up this number of ballots, I said, okay, fine, bring them all up. It was my
view that someone could criticize Judge Sauls for not counting 16,000 votes.
They could not criticize Judge Sauls for not counting 300,000 votes.
P: In every case, your objective and I guess the national campaign as well, was to
prevent the counting of the votes and get the election certified as soon as
K: No, not prevent the counting of the votes, I wanted all the votes counted. You
count all of them or you count none of them.
P: Another sort of a mantra that I think you repeated several times is that a large
portion of the problem that you saw was voter error. The Gore people had
confused the concept, they kept saying that these votes had not been counted,
you were saying that they should not be counted. Did you pursue that in almost
K: Yes, including the Supreme Court. When Justice [Stephen] Breyer [U.S.
Supreme Court, 1994-present] said, what constituted a legal ballot as far as you
are concerned? I said, one that you push the prong through the [card]. I have
been using a punch ballot in Dade County. There is a big sign there that says
[what you are supposed to do]. I have been doing this for years, you take the
ballot out, you turn it to the other side and you see if anything is hanging. They
would never talk about it. Apparently professional voting government officials like
county elections supervisors, when they go to conventions, they have an
acronym, TDTV, too dumb to vote. There supposedly is an understanding that
there are people out there that are simply too dumb to vote and there is nothing
you can do to solve that problem. When I would sit in court, particularly in Judge
Sauls's court, some of this would just go on and on and on, I would get bored. I
started to take some of the exhibits that the other side was putting on, which we
really did not get much chance to look at ahead of time. The statistician they put
on from Yale, I refer to as the nice young man from Yale, and he was. Statistics
is a whore's game to start with, but you should at least dress it up a little bit. The
fact of the matter is, if you take all the votes in the state and you look at all the
punch card ballots, and you look at all of this, you can come up with some
numbers. Well, big deal. The fact is, punch cards were used in most of the
counties of the state. If I want to compare punch card versus optical scanner
versus the more sophisticated one that they had in one county, what you do is,
you try to find two counties that are in the same demographic area that used
different techniques and compare them. We were able to do [that]. I wanted to
cross-examine the expert and I figured, hell, I am not going to do this because I
do not have enough time to do it. Afterwards, by the time we got to the Eleventh
Circuit, I did. If you compared two north Florida counties, I think it was Gadsden
and [another county], two north Florida counties, one that used optical scanner
and one that used the punch-card ballot, you have a higher voter error in optical
scanner than you have in punch card. Same demographic area, same relative
number of voters in both counties. The problem was not necessarily the
technique. The problem simply is that people are not always careful [in] doing
what they are doing. The other thing that is unfair, on a uniform basis was, did
African-Americans get disproportionately impacted by this? Yes. Did they get
disproportionally impacted because they are African-Americans? No. Did they
get disproportionally impacted because they are lesser-educated, as some
people would say? No. The fact is, is that they were discriminated against to the
extent that they were because they were new voters. They were first-time voters.
There are patterns that first-time voters have and there is a much higher
incidence of error in first-time voters. Because of the One Florida thing, that
caused a lot of African-American voters to come out for the first time, there was a
higher percentage of them. Wherever there is a higher percentage of first time
voters, they are impacted.
P: Let me start asking about some of the cases. The first case is the Andre Fladell
v. Palm Beach County Canvassing Board. The case was about butterfly ballots.
What did you think of the case presented by the Gore lawyers that essentially
said that this was an illegal ballot?
K: It was a marvelous argument but it had no remedy. There [were] no damages,
what can you do? Okay, fine, you are right. Here is the problem. In any
situation, if you have bad law or bad facts, you are much better off to defend a
situation where there is bad law [rather] than bad facts. What did they have
going for them in Palm Beach County? The elections supervisor was a
Democrat. She designed the ballot and ran it by both the Democratic party and
the Republican party. She published it in advance of the election. She distributed
sample ballots. What was the problem with the butterfly ballot? They got the
wrong results. All of the poor and downtrodden that they are so concerned about
on a nationwide basis that are using these horrible punch-card ballots, where
were they for the past forty years? They did not care because they won. If they
won, they did not care. If they lost, we had to hear and read about all this tripe
about people's constitutional rights. The primary thing that I learned in this entire
thing is that if you want to maintain the integrity of the electoral process, fix it
before the election. Once you have the election, everybody, except the smallest
number of people that do not require you to take your shoes off to count, puts on
their stiletto heels, their short mini-skirts and attaches the riding crop to the right
hand. The only thing that makes any difference is the result. The rest is all
window dressing. The only real way to deal with these things effectively is to fix
them ahead of time. If you have to do it afterwards, then you have to follow
whatever the law is, which is the mantra that the secretary kept saying. I am
trying to follow the law, what is the law? What am I supposed to do?
P: In this case, you say no remedy because you cannot revote?
K: You cannot revote, yes. So fine, it is an illegal ballot.
P: I thought it was interesting that in Palm Beach County, ninety-six percent of the
people voted correctly. That is a fairly high percentage, is it not?
K: Yes. If you are a history professor that means you probably had a fair number of
sociology courses in your background.
K: Statistics and that kind of thing?
P: Not statistics.
K: The thing is, if you do a study on a county-by-county basis, where do you think
the highest level of voter performance was? Which county?
P: I would not know. I would say Alachua County or Leon County because they are
highly educated. [Alachua County is home to the University of Florida; Leon
County is home to Florida State University.]
K: Exactly, and that is exactly what it was. The best county was Alachua County.
The second best county was Leon County. Why is Alachua better than Leon?
Because if you look at the overall population of Alachua County and then you
look at the percentage of people that are highly educated, it has got the highest
ratio. There may be, on a numerical basis, more of them in Tallahassee, but not
the same percentage. I believe that Alachua County [had] one quarter of one
percent bad votes. It is an educational process.
P: Of course, both of these had precinct-based scanners which also reduce the
number of errors.
K: But they had those in Gadsden County too. Seriously, there is no difference
between punch card [and optical scan]. I was sitting in court, I started to take the
map of Florida, I started comparing counties with the two of them. I found there
was not one county [of] about the same size where punch cards had a higher
percentage of error than the optical scan. Not one.
P: In this process, are you trying to get your cases out of the Florida Supreme Court
and into the federal courts because you believe you would have a better chance
K: No, I was shocked at what the Supreme Court of Florida did. [End Side A: 1]
P: In every state, state election law is the fundamental law controlling elections in
the United States. In Florida, election law emphasizes the will of the voter.
These are pretty broad terms. How did you legally deal with this kind of issue?
The Gore people kept saying, what we have to do is rely on the intent of the
voter. If you deny votes, you deny basic rights.
K: Problem was, there was no objective standard to govern the intent of the voters.
To my way of thinking, number one, the Florida statute for protests was never
designed to handle anything where an election traveled out of more than one
county. The idea is [that] you have three people, they look at a ballot, they make
a decision. How could that possibly apply on a statewide basis? You have sixty-
eight [sixty-seven] different standards that are being applied. The fact that it
used the same arrangement of people in each county, that is okay if there is a
standard. But there is no standard. It does not say with this kind of ballot you do
this, this, and this. In almost every other thing, there is always a standard to
judge something by. Consequently, if you looked at the technique that was being
used in Palm Beach, Broward, and Miami-Dade Counties, what did you find?
Well, you found in Broward County, [which] has the highest amount of
Democrats, it was just amazing the number of bumps, dust marks, or anything
else that was viewed as being Gore votes, whereas you did not have the same
percentage in either Palm Beach County or Dade County. Palm Beach County,
of course, they had a written opinion from their election board that they were
trying to follow with respect to what constituted a ballot count. When they went to
Judge LaBarga to ask him if that was okay, he said, no it is not. At the same
time, he basically said, if you want to use that standard yourself on each ballot,
you can, but you cannot use it as a standard.
P: This was the 1990s standard that they used. So in every county, there is going
to be a different standard.
K: Unless you articulate, unless you say, these people make a judgment. The other
thing we were concerned about was, every time you run these ballots through a
machine, you get a different count because more chads fall off or more chads
cover up. You could have a ballot, if something is hanging on by only one
corner, one time when it goes through the machine, the light goes through. The
next time, the little chad has rotated back 180 degrees and is filling the space
and there is no light that goes through it. Our concern was, is that you were
going to continue to get new votes. The other thing was, originally in asking the
Supreme Court of Florida to stop it, to establish a standard, our concern was that
the integrity of the process was going to be hurt by having all kinds of different
standards being used on a statewide basis. I was born and raised in
Philadelphia [Pennsylvania] and came to Florida. When I was born and raised in
Philadelphia, I understood that everyone in the South was a dumbass. They
wear big hats, they beat blacks, and they are stupid. Ever since I have come to
Florida, I love this state and I view myself as a Floridian and not as a
Pennsylvanian. I was not interested in having my state look like a bunch of
rubes, southern big-hatted dumbasses doing things in a stupid way. I thought it
was kind of important that the state attempt to look as sophisticated as it possibly
could. I did not want us looking stupid. For instance, recently [we] had an
election down here, we elected the mayor of Miami. How is it reported in the
New York Times? The Elian [Gonzalez, Cuban boy rescued off the coast of
Florida in 1999, returned to his father in Cuba in 2000 after being lawfully seized
from his relatives] lawyer wins the mayorship in Miami. It just makes us look
stupid. That is not why he was elected. He was Cuban. If Attila the Hun had run
and he was Cuban, he would have been elected.
P: Also, are you making an argument that according to Florida law, the most
effective way to count votes is by machines? If you have a hand recount, it is up
to individuals and that is not as accurate.
K: No. It has nothing to do with that. It has to do with the legal standard. The legal
standard tells you what to do. It does not make any difference. I am Democratic,
I tend to be pretty conservative on a lot of issues, [but] not when it comes to
criminal law. If I am a judge now, this cannot happen because you would
disqualify yourself [but] if I saw someone commit a crime and then that person
was brought in front of me to be tried without a jury and the state did not prove
beyond a reasonable doubt he did it, I would set him free. That is what the law
is. The law is designed to be followed. It is not for each one of us to do justice in
our own way. Justice is done by following the law. The law, in my mind, made it
pretty clear as to how things were to proceed. Anything that you have to fix after
the fact becomes problematic. If you can look back and say, we did it the way
the law set us to do it, that is a better defense than saying we did what was right.
The fact of the matter is, what one person thinks is right may be different than
what someone else thinks is right.
P: Some critics have argued that one reason the Republicans were more
successful, is that they were more interested in the final result, whereas the Gore
people were more interested in the process and public relations.
K: The Gore people were more interested in changing the number that was going
along the bottom [of the television screen], which required them to take a
different tack. The first decision that was handed down by the Supreme Court
was really very personal. Whenever a constitutional officer is having his or her
actions reviewed by a court in the state, generally speaking, they will be referred
to [as] the Office of the Attorney General or the secretary. All through that first
opinion, it said she [and] her. I was really surprised to see that. That is just not
the way things are done. The secretary was very unhappy as this thing was
coming up. We heard before we went into the first oral argument that it was 7-0
against us. Another thing that was very interesting is that the information was
leaking out of the Supreme Court of Florida like a sieve. I have never seen
anything like that before and I do not know where it was coming from. I would be
shocked to be told that any of the justices were doing that. I think their staffs
were. I doubt it was the clerk's office. It would had to have been the law clerks
that were just blabbing to anybody who would listen. I could not understand how
that could be.
When I went into the argument, even though the argument was tough, generally
speaking, we would have an oral argument. If your case is really strong and it is
a very, very prominent case, then you are going to expect the judges to be more
harsh with you on the questioning because it is good theater. Also, if they are
inclined to go one way, sometimes you will see them asking tough questions to
the other side just to test and make sure they are right. If they are inclined to do
something one way and you have a judge with integrity, they are going to really
try to test themselves to make sure that they are not just going that way. For
instance, people said to me, Justice [Harry Lee] Anstead [Florida Supreme Court,
1994-present] is really hard on you. That is the way Justice Anstead is. He is a
fine judge. He is somewhat liberal, but listen, everyone has got to be something.
You certainly do not want to have a dishrag as a judge. So they are going to be
liberal, [or] they are going to be conservative. Justice [Barbara] Pariente [Florida
Supreme Court, 1997-present] tends to be more liberal, Justice Anstead tends to
be more liberal. The Chief [Charlie Wells, Chief Justice, Florida Supreme Court,
1994-present] tends to be more conservative. Fred Lewis [justice, Florida
Supreme Court, 1998-present] is somewhere in the middle. Justice [Major]
Harding [Florida Supreme Court, 1991-present] tends to be more conservative,
Justice [Leander] Shaw [Florida Supreme Court, 1983-present; Chief Justice,
1990-1992], it depends. Sometimes he is conservative, most of the time he is
liberal but he has his bends where he goes the other way. You want a thinking
person sitting as a judge, not a computer. When I came out of the court, I had
been jumped on a little bit, but it did not really bother me that much because I
thought they were just doing their job. I was extremely surprised at the outcome.
As a matter of fact, when I came off of the oral argument, I disagreed when they
said we think it is 7-0 against. I found that hard to believe. In any event, I was
shocked at that decision [of] the first Florida Supreme Court. During the oral
argument, when the chief started playing with David Boies about moving the date
of the contest period and the protest period, I turned to John Little and said, he is
just playing with them. John said, what do you mean? I said, if they change the
date, they have changed the law. If they changed the law, it is a set-up on the
federal court like that. It is like using a shotgun on a gnat. The gnat is gone. I
thought they were just playing. When the decision came out, the secretary, as
each page was coming out, was looking more and more upset. I said, look at
this, they changed the standard. I knew we had won at that point in time. There
was no way we could lose. I never doubted the Supreme Court of the United
States was going to rule any way other than they could, they had to.
P: Let me go back because I want to get into a little more detail about that. Let me
talk about the first lawsuit filed by the Bush administration. Barry Richard
[attorney for George W. Bush in 2000 election] filed in federal court.
K: In front of Judge [Donald] Middlebrooks [U.S. District Court].
P: Right. Part of the argument is that there would be in this case, not only a
violation of the first amendment, but a violation of the Fourteenth Amendment
because of different standards. Would that be a legitimate basis at this point?
K: Not at that point. Judge Middlebrooks did not deny that with prejudice. He just
denied it at that stage. As a matter of fact, after the first argument in the
Eleventh Circuit, if you look at some of the opinions in the Eleventh Circuit, the
dissenting opinion from former chief Judge Choflack, what he basically said
was, look guys, so we can handle the criticisms of the strict constructionists here,
go back to Judge Middlebrooks and just show them this, this and this and let
them have new findings. All Judge Middlebrooks was saying that at that point in
time, it was premature because there was not an adequate showing.
P: If he would have had a fuller presentation of facts and issues, he might have
K: Yes, he might have.
P: In this case, he ruled that it was a state rather than a federal matter, that he
thought the case had little merit, and that there always have been these
discrepancies. There always will be because there are sixty-seven different
canvassing boards. Did you agree with that decision?
K: I guess my attitude was, what I concentrated on in Judge Middlebrooks's
decision is that he said it was premature. The rest of it is all nice, but it was
basically an issue of prematurity. As a practical matter, no judge was going to
get ahead of the power curve on this thing. That is another big problem we have
with this case. Appellate courts are not designed to take eight boxes of
documents and briefs and turn them around in seventy-two hours. Give me a
break. It is a collegial court, they are supposed to study things, they are
supposed to discuss them and debate them among themselves. They are
supposed to listen to oral argument and then they are supposed to spend time
passing opinions back and forth to look at, to think about, and ponder. There is
no way that Judge Middlebrooks, right out of the box, was going to do that. I was
not the least bit surprised that he did that.
P: Another issue that comes up very quickly, and he had something to say about
this, was Secretary Harris's decision to enforce the seven day certification date.
She and Clay Roberts indicated that hand counts could be used only if there
were an error in voter tabulation, error by the machine, or some event like a
hurricane. Later on of course, the Florida Supreme Court is going to disagree
with that. What was your legal basis for this argument?
K: The legal basis for it was that a couple of opinions had been issued from the
Secretary of State's office in prior years about that. When we read all the cases,
that is what we found. That particular part of the protest law had been put in
there to handle a specific situation. That situation was caused in Buddy
MacKay's race in 1988 [Florida Lieutenant Governor 1991-1998; Acting Florida
governor 12/98-1/99; U.S. Representative, 1980-1983; FL state senator, 1974-
1980]. Buddy was a partner in his firm, and Don Middlebrooks, at the time, was
a partner in his firm too. [In Buddy's race in 1988, at the end of the race] we had
a discussion about whether or not to contest that election. Buddy decided not to
contest that election because the law did not let him do it. In effect, there was no
way to win that kind of case. So the legislature rolled along and amended the
law in the next session to basically provide for the protest. What it basically said
was that if an election is within a certain parameter, [about] half a point, that you
then have an automatic recount. In the process of doing the automatic recount,
you can only do a hand count if you find that there is some sort of discrepancy. It
tells you what to do in the statute. It says that you re-run it. If there are no
problems there, then that is fine. If you find a software problem, you are
supposed to correct the software problem, get the concurrence of the secretary
of state's office that the fix is a good fix, then re-run the ballots. If it is within a
quarter of a point or something like that, then [what] you are supposed to do is,
you are supposed to do a sample of the ballots.
P: In three precincts.
K: Right. Then if you find that there is a problem, you do a hand count. They did
three precincts and [then] they just decided to count the whole thing. That is not
what was intended. That was our legal view, not the secretary's. We saw
opinions that she had issued previously, [and] we agreed with them. We were
then told, we think you are right, that is the proper standard.
P: Although it is not clear when the automatic recount is triggered. Something like
forty-eight of the counties just totaled up the machines.
K: That is wrong.
P: They should have actually recounted.
K: Absolutely, that is what the statute says. The first time we ever heard of that, that
Clay Roberts ever heard of that, [was] when he saw the first press report about
that. He said, the end result was that was not the proper procedure to follow. He
said it in a somewhat more agitated fashion. The fact of the matter is, that was
P: There had been a statutory declaration by the secretary of state's office two
years earlier that this was what was required.
P: The argument that the Gore people present now is that the seven day
certification is not exact because if the law allows for a hand recount, there are
going to be times when you cannot complete it in seven days. Therefore,
because it is in the statute that you can do a recount, you must have some
flexibility in that seven day period for certifying the election.
K: Who is to decide that? Not the Secretary of State. It says seven days, that is
what it says. If some higher court wants to change it, [they can], which the
Supreme Court of Florida did. Listen, the Supreme Court of Florida is allowed to
do anything it wants to do with respect to Florida election law. It is the highest
court in the state. That was not for the Secretary of State to do, that was for the
Supreme Court to do and they did. The only reason it had significance federally
is because it ran afoul of the federal statute which said you had to use the same
law [on] the day after election day that was in effect on election day. The
Supreme Court of Florida was perfectly within their rights to do anything they
wanted to do and did. She was not, she had to follow the law. Seven days is
what it said. Based on our view, it was not intended to be. I do not know if you
have seen the tapes of the arguments before Judge Sauls. The only questions I
asked of the election supervisor in each county was, when you did the sample,
was there any evidence of a machine breakdown? Each of them said, no. That
was my argument. If there was [no mechanical problem], they should not have
done the manual recount. It was not appropriate to do the manual recount.
P: An issue arose when Judge Charles Burton of [the] Palm Beach County [Court
and the canvassing board] talks to Clay Roberts and I think he faxed the request
for an additional amount of time to complete their vote count. What did you
advise her to do on this particular issue?
K: We had a meeting of counsel on that. What we had done ahead of time was we
had tried to set ourselves up so that we would be bullet-proof in terms of what
she did. The Supreme Court of Florida said that you can either shut down the
count at 5:00 on Sunday or at 9:00 on Monday. With 9:00 on Monday, we
thought that it was desirable [in that] it gave people more time. That was very
much in its favor. But the negatives were, how does that work? That is the
beginning of business everywhere. If stuff comes in at 9:30, do you still accept
it? We liked the idea better of having the close of business on one day than the
opening of business on the other because we thought that we would have to
come up with some sort of rule of reasonableness if it was 9:00 in the morning.
Unless you have sixty-[seven] people standing outside the door at 9:00 in the
morning and you open the door and they throw the results in the door, they are
not in compliance. We came up ahead of time with the idea of 5:00 on Friday.
P: The court gave you that option.
K: We could have gone [until] Monday. This decision was made on Friday. We
recommended to her so there would not be a question as to the time limits of
something that she pick a time when her office was open in advance of normal
business hours, would be open in advance of the time as opposed to a time
when she [normally] opened it because otherwise she would immediately be put
in the position of having to make a decision as to whether or not to extend the
P: From a public point of view, from the Gore point of view, she was setting up a
situation where Palm Beach County in particular would have less time and they
did not get their ballots in by 5:00, they were two hours late, which makes it seem
as a partisan decision.
K: Except that the decision was made on Friday to keep it open on Sunday. She
got our recommendation when she made the decision, not before. We went over
the pros and cons of it and we recommended 5:00 on Sunday. Then it was set
up. That decision was actually not made on Friday, it was made on Wednesday.
This was before Thanksgiving, was it not?
K: It was made on Wednesday. Sunday, we first found out about this problem. She
was not in the office. We got to her office at about noon or 2:00 on Sunday. The
secretary was not there yet. When Judge Burton's request came in, we
immediately got it to the secretary. She may have been in at that point in time.
The lawyers began a discussion of what to do. There were some people that
were of the view that we should extend the time. I argued against it for this
reason: at this point in time, we had heard rumblings that the Republicans, the
Bush people were going to be filing petitions, or cases, in every one of the sixty-
[seven] circuits around the state. What I was concerned about was [that] two
hours [was] reasonable, [but] then what happens if [at] 6:45, another county
says, we need another hour. The Supreme Court of Florida, which had been
most unkind in terms of dealing with the secretary, said 5:00 on Friday or 9:00 on
Monday, which was the reason why we had selected 5:00 in the first place, for all
the reasons I gave you. I recommended that to her and she went along with it.
Now we were being put in the position of [doing] something that we did not want
to do, [which] was the reason why we selected 5:00 in the first place. We were
vitally concerned that if it was 9:00 in the morning, we would immediately be put
in the position of having to modify what the Supreme Court said. We wanted to
follow precisely what they said. Therefore, we made the decision and counsel
recommended to her unanimously that she not accept it. It has got to be in by
P: Earlier on, she allowed these canvassing boards to submit written statements
justifying why they needed extra time.
K: Yes, we asked them to do that.
P: The Gore people say that was just political cover, that she never really looked at
the reasons for those delays.
K: Yes, of course they would. We spent a lot of time looking at the reasons. We
sent the requests out to have them to do that. Then, we set up what we thought
were the criteria that she could accept. We sat down and discussed that with her
before any of these things came in and established the criteria and wrote them
down. They were written down and they came from case law, cases in Florida.
Each criteria was backed up by case law. When they came in, we applied the
criteria against the reasons why. In Dade County, Judge [Lawrence] King
[Miami-Dade County] wanted to count, he wanted to do something that would
have resulted in more votes for Bush I think, but it did not comply with the statute,
we said, no. She said, no. The criteria were developed ahead of time, they were
applied in a uniform fashion, and they were looked at very carefully for hours and
hours and hours. It is just nonsense.
P: I talked with Judge Burton and he admitted that the request he sent in was not
very well formulated because he really had not had time to produce a document
that would be very persuasive. Was that the case with all of the requests?
K: I do not think we cared how persuasive it was. It was just whether or not the
reason was proper. They could have written on the back of a candy wrapper,
that did not make any difference. As long as the reason [given] was the right
P: Judge Burton also was confused because when he asked Clay Roberts for an
opinion, Roberts as you know, replied that he could not have extra time. But
Butterworth presented another opinion, saying that of course he could.
K: Whatever it took.
P: The question he had was, and it is an interesting question: who is the authority in
this kind of opinion?
K: [The] statute says the Secretary of State [is the authority].
P: We already know, but I would like to get you to expand on why Butterworth was
making this sort of statement? He had not been asked his opinion, I do not
believe. Why would he intervene at this point?
K: Legally, I have no idea. There is no legal basis that I know of.
P: Once Judge Terry Lewis gives his first opinion, he authorized Katherine Harris to
exercise discretion, but he also says to accept without considering the
circumstances is to abdicate discretion. Of course, the Gore people will argue
later that is exactly what she did. She simply had already made up her mind.
K: We had written criteria that were prepared and each letter that came in was
compared against that criteria and then we sat down with the secretary and said,
this is the letter you have received from such and such a county, these are the
reasons that are given, here are the criteria. Based on our examination of this, it
appears it does not meet the criteria, do you agree? She sat down, she read
each letter, she then read the criteria and then she thought about it and said, yes
I agree. One by one. When the criteria were developed, she insisted on a
couple of different [changes]. She did not like some of the language here, she
did not understand that. She wanted it clearly written down.
P: I wanted to get your opinion on another issue that she had to deal with that was
very complicated in many ways, the military and overseas ballots. These
absentee ballots, by law, as I am sure you know, have to be postmarked by the
seventh and dated and cannot come in after the seventh. There were votes that
were accepted that were without signatures, some had been faxed, some were
postmarked November 8. Five ballots in Clay County were postmarked
November 17. Were these ballots not illegal? They were accepted by the local
K: She has no ability whatsoever to accept or reject those ballots. The Secretary of
State is not permitted to go behind the certifications from the county boards.
P: This was done after the election was over, because the Bush people filed or
started to file a brief and then they withdrew it because Judge [Ralph] Smith, I
think, would have been the judge. Then they went to each canvassing board and
they actually accepted absentee ballots that were originally rejected. In some
cases, I have been told by elections supervisors, a ballot that would have been
accepted in Okaloosa County would not have been accepted in Broward County
and military ballots were treated differently from civilian ballots.
K: The secretary has no discretion to go behind the report of a county canvassing
P: Is it not a violation of the Fourteenth Amendment as well, if military ballots are
treated differently from civilian ballots?
K: They already are, based on a consent decree between Florida and the United
States government. They already are treated differently. Whatever the standard
is that exists in Florida and whatever it says is, it what should properly be
followed and if those ballots did not comply, they should not have been counted.
P: Let me ask you about the first Florida Supreme Court decision, 7-0. It said Palm
Beach and Broward County may continue the hand recount, but it left it up to
Judge Lewis if those votes should be included in the final tally. Why would they
leave it up to Judge Lewis? Why would they not leave it up to the secretary?
K: I would have to take a look at it again to give you a more thoughtful answer. Off
the cuff, my response would be that the Secretary of State never makes a
decision as to whether or not the ballots [should be included]. The Supreme
Court of Florida was changing the procedures that were going to be followed, so
basically the only issue is what gets certified to the secretary. The secretary
does not decide what ballots get counted. She only is supposed to deal with
certificates that come from the voting authorities. I guess the Supreme Court of
Florida was making Judge Lewis the new certifying authority for these ballots. All
she would do then is to accept the result that came from it. They were basically
rewriting Florida law, which they were free to do.
P: The issue that we have already talked about and that you see as so important,
which it certainly is: they picked November 26 as the date when the recounts
shall be completed. Why November 26?
K: Who knows? I was just happy they did it. I could not have cared less what they
picked. Strategically I thought it was stupid for the Gore people to ask for it.
They should have gotten to the contest stage as quickly as they could if they
were interested in finding out who properly won. If they were interested in
winning, the way they did it was the best way to do it.
P: It hurt Gore in the public relations arena as they said they wanted to count all the
votes, but they just wanted to count them in Broward, Palm Beach, Dade and
K: Count all the votes in some of the places.
P: The court was very harsh on Secretary Harris, they disagreed with her
interpretation that a recount was possible only with an error in vote tabulation.
They said her inflexibility disenfranchised voters. Since political power is inherent
in the people, therefore, they have in effect denied citizens of the state of Florida
the right to vote. How did you respond to that part of their decision?
K: What was our reaction to it? [The] Supreme Court of Florida is allowed to do
anything with the Florida election law they wanted to. I think one thing that was
very unfair about the whole tone, it almost seemed like the Supreme Court of
Florida thought that the Secretary of State was supposed to be able to divine
Lewis 1 as being the standard that should be applied and criticized her for failing
to follow Lewis 1 before it was promulgated.
P: Because they had stayed that decision?
K: What they stated the law in Florida to be in Lewis 1, she was criticized for not
following that, except it had never been promulgated, until they promulgated it. I
chalked it up to the fact that they had been working pretty hard for a lot of hours.
The point is, is that if Lewis 1 had been handed down two days before election
day, there would not have been a problem, but it was not. It was handed down
substantially [long] after election day. To criticize the secretary of state for failing
to follow a decision that had not yet been promulgated and was clearly not clear
to everybody, [is not right]. Judge Lewis, who is a very bright judge, did not
understand it that way and Judge Sauls did not understand it that way, and we
surely did not understand it that way. We did not think that the precedent in
Florida understood it that way. Remember, what you are doing is, you are taking
a whole bunch of cases that were not written for this particular problem and you
are trying to read them all together. If you say, do I have a problem with the
Supreme Court interpreting that situation and those facts the way they did as a
matter of Florida law? No, I do not. They are free to do that. Do I have a
problem with them criticizing the Secretary of State for not divining the same
result and following it? Yes, I think that was very unfair and unnecessarily critical
of a public servant who I thought was doing a very good job. I do not know
anyone who could have understood that is what the state of the law in Florida
would be. But at the same time, I clearly stand up for the right of the Supreme
Court to do it. They had a right to do it. No two ways about it.
P: How did you deal with one of the precedent cases, Beckstrom vs. Volusia County
[case alleged fraud in absentee ballots in election of sheriff]. Did that come into
play at all?
K: Beckstrom is an important case. That is the one that David [Boies] talked about
P: That is the case of the election of the sheriff where they ultimately ordered a
K: That was a contest case, not a protest case.
P: That is right.
K: So that had nothing to do with what we were dealing with, we were dealing with a
protest case, not a contest case. Remember, the whole idea behind Florida law
is, in the whole scheme of things that they have to deal with in some point in time
if they have not dealt with it already, is that it does not make any difference what
happens on election day, you can fix it. There are cases in Florida where people
were removed from office two-and-a-half years after they were put there. [The]
problem here is that you cannot do it with a federal office because if it is a
senator or congressman, they have been seated already in the body. If it is the
President of the United States, the electoral college has been convened, it has
voted, and they have been discharged. So fine, you remove a guy from the
electoral college. He is done, he is finished, the President is sitting in the White
P: So you can change the sheriff of Volusia County.
K: But you cannot change a federal officer.
P: What about the issue of Seminole and Martin counties? In these cases, Sandra
Goard [Supervisor of Elections, Seminole County] and Peggy Robbins
[Supervisor of Elections, Martin County] gave Republicans the opportunity to put
in voter ID on absentee ballots. In Martin county, they actually took the ballots
out of the office. Was that a violation of Florida election law in the secretary's
view or in your view?
K: Yes, I think it was improper for them to do that, but then the test is whether or not
you invalidate the ballots and the answer under Florida law is no, they should not
have done that. Is it improper to let people come in and fill in information?
Probably not. Taking them out of the office probably is. Is it partisan and does it
offend the sense of fairness? Absolutely. They should have let the other side
know the same thing. Were they required to? No. Does it look like crap? Yes, it
P: So you agree with the decision by Judge Clark and Judge Lewis, to not
disenfranchise the voters?
K: You know what? If it had been any other case, they never even would have tried
it. They would have disposed of it on a motion to dismiss. But they did the right
thing, this was too important. What would have happened if they [had] disposed
of it on a motion to dismiss, I believe it would have gone to the Supremes
[Justices of the Supreme Court] and the Supremes would say, we have to have a
full trial on that.
P: Let us talk a little bit about Lewis 2. That decision was pretty straightforward. He
denies Gore's motion for an emergency ruling and permits Harris to go ahead
and certify the election, saying that she has exercised her reasoned judgment.
The Florida Supreme Court immediately puts a hold on that decision. Were you
surprised at that at all?
K: That they put a hold on it? No, because everything else had gone our way that
day. We were sitting around the office and said, it is lunchtime. He did that at
lunchtime or something like that. It was 2:00 in the afternoon or 3:00 in the
afternoon. We knew something was going to happen. We did not think it should.
We began to develop a rule that whenever you won something, you immediately
went out and celebrated three hours afterwards because there was no guarantee
it was going to last.
P: Did some of the Bush national campaign people think that the election was over
at that point?
K: Oh, yes, of course. I will tell you what, at that point in time, the adrenaline levels
were so high that we simply dealt with anything that happened. I was surprised,
but did not care.
P: That would have been November 17, I think.
K: Yes, I was surprised.
P: Let us talk a little bit about the oral arguments before the Florida Supreme Court
on November 20. Was the key legal issue whether or not Katherine Harris had
the right to refuse the manual recount submitted after the certification date?
K: That is hard to say. It was an issue as to what the legal standard was. That
clearly was the central avenue of relief. Basically, I think the attack was on what
the proper legal standard was and what the proper procedure was.
P: You mentioned earlier you had some rather strict questioning from Justice
Anstead and he asked you on one occasion if Harris played any part in
determining the recount and you replied that it was not her responsibility, it was
the canvassing board's responsibility.
K: [The] individual canvassing board, the county canvassing board, because there
is also a state canvassing board that she was on, which is actually called the
election commission, I think.
P: Also, when asked by Justice Anstead, was the seven day certification deadline
absolute, you said no because it had technically already been violated. She had
given them an extra day to put in their request.
K: I do not recall.
P: Earlier, it was argued that it was absolute. Which is it?
K: It is absolute in the statute but a judge enters an order telling you to do
something, then that changes it.
P: Another point you made was that despite these issues there really was not
enough time to get a complete remedy for all of these disputed votes. Was that a
legal argument or was that a pragmatic argument?
K: I made that argument? I did not think that there was enough time under the
protest. I did not think it belonged under the protest, I thought it belonged under
the contest. Clearly, the Florida statute does not contemplate an entire recount
of the votes in the state of Florida within seven days.
P: What was your reaction to the final decision, the 7-0, November 26 decision?
What do you think was the legal reasoning behind their thinking in this decision?
K: They believed that the equitable powers of the court and that the legal standards
in Florida, when put together, brought a different result than the secretary was
operating on. They put a great deal of emphasis on the need to find out what
voters did as opposed to what they would view as a technical adherence to
scheduling and that kind of thing that existed in the statutes.
P: One term they used was, vindicating the will of the voter.
K: Which they can do, the Supreme Court can vindicate the will of the voter if they
want to. The Secretary of State has to follow the statutes.
P: On one occasion, I think this may have been in Gainesville, you indicated that the
7-0 vote had two factions. One faction was concerned about the purity of voter
intent and another faction that thought perhaps the Bush lawyers were trying to
prevent a just result. Why would a court base a decision on the second concept?
K: They viewed it as being unfair. Obviously, all of them had to feel that the voters'
intent was primary. It just had to do with whether or not you felt that on an
intellectual basis, or whether it sort of became fighting words for you. Some
judges were obviously moved strongly by that.
P: You talked earlier about this being, to some degree, personal.
K: Personal, when I say personal, [I mean that with] all this, the timing and
everything else that had to be done, there was no way of avoiding raw nerves.
Everyone was tired, everyone was working very, very hard. The Supreme Court
of Florida probably worked harder than anybody did because they did not have
the advantage of having six or seven teams of people putting together separate
things all based upon a common strategy. They had to take everything that was
there, assimilate it, then try to apply it to the law that they found, and then figure
out where they wanted to go. They had the toughest job. They had to be tired. I
think that if they were under the impression that the Bush people were just
standing on technicality and trying to avoid substance, that would upset some of
them a lot.
P: Let us talk about the writ of certiorari to the United States Supreme Court. What
were the crucial issues at law that were to be argued before the United States
Supreme Court? One of course, is that they changed the election law.
K: It definitely surfaced the first time because in the certiorari order, there is
language that I thought was very, very key that was never paid attention to. That
language is on the fifth or sixth page of the opinion. It said something like, it
appears that Florida wishes to avail itself of the safe harbor. It would therefore
be inappropriate for there to be an interpretation of the Florida law which resulted
in a change in the law.
P: Such as a change in the safe harbor day?
K: No. What the Supreme Court did in the first order on the cert petition was to say,
we do not know whether you are interpreting the statute, whether your decision is
predicated upon an exercise of the equitable powers of the court, or what. You
need to look at that again and let us know what you are doing.
P: The Florida Supreme Court admitted that they had fashioned a remedy, but they
argued that they were using statutory construction. Do you think that was a
correct assessment? All they were doing is interpreting the law.
K: Let us say they were interpreting the law.
[End of side A2]
K: These various issues have been raised: due process, due objection, that kind of
thing. It is really hard for us to address this because we cannot figure out exactly
what it is you have done. Really, whether or not you do something that
constitutes a change in the law does not make a difference, whether you are
simply construing a statute when you do it or [if] you are developing principles
that are bottomed on the fundamental equitably power of the court. It does not
make a difference. In one sense you could say the second decision could have
been rendered at the time of the first decision.
P: This is the U.S. Supreme Court?
K: Yes. Except that, of course, in their second decision they basically said the
things that have to be done, there is not enough time [to do], we are out of time.
In the first decision I think that they were articulating, they were basically defining
a problem. [Interruption] They were using the excuse of not being able to figure
out whether there had been a construction of the statute or a creation of new law
to give the Florida Supreme Court a chance to look at it again. I really do not
think it made much difference. [Interruption] It would assure finality of the state's
determination made pursuant to a state law in effect before the election. A
legislative wish to take advantage of the safe harbor would counsel against any
construction of the election code that Congress might deem to be a change in the
P: That is which statute?
K: The law goes back to 1876, 3 USC, Section Five. If any state shall have
provided by laws enacted prior to the day fixed for the appointment of electors for
its final determination of any controversy or contest by judicial or other means,
then such determination shall be made at least six days before the time fixed for
the meeting of the electors. Such determination made pursuant to such law so
existing on said day and made at least six days prior to said time of meeting of
the electors shall be conclusive and shall govern in the counting of electoral
votes. Remember the election of 1876.
P: This is the electoral count act of 1877, right?
K: Right. The election of 1876, they ended up electing as president, the guy who
had the lowest number of electoral votes. The reason for that was they got to go
back to the drawing boards in each state if they wanted to. What this is basically
saying is that if all contests are done six days before the election and the law that
resolves the contest was in effect on election day, then Congress cannot screw
with that certification. The Supreme Court was saying, we cannot tell whether
you are construing statutes or [doing something else]. The other thing they are
saying very politely is, is that if what you have done constitutes changing the law,
it can create a federal remedy under 3 USC Section Five. They were giving the
[Florida] Supreme Court an opportunity to go back and look at this. I think the
people who were paying attention to this on the Supreme Court were paying
attention to a slightly different principle. You are not a lawyer so you would not
necessarily be familiar with it, [but] maybe you are because of your other
scholarship. Frequently what will happen is the Supreme Court will say, if this is a
matter of state law and it can be resolved on a state law basis, then if the
Supreme Court of the state makes that clear, that abdicates our exercise of
jurisdiction. I think that is what some folks were paying attention to on the
Supreme Court, that principle. That is not what the Supreme Court of the United
States was doing. When you look back, you see that what they do in Lewis 2 is
slavishly demonstrate that they are only following Florida law. That was not the
point. The point was, is that if it constituted a change of the law beyond election
day, that created a collision with federal law because the federal law says that
the safe harbor [finish thought]. In a way, it is like a bootstrapping argument.
The Supreme Court [said that] if Florida wants to avail itself of the safe harbor,
which was even more important in this situation because we had an election that
had taken place which now took the House and Senate within seats of control
being able to switch back and forth. Let us say for instance that this issue had
come up and the Congress was divided 58-42 with the Republicans in the Senate
and the House had a 75 or 85 vote plurality. I am not so sure that this would
have been as big a deal to the Supreme Court because they would say, hell, if it
goes into the House of Representatives, what difference does it make? They are
going to elect that guy anyway. But here, it was not clear what would happen.
As we know, the Democrats had control of the Senate for the first twenty days of
January, the first sixteen days after they convened because it was a 50-50 split
which meant since Vice-President Gore was still in office, he was the tie-breaking
vote. You could have a result that would have been bizarre, because of course,
the president is selected by the House, the Vice-President is selected by the
Senate, so you could have had a situation where the House picked Governor
Bush and the Senate picked [as] vice-president [Joseph] Lieberman [U.S.
Senator from Connecticut, 1989-present; unsuccessful Democratic vice-
presidential candidate, 2000] and then that would have been the situation in
existence. I am sure there were all kinds of things that were bubbling through
their heads, what if, what if, what if. I argued that, I think, in the second argument
before the Supreme Court of the United States where I made reference to that
language in their earlier decision. Do you have a transcript of that?
P: I do not. It is also interesting though, in this first remand, there is no mention of
the Fourteenth Amendment. Why do you think they did not deal with it at this
K: Because you do not reach a constitutional issue if it can be resolved on a
statutory basis. That was what they were setting up in that thing. Actually, to the
extent that there was any intrigue going on in the Supreme Court of the United
States, whoever it was that crafted this language, and it looks [Antonin] Scalia-
like [U.S. Supreme Court Justice, 1986-present] to me. Whoever crafted that
language had the foresight to see what could be coming down the line. I think
the Supreme Court usually goes out of its way to avoid insulting a lower court, a
State Supreme Court. I think they were saying, it is difficult for us to tell whether
this decision is based on a construction of state law or whether or not it is
predicated on, in effect, divined principles of equitable law in Florida that have
now been recognized by the Supreme Court. Clearly, the Supreme Court of
Florida had no problem doing what it did, and it is legal for it to do it. The only
issue then is, does it then create something that collides with federal law. After
saying, we do not know which one it is, then they say, oh, by the way, make sure
that whatever it is that you do on a remand does not constitute a change in the
law because it looks to us like the legislature has opted for the safe harbor. So
then it goes back down to the Supreme Court of Florida, but instead of doing
that, they want to make sure that everyone understands that this decision is
bottomed only on Florida law and it has no federal implications.
P: Also, there is the possibility it violates Article Two of the Constitution which
places the determining factor in choosing electors with the legislature.
K: Again, remember that the cardinal principle of construction and procedure for a
judge is: the first thing you do is, you determine whether or not you have
jurisdiction over the subject matter, the second thing you do is, decide whether or
not you have jurisdiction over the person and you look at venue. Then the next
issue is, can I resolve this dispute by virtue of either common law or an
interpretation of the statute?
P: As opposed to constitutional law.
K: Precisely. They did not have to get to the Constitution. What they were basically
saying was, you know, it is not really clear to us that you considered the
constitutional issues anyway. It was apparently too subtle.
P: What would the Florida Supreme Court have had to do to satisfy the United
States Supreme Court? David Boies says it is a Catch-22, said if they change
the law by creating a standard, then they are making law. If they do not change
the law, it is a violation of the Fourteenth Amendment. When the remand came
down, it seemed pretty clear by what Scalia wrote, and he was supported by four
other justices, that the game was up at this point.
K: If you read that opinion, it is really hard to get out of the box because what they
seem to be saying is that we think that there is a question here that you have
changed the law. What you have to do is convince us that there has not been a
change in the law. Let us say you convinced them that there had not been a
change in the law. You still have an equal-protection problem and you still have
a due-process problem because there is not any criteria to judge the voter intent,
except the people. One of the things that confused me was, I was thinking to
myself- lawyers sit around trying to figure out how many angels they can fit on
the head of a pin. If I was the judge, what would I do? Well, I know I cannot do
anything in the protest phase because I got sixty-seven panels of three, unless I
bring them all up here and stick them in a room and let them count. If I am doing
the counting, I have a problem. Once we get in the contest phase, I can count.
Now the difficulty I have is the same one, because now, what is the standard I
use? You see, in every single one of these other elections that you look at in the
contest, they really did not have a problem with trying to divine the voters' intent
because it was not there. It was whether or not you accepted how it was there.
For instance, if you were supposed to use a yellow pencil and you used a black
pencil, anyone going through the ballots afterward could tell what you meant
was. Maybe the machine cannot read black and can only read yellow, but hell,
we can read black and we know what the hell they mean. Here you could not tell
from the face of the ballot what the vote was unless you applied some criteria.
The thing that I enjoyed the most [about] sitting up there was, as the drama was
playing out down here, I was saying, any judge looking at this is going to realize
that he or she is in an impossible situation. We have three separate counties
using three different standards. How can somebody sitting up in Tallahassee
possibly be able to make a determination as to what is going down? To me,
what our team was trying to do was [to] not make a mistake at any step along the
way, but that basically I believed that when the Supreme Court of the United
States handed down that decision, Gore's goose was cooked. I did not see how
he could get out of it, and then we go back down and then the trial begins.
P: Which trial are you talking about?
K: This is the one in front of Judge Sauls.
P: Okay, Sanders Sauls. This is the Gore contest, right?
K: Yes, this guy is a great guy. Ted Olsen [attorney for George W. Bush in 2000
election], [a] fantastic guy. Have you talked to him yet?
P: No. Part of the problem, I guess for the Florida Supreme Court is, not only are
they dealing with the remand from the United States Supreme Court, but they are
also dealing, ultimately, with the Sauls decision. In other words, they are going
to have to deal with Gore's contest.
K: Right. The Sauls decision. They had already set down what was going to have
to be done. It was going to be a contest, and that Judge Sauls was going to
have the contest. Then, because I remember that the big question was when we
could start this, and when we could start that because I was the only lawyer that
was working both in the state cases and in the federal cases. I could not be at
two places at one time. Since we had the argument that was going to be before
the United States Supreme Court on December 1, it was not possible to be in two
places at one time. We moved the schedule around by one day. The fact is, that
it was in the first decision that they [the Florida Supreme Court] change the
timing. I already felt that it was over with. The other thing is that under Florida
law, whether it be custom or law or whatever, a constitutional officer of the state
of Florida is not supposed to be attempting to overturn the Florida State Supreme
Court. My argument was based on when I was in the United States Supreme
Court was to explain what I understood Florida law to be and what I thought the
court had done. At one point, Scalia in the first argument, said to me, he said, do
you think that this raises something having to do with a federal question? I said, I
am only here really to discuss the issues having to do with Florida state law. He
said, well, this is a federal court, you know? I said, yes, your Honor, whatever it
was, I gave him the answer. To me, the goose was cooked. They changed the
date, they changed the order, they changed the law of Florida. It was different
law, for sure. The point I was most concerned about was the change in the law.
Statement of the case in procedural history. In Harris 1 the Florida Supreme
Court changed the election law of Florida as it existed on November 7' in several
material respects. Then one, two, three, four, five. Basically, that to us was the
primary point, the law had been changed. Then, of course, the Supreme Court
picks up that point in their cert petition. But one of the benefits that we had was
that we operated under the radar screen. No one paid any attention. In other
words, no one paid any attention to what the Secretary of State was doing,
except the Supreme Court of the United States paid attention to it. Right? In the
second decision, the concurring opinion borrowed substantially from our brief.
So, they were paying attention to what we were saying. Ted Olsen, of course,
was arguing, he was basically picking up from the Middlebrooks case and
presenting the constitutional arguments, which he had to do, of course. When it
went to the Eleventh Circuit the Eleventh Circuit is really fascinating.
P: That is a very conservative court, too.
K: That hurt Bush because the Eleventh Circuit is a very conservative group you
have a middle group, and you have a liberal group. One of the people I have the
most high regard for in the entire world is Rosemary Barkett [1993-present, 11th
Circuit Court of Appeals judge; 1985-1993, Florida Supreme Court justice, chief
justice, 1992]. She has been a dear friend, she is the sister of one of my former
partners, and one of my former partners, and she is wonderful. She is very
liberal. What happened to the Bush people in the Eleventh Circuit was that they
got hammered by a coalition of the liberal side of the court and the extremely
conservative side of the court. [J. L.] Edmondson and people like that just said,
look, we are just not going to use the Constitution that way. That is not our thing.
We do not do that. That was in Judge Choflack's concurring opinion, which is
just a riot. He basically says, this is what you have to do, Bush. Go back to
Judge Middlebrooks, show him this, this, and this, and then my distinguished
strict-constructionist colleagues will have their face right in the middle of a pie
and they are going to have to do something. While all this is going on, we were
going back and forth to Washington. The Eleventh Circuit is having us send
reams of paper to Atlanta. Everyone, the Secretary of State, the Gore people,
the Bush people. All of this is going on, the circus is going on. We are busy. We
had people that were doing nothing except collecting paper and sending it to the
Eleventh Circuit. They must have a warehouse of it up there. We thought the
Eleventh Circuit was going to do something. They never did.
P: In some cases, they thought they should not be hearing the case at all, right?
K: The Eleventh Circuit? Yes. There were sixteen of them, that was a fascinating
argument. In any event, I think the goose was cooked after the first decision.
P: Let me go back and lead back up to that again. Let me go back to the Sauls
case. When you learned that Judge Sauls was hearing the case, what was your
K: All I knew about Judge Sauls was the number of years he had been on the
bench, I knew that he had a feud with the Florida Supreme Court over having
been chief judge. All things being equal, if I was picking a judge, I would have
picked Terry Lewis, if I could have gotten him, because he had no particular axe
to grind. Although, frankly, if there is one thing that is absolutely clear, the trial
judges in Leon County acquitted themselves with incredible dignity and ability.
When everyone nationwide was watching what was going on in our trial courts in
Florida, I thought to myself, stick that one up there because they looked great.
Every single one of those judges.
P: Particularly Nikki Clark. They tried to have her recused simply because she was
a Democratic African-American. Were you involved in that motion at all?
K: No. But in fairness to them, I think they had to do that. I do not believe that was
the reason why they were moving to recuse her. That was really a hard decision
to make and they actually asked me what I thought about that. That is a hard
decision to make. She had just been, a week before or days before, turned down
by Jeb Bush. Frankly, she deserves a lot of credit. If I had been in her position, I
would have recused myself. I think the reason she did not recuse herself was
not because she was a hog for punishment, but because she felt it would not be
fair to the rest of the court because they were all working their tails off. If she
recused herself, then it probably would have gotten dumped on Terry Lewis's lap
and that would not have been fair. Probably what she was saying to herself was,
I knew I was not going to get that anyway. There was not a chance in hell I was
going to get that thing. She ran the risk of taking on a little bit of negative
reaction in terms of her career and everything else. She did the right thing
legally, but the only person that could make that judgement was Judge Clark
because she was the only one that knew whether or not she would be biased
against George Bush because Jeb Bush had turned her down. Let me say this, if
she said she was not, then she was not. As a matter of fact, that is what
everyone in her office said. The people that know her said, we all agree that
doing that was the right thing to do but we also all agreed that if she turned it
down that meant there was not a problem.
P: In fact, Barry Richard refused to sign the motion because he said, she is a fair
judge, we do not have to worry about it.
K: But that is not the point. The point is not whether she is a fair judge. The point is
whether she is biased. I think there were a number of people that felt that she
was the most qualified in the list of three that went up to the governor. You can
be as fair as the day is long. We had our misgivings, but I did not know them.
But within minutes of being in front in him [Judge Sauls], I was comfortable with
him because he is one of these guys. One of the things I like about older judges
is they basically are so comfortable with what they do, they are willing to do
anything that they want to do. Sometimes that is good and sometimes that is
bad. We have a judge down here, Clyde Atkins [U.S. District Court], he is a
wonderful guy. When they get up to a certain age, they do whatever they think is
right. As a result of which, we have vagrants running all around town.
Theoretically, it may be a violation of their constitutional rights to be kept in
institutions as opposed to roaming around, but I think all things being equal, they
are in better shape in an institution than they are living under a bridge. The fact
is that older judges are going to call them as they see them, that is just the way it
is. They are not worried about angling for a higher bench or angling for this or
angling for that.
P: Dexter Douglass said it was the worst possible judge they could have drawn.
What he feared from the beginning was that Sauls would draw it out too long
because he was known to be a slow judge.
K: But he did not.
P: They did file for an expedited calendar, I believe.
K: Right, and got it. As a matter of fact, he outperformed the calendar. That was
one of the points, strategically, that we discussed. We sat down and said, this
judge is going to move through this case like [General William] Sherman through
Georgia. At the end of the case, he is going to have to write extensive findings of
fact and conclusions of law. So the brief that we wrote for Judge Sauls was a
trial notebook. Again, this is something else I learned from D'Alemberte [the]
trial notebook. We wrote what would be almost like an executive summary on a
report that a businessperson was going to be given. Everyplace that there was a
footnote, instead of being just a case or something at the bottom, there was a tab
in the book and when you went to the tab, there was maybe a longer explanation
of the point and the cases. I saw it several times sitting up on his desk. No one
ever noticed it. They did not pay any attention to us.
P: Actually his decision was based to a very large degree on the points that you
K: Of course, because he had it. The point was, you know, we stuck to the points
we were going to make. The one thing that the team was very good about was,
we decided what we were going to do and we stuck to it. [We] have many really
bright people in the law firm that any of us can rely on. We came up with a
strategy [and] we stuck with the strategy. We just hammered at the points we
were going to make. There were some great flamboyant moments in the trial, but
at the end of the day, the situation was what it was. Some critical things [were
decided], [like] getting all the ballots sent up from Dade County. Wonderful.
What can they do with those things?
P: That was the issue. The Democrats originally wanted just a few of them brought
up and you requested all of them. Why?
K: Because it is not fair to just count some of them. It is ridiculous. There are two
things here. Strategically, he can never count them. But that is not the point.
The point is, is that it just aggravated the hell out of me. One of the problems I
have always had with our distinguished ex-vice president is that he wraps himself
in the white toga of righteousness, then he does things that everybody else does.
You know what? You have your choice. If you are going to wear the white
outfit, then you have to act white all the time. If you are not, then just wear a tan
suit. Everyone understands. You are going to try to slide one in here, and slide
one in there. The fact of the matter was, it was the self-righteousness of it. It
was like watching Noah's Ark. Two animals would come down the plank at a
time, walk in front of the microphones. The Democrats wanted to count every
vote and the Republicans said every vote had been counted. The only guy that
screwed up was Alan Simpson [U.S. Senator from Wyoming, 1979-1997], if I
remember. He got his lines messed up in the green room somewhere. The
Democrats actually won by a score of 179-178 or something. Two by two they
would come down. Count every vote. We have counted every vote. The point
[the Democrats made] was that [they said to] just count the votes where we want
them counted. That is just not right. We kept pounding that [point] to the judge.
P: Two of the arguments you made, which were I think a critical part of Judge
Sauls's decision, you indicated that the canvassing board had to have
deliberately violated their trust in some way. Obviously, in the whole process,
you are still arguing that there is not enough time to do all this counting. Then, it
must be a probability, not a possibility, that the votes would change. The
Democrats come back and David Boies says Sauls did not count any votes, how
would he know?
K: He could not count any votes. It is David Boies's obligation to make the case,
not the judge's. The judge does not have to try to do something impossible
because David has not made his case. David did the best that he could under
the circumstances. On top of everything else, David had an impossible job.
Right from the grounds of the Naval Observatory in Washington, hand-edits were
being sent on briefs. The vice-president does not limit himself just to the big
picture, he is in there doing an analysis of the trim, what kind of paint is going to
be used, whether the sale price for the corn is as good as it should be. The guy
is all over everything. It must have been impossible.
P: You mentioned in the trial or in the press that they had a voodoo presentation,
that the case was not very good. Do you think what they just wanted to expedite
it and get it up to the Florida Supreme Court?
K: Yes, as a matter of fact there were a couple of times that David was exasperated
with anything that would carry it on. In closing arguments, I thought the guy who
had the best argument that no one paid any attention to, was this poor guy who
was representing the voter in Naples who said that since neither the party nor
George Bush had asked for a recount in Naples, he could not get a recount. He
wanted a recount because otherwise it was a violation of equal [protection]. No
one paid any attention to the guy. They did not pay attention to [him in] the
Supreme Court of the United [States]. They did not pay attention to him
anywhere, but he had a great argument. What I did at the end, not in front of
Terry Lewis because it did not make any difference there, but in front of Sanders
Sauls, I took all of these guys, all of these people that made their little arguments
here and there and just tried to put them all together. To show more and more
[that] it was impossible. Judge, you cannot do anything. There is nothing you
can do. It is a mess and it is not your fault it is a mess, it is their fault it is a mess.
They changed the period of the protest, they extended it. They shortened the
time of the contest. There was no basis, no criteria to judge the voters' intent by.
Meanwhile, the only thing that made any difference was [the argument] David
[made that they] had to get votes counted. I believe that the entire strategy was
designed to get that number to change on the bottom of the TV screen. They
had to get that number to change.
P: Now they are in the contest phase, though.
K: [It] did not make any difference what the hell phase it was. You have got to
change that number. [It] did not make any difference to anyone. Here you are,
you have a Supreme Court that ends up being divided, it is really 7-2, they say [it
was] 5-4 but it is not, it is basically 7-2. They are watching too. Everybody is
watching. So what is going to happen? You have a situation where Gore wins
the popular vote and now Gore is ahead in Florida. It really makes it difficult for
anybody to do what you have to do. It does, but not as long as that number
stayed there. It released the tension. Would they have done the same thing
anyway? I think so. The fact of the matter is that it really made a difference that
that number [did] not change. From our perspective, the more they dumped crap
on that woman's [Katherine Harris's] head, the more resolved we became to
demonstrate that she had acted properly every step of the way. I knew her
personally before this, from the efforts that she had [made] in terms of trade for
Florida. Obviously south Florida is very interested in international trade. She is
tireless on that front. She always has been. I really came to admire watching
her in this thing. She was under tremendous pressure [and] she was abandoned
by everybody in the party. They paid no attention to her. Everyone made fun of
her. There she was day-in and day-out doing what she thought was the right
thing to do. No one, in the end of the day, has criticized her except the Supreme
Court of Florida and I do not think that they would necessarily have done that
The Supreme Court of Florida worked very hard. I think some of the comments
that were made there, [such as], the chief justice has a southern drawl, so what?
You do too. That does not mean anything. For people to take pot shots,
particularly people from New York and Massachusetts, who have one of the most
obnoxious accents in the entire world, [when] they [started] criticizing people
because they have a southern accent was beyond me. I am not a good person
to have in front of a camera all of the time. I am always doing something. I react
to anything that I hear. I wanted to be with the cameras coming over my head, I
did not want to be in front of the cameras. The first day I came in front of Judge
Sauls, I had no choice but to sit where I sat because there was no other place to
sit. That put me next to the Bush people. I did not want to be next to the Bush
people because, among other things, I talked to them from time to time. The big
guys were the guys representing the governor of Florida and the vice president of
the United States. [People representing the] Secretary of State kind of got
shuffled hither and thither. I staked out my territory right in front of the jury box.
Dexter is a trip, Dexter comes in, [saying] there is not enough space, and goes
on and on. So I will not move. The bailiff comes out and says [something, and I
say], I am not with the Gore people. I am staying here. This is my place. I am
right at the end. I am not bothering anybody. Everyone is fine. I was not in their
way or anything. Finally, the bailiff comes out and lead counsel will have to go
back. I refused to be lumped with them, so we had three lead counsels. There
was Bush, Gore, and the Secretary of State because I was not going to be
lumped in with either one of those guys because we had different interests.
P: While we are on that, did you discuss strategy or what you were going to present
with the Bush lawyers at all?
K: Yes, when it came to the trial in front of Sauls, I spoke to Fred [Bartlett] because
it did not make any sense to duplicate. So he told me generally what they were
going to do and I told him generally what we were going to do, but there just was
not time to do any of that. I had known Fred for so many years that I could just
talk to him very, very quickly. We also cooperated several times with the
Democrats on different things, when they asked for it. They were one floor
above us, we have known these people. Steve Zack [attorney for Al Gore in
2000 election] went to the University of Florida, I went to the University of Miami,
we drank in Key West and had dinner together. My wife and his girlfriend are
very, very tight. We have known each other forever. Several of the other people,
Murray Greenberg [assistant county attorney, Miami-Dade County, 1980-present]
from the county attorney's office, [and] Mitch Berger. The only ones I did not
know on their side were two guys from Tallahassee, but everyone else I knew. I
knew all those people. I knew everyone on our side. In any event, the bailiff
comes out and we go in the back hallway. Judge Sauls was leaning up against
the wall. Mr. Klock, he said, I want everyone to sit where they were sitting. He
looked at me and he said, sit where you were before. I said, well, I guess this is
[over]. He said, yes this issue is over with. So out we went and I sat down
where they wanted me to. I did not want to be there for two reasons. Number
one, I did not want to be lumped in with those people and number two, I did not
want to be in front of the cameras because that is not a good place for me to be.
P: One of the developments that achieves quite a bit of importance at this time, the
Florida legislature and Tom Feeney [Florida state representative, 1990-1994,
1996-present; speaker of Florida House of Representatives, 2001-present] begin
to worry that they are not going to have the Bush electors, so the Florida House
votes 79-41 to go ahead and, in effect, seat the Bush electors. What was your
response to the legislature taking control of this issue?
K: The truth is that I had so much going on with what we were doing that I did not
pay a lot of attention to that and the other thing was, I could not figure out what
they were doing. I could not figure out how they were doing the calculations of
time to do what they were supposed to be doing. I got confused, but I think John
Little understood that. I did not have time for that.
P: Do you think that was a bad precedent to set? If you determine that you do not
like the potential results, you can change the procedure. The vote had not even
been resolved in the courts yet.
K: Strategically, that was the right thing to do. The thing that I never really
understood was you have all the guns facing the Supreme Court of Florida. You
have the decisions from the lower courts that they are reversing, you have the
legislature training their guns on the court, and they still went ahead and did what
they did. It was very unusual. Let us face facts. Courts have to be sensitive to
what is going on in the world they exist in. They do not have an army, they do
not have their own source of funding or anything else. It begins to get a life of its
own. They had to have a bunker mentality inside the Supreme Court of Florida
because they were in a bunker. The poor bastards rarely got out of it. They
must have been there 24-7. The canvassing board was doing this and the
Secretary of State was doing that, the legislature is doing this. I ran into Feeney
[when] I was walking across the street. He came by. I had met him once before.
He said something about what they were doing. I said something back to him. I
thought what they did was good, you had to keep the pressure up. We had
determined that our client was right in what she was doing. Our job was to make
sure our client's position prevailed if she was right. That was what we were
dedicated to doing.
P: Let us talk about that. The oral arguments before the Florida Supreme Court.
When you went into this, did you have any idea how they might rule?
K: As I said, we had been told that there was a 7-2 vote against us. I did not believe
P: Florida Supreme Court?
K: Yes. Florida Supreme Court. 7-2 against us. We were told and I said I did not
P: But there are only seven justices.
K: 5-2, sorry. No, [it was a] 6-1 decision against us.
P: Ahead of time?
P: I talked to Justice Gerald Kogan [Florida Supreme Court, 1987-1998] and that is
what he said. He said there had been sort of a general rumor and that he
understood that in fact that is what had happened, that they had basically already
K: That is not bad, necessarily. The fact of the matter is, is that the court has the
case in front of them. The purpose of oral argument is to ask questions. A trial
judge cannot do that because the witnesses and the evidence have not come
before the court. The appellate court has everything in front of them already.
P: Are you arguing now before the United States Supreme Court, in effect?
K: No. I am an eternal optimist, I guess. When someone said to me it was 6-1
against the secretary's position, I could not conceive of how that could be the
case. [I] could not conceive of it. I thought that was crap.
P: So you were surprised at the final 4-3 decision?
K: Yes. [I was] shocked. It was more than 4-3 was it not? The first one was 7-0.
P: Yes, but this is the December 8, 4-3 decision which backs the Gore appeal and
reverses Sauls. This is the contest.
K: I thought they were going to affirm him, I really did. I did not see how they could
do what they did. The way it worked in live time was, you did not have the time.
In other words, you had to stay disciplined and you had to stay focused. Literally,
when I walked away from the Supreme Court of the United States the first time
and got in the car, on the way back to the airport I had briefing books for Sauls's
case. As soon as I was out of it, that was that. Other people talked to the press
and that kind of thing, but we did not have time for it. On the plane, all we talked
about was that, all the way back, and started to do that. When we finished
arguing in front of the Supreme Court of Florida, immediately what we were
spending time doing at that point was thinking about finishing up the various
cases. We had the Clark case, we had the Lewis case, and having to go back to
the Supreme Court of the United States. There was at least a possibility that was
going to happen. I did not think it would happen. As a matter of fact, when
Friday rolled along, the Friday before the final Tuesday, one piece of good news
rolled in after the other. The chief judge of the north district of Florida, federal
district judge, former United States attorney, [I] cannot remember his name, he
threw out the challenge [to the military ballots?]. That was the other thing that
bugged me too. At the same time we were listening to all of this self-righteous
tripe that was issuing from the [Naval] Observatory, from Mr. [William] Daley
[campaign manager for Al Gore in 2000 election] and the vice-president, there
were these independent lawyers from New York who were trying to throw out all
the military ballots. [They] filed in federal court. Of course, the Gore people had
nothing to do with this. It was just a bunch of nonsense. They walked in, they
were white, they had long orangish-yellow bills, they had webbed feet, their tails
moved back and forth and they quacked, and they were claiming not to be ducks.
It was ridiculous, it was an absolutely ridiculous thing. That was going on.
Judge Maurice Paul [U.S. District Court] ruled in our favor, Clark and Lewis rule
in our favor.
P: Ultimately, on those issues, so did the Florida Supreme Court.
K: Right, exactly. Sauls had ruled in our favor. Now we were set up for the final
thing. We were all sitting around the room. People said, what do you think? I
said, based on the briefs and other [things], I think we have probably won.
Really, I think we are fucked. Then, what was it? 2:00-3:00 in the afternoon, the
decision came down. But we had already started working on the United States
Supreme Court thing.
P: Were you surprised in that 4-3 decision that they decided just to count the under-
K: I was surprised that nobody was focusing on some sort of central court issue. In
the election, when President [Bill] Clinton [U.S. President, 1993-2001] first ran,
he said, it is the economy, stupid. He focused all his guns on that. I thought that
everyone had gotten their shots in the first time against the secretary, but what
you had was a severely divided court. The word that we were hearing on the
street was that there was screaming and shouting going on in the court on the
second decision, that there was a heavy amount of division. I was surprised that
[Leander] Shaw ended up on the side that he did. I always felt that he did that,
because even irrespective of how he actually might feel, he thought that it would
not look good. If the thing was going to win anyway, there was no reason for him
to have to be on the winning side and to have both black justices on one side of
the thing. I think that he came across for aesthetic reasons. It may have been
close in his mind. That was the right thing to do. You do not want to make it
appear that all black people are going to view this one way whether they were on
the court or not. I was surprised that people did not pay attention to the details.
[I have forgotten names] several times today so far, I cannot remember names to
save my life. Basically, what happened to David, [he] just got backed up against
a wall in that second argument. Basically, on a one-two punch you had the Chief
[Justice Rehnquist] and Scalia move in for the kill. The chief says, Mr. Boies,
how long are you going to count these votes? Scalia leans forward in his chair
and says, until you win, right? Then you stop. Scalia leans back in his chair and
then Scalia says, Mr. Boies, how many under-votes were there? He says,
35,000 or something like that. He says, how many over-votes were there? He
says something like 111,000. Scalia says, and how many votes was this election
decided by? 530. Scalia just leans back in his chair, puts his hands down, and
that is it. It is over. [End of Side B1] How could you, in an election that is close,
only count the under-votes? As a matter of fact, when the count was going on,
one of the problems that we were finding out [was] that in, for instance, Pinellas
County, which is on the west coast of the state across from Tampa, they were
counting under-votes and over-votes. It was just a mess. Judge Lewis had
ordered that no one talk about anything, but information was leaking out hither
and thither. It was a mess, but at the end of the day, it is ironic that the very thing
we had wanted the Supreme Court of Florida to do is what the United States
Supreme Court did. They could have let them continue this count, they could
have. I think what they realized was, that was not going to make the end result
any more palatable for anyone to swallow. It was important to at least stop the
bleeding from going on. It would have been awful. There would have been
people battling, people would have been filing cases [saying], you are counting
this vote and not counting that vote, this is here and that is there, this county has
not done this. It would have been a mess, chaos. One thing that always
interested me [was] Judge [David] Souter's [Justice, U.S. Supreme Court, 1990-
present] dissent. If this court had allowed the state to follow the course indicated
by the opinions of its own supreme court, it is entirely possible that there would
ultimately have been no issue requiring our review. Political tension could have
worked itself out in the congress following the procedure provided in the 3 USC
15. Amazing to me. Here we are in the year 2000 and it is being suggested that
we should run the risk of running into a new term without a president of the
United States. Both of them are sort of still sitting around pretending not to
appoint anybody or talk to anybody. The American people consider that to be
presumptuous. [I do not know] why they consider it to be presumptuous that two
people, one of whom is going to be the president of the United States, should
start forming his government at some point. We are never allowed to do that.
That is completely presumptuous. In the normal course of events, we have an
election on November 4, 5, [or] 6. There is Thanksgiving holidays, there is the
holiday season of Hanukkah and Christmas at the end of the year. These guys
are beat to crap and the new president takes office on January 20. There is not
enough time to form a government anyway. We still have not completely formed
the government we have in there now and someone is talking about the
possibility of allowing this to run up to inauguration day or beyond? I do not
understand that. That amazes me.
P: That is interesting because that is a dissenting opinion.
K: Right. He thought that was okay. He is a very intelligent man.
P: Let me go to the very strident dissent by the Chief Justice Charlie Wells. There
has been some speculation that this was personal [and] perhaps directed toward
Barbara Pariente. Can you comment at all on why that dissent was so
K: Wells's dissent? A couple of things [are] interesting about that. Wells is chief
justice by an accident of the role of time. You are aware of that, correct? That
was good for a number of reasons because he was the chief justice of the court.
I think that, as far as [making] Florida look good, that was helpful. The second
thing is, I really think that the chief and [Major] Harding probably had moved quite
a bit in terms of flexibility to be able to come out with a 7-0 decision the first time.
I think they just became completely frustrated when they thought that the court
was going to fall on its sword the second time. I just think that he figured that
enough was enough. They say that Pariente and Anstead are a group. If you
look at the rest of the court, Justice [Peggy] Quince [Florida Supreme Court,
1998-present] at that time, really had not been there long enough to know. I
think she was still kind of feeling her way. Her background is criminal law. Fred
Lewis is a classmate of mine. Justice Lewis, a very, very honorable, decent
human being, [a] bright capable man with a big heart. That is why Lawton Chiles
[FL governor 1991-1998 (died in office)] appointed him, I think. At the end of the
day, I think for Justice Lewis it was really difficult. I think he really thought, let us
just focus in on what is important here. What is important is what is the right
result in the election. Wells and Harding are more conservative and less
passionate about things. Wells reminds me a lot of Lawton Chiles in that Lawton
Chiles had seen a lot and done a lot. After a while, there is nothing new under
the sun and so nothing surprises you. Justice Lewis [has] a lot of youthful
[exuberance], in terms of new tenure on the court, and [tries] to do the right thing.
Barbara Pariente is very bright, Anstead is bright. I do not think that Wells did
that to take a shot at anyone on the court. I think he did that because he thought
that the majority was wrong and he did not want the Florida Supreme Court to
P: Nor did he want, in a practical sense, the Florida legislature to try to take after the
K: That is correct. Exactly.
P: If the positions had been reversed in this case, if the votes were different and
Bush were bringing the contest. Would they have voted the same way?
K: I would hope so. The question you are really asking, is when it comes to this
kind of thing, is it the law or [is it] who you want to be elected that controls [your
K: That is why I get back to what I said in the very beginning which is that election
reforms have to be done before [the] election takes place. Let me ask this
question: can you really be fair if an issue comes up as to whether or not your
wife committed a crime, if she is going to be punished? How can you do that? It
is really very, very difficult. The Supreme Court of the United States, I do not
think had any choice but to do what they did. People that basically supported
Gore say the Supreme Court of the United States were a bunch of whores and
the people that backed Bush say the Supreme Court of Florida were a bunch of
whores. Neither court is a bunch of whores by any stretch of the imagination.
I had never been before the Supreme Court of the United States before. It was
the most fascinating experience I have ever had. I probably will never have
anything like it again in my life, simply because they are so smart. They are
around each other so much. They understand that the Supreme Court of Florida
is important in terms of Florida and in a way, it is important in terms of history, but
it does not make history every day. The Supreme Court of the United States
does, and they know it. They know they are special, they know they are unique,
they know they make history, and they also know that if five of them sign
something one way, a government will change. Troops will stay in their barracks
and everybody will accept it. That is a lot to know. It is a lot of power to have.
They are so smart. Any other court you appear in, you usually get a break during
an argument or something where someone will go off on a tangent. Every time
they ask you a question, they have already figured out, if you do this, they will do
that, you do this, you will do that. You have to think ahead. Every time they ask
you a question, you have to think ahead as to what it is and where it is going.
Then you have people like Scalia and [Anthony M.] Kennedy [U.S. Supreme
Court Justice, 1988-present] and [William] Rehnquist [U.S. Supreme Court
Justice, 1972-present, Chief Justice of the U.S. Supreme Court, 1986-present]
and [Sandra Day] O'Connor [U.S. Supreme Court Justice, 1981-present] who ask
quick, incisive questions. [Ruth Bader] Ginsburg [U.S. Supreme Court Justice,
1993-present], as I was listening to her, she was basically trying to remind her
conservative colleagues of the restraint that they always talk about. She was
doing it very, very nicely. She has a beautiful melodious voice to listen to. The
edge of that pillow was as close as she was to where I was standing. It was that
close. They were just higher. Our table was right up against their bench. I think
they had to come out where they came out. [The decision they made was the
one they had to make].
P: You were not at all surprised that they stayed the Florida Supreme Court
K: No, I kept wondering when they were going to do it.
P: One of the issues was, and we mentioned this briefly, but I am going to bring it
up one more time. They were a little bit upset for two reasons. One, the Florida
Supreme Court did not respond to the earlier remand and secondly, they did not
ever deal with the issue of standards.
K: The Supreme Court of Florida thought they had. When they handed down Harris
2, they thought that Supreme Court 1 had made it clear that it was just a Florida
law decision. They missed the point. They missed the point of that language that
I read to you in the fifth or sixth page of the cert petition. That is key. It was key
language. The first Harris case, we think it was the first Bush v. Gore case. We
were talking about the same issue on it. [Reading from transcript?]: Mr. Klock,
will you address Justice Breyer's question of a moment ago, if there were to be a
uniform standard laid down, I suppose at this point by the Leon County circuit
court or any other valid way in your judgement, what would the substantive
standard be? You would start, I would believe, with the requirement that the
voter has when they go into the booth. That would be a standard to start with.
The voter is told in the polling place and then when they walk into the booth that
[what] you are supposed to do with respect the punch cards is to put the ballot in,
punch your selection, take the ballot out, make sure that there are no hanging
pieces of paper attached to it. A hole is what constitutes a legal vote which the
Democrats make much ado about, presumes that is a legal vote no matter what
you do with the card. Presumably, you could take the card out of the polling
place and not stick it in the box and they would consider that to be a legal vote.
The fact is that a legal vote, at the very basics, has to at least be following the
instructions that you are given and placing the ballot in the box. [End of transcript
reading?] They paid no attention to that language from the first cert petition.
They got all wrapped up in what they thought was right and what should be done.
When you ask that question, the ultimate answer is, it would not have come up
the same way probably, but the ultimate answer is that it is best not to resolve
these things after the fact. They should be fixed beforehand. I guess I would
answer that I think the Supreme Court of Florida would do the same thing. They
P: One of the issues that comes up in the Gore appeal is that they do not know how
the Supreme Court can demonstrate irreparable harm to Bush, since in fact he
has already been certified the winner.
P: Scalia replies that if they counted votes that should not be counted and it
changed the election that would certainly be irreparable harm.
K: The issue was, was [whether] the patient [was] going to be kept alive beyond
December 11. That was the issue. The answer is no.
P: While we are on that, do you see the December 12, safe harbor day, as
sacrosanct? I know that Boies before the Florida Supreme Court accepted the
December 12 date, but when he got before the United States Supreme Court, it
is December 18. There is no December 12 law-statement in Florida law.
K: No, it comes from the federal safe harbor.
P: How did you all deal with the federal safe harbor date?
K: It is a bootstrapping kind of an argument. The fact of the matter is that what the
Supreme Court is saying is that the Florida legislature has a right to avail itself,
the people of Florida have a right to avail themselves of the safe harbor and if
they lose the safe harbor, that is irreparable harm. That is how they came to the
point they did. I think you could have come up with any number of different days
and you could have had this thing string itself out further. I think that on Sunday
morning the Supreme Court of the United States made a decision that it was
going to stop, they were going to stop it and it was not going to create any more
damage and it was going to get resolved.
P: Was there in your mind a constitutional crisis at this point?
K: No, but there would have been. It was going south quickly and it was not going
to get any better. As I said, you could end up in a very plausible situation where
we had a Republican president and a Democratic vice president.
P: Let me bring up something that I presume you would not like me to bring up.
During the process of appearing before the Supreme Court, you got the justices'
names mixed up.
K: All the time, I still do it all the time. [I have done it] during our interview I did it
several times. I am not good with names.
P: Was that particularly painful under those circumstances?
K: No, not really. I was so goddamn tired, it really did not make any difference. As
it has turned out, it is a distinction. It does two things. People remember my part
in it because of that. I did not even realize that I had done it. When I went into
the case that morning, John and I talked and I said I was not going to use their
names because I was really tired.
P: You are not supposed to anyway, they tell you that in law school.
K: That is right. The point was is that I was not going to. I just got all wrapped up.
There was this one train of questions that were going [on and] I got all tied up in
it. I did not even pay attention. It was just a filler. Using a name was just a filler.
I did not even realize at first what they were laughing at. I do not know. It is
really kind of hard. All things being equal, some people thought I did it on
purpose, which obviously I did not. If I could go back in history to change it,
would I have? Probably not.
P: How would you assess the performance of Ted Olsen and David Boies before
the Supreme Court?
K: I think the world of Olsen. Olsen has it all. The court defers to him, [and that is]
very important. I watched Judge [Kenneth] Starr [lawyer, special prosecutor of
accusations of scandals of Bill Clinton] argue before the Eleventh Circuit in a
case. Because of who he is, he can take as long as he wants to say something
and they do not interrupt him. [At the] Supreme Court of the United States, no
one is in that category. Olsen has the ability, they respect him and they let him
talk, they let him answer the question they way he wants to. His voice is a very
good voice. He is very disciplined, he is very well-prepared. He is superb.
David Boies is an extraordinary trial lawyer. He did, I think, a very, very good job.
He was exhausted, he did not want to do that argument. They insisted he do the
argument. He did a great job, but he had a losing case. The only thing I was
worried about on the Supreme Court of the United States was having the same
thing happen that happened in the Eleventh Circuit, and that was not to have
biased judges who were for their guy but to have people who would buy a certain
argument, who should buy an argument if this is the right argument, not do it
because that is not what they usually do. [That] is the very criticism that people
[have], like that demagogue [Alan] Dershowitz [lawyer; professor; author]. If
anyone ever proved the [existence] of the Napoleon complex, it is that guy.
Dershowitz [was] attacking these guys because they had the audacity to use the
Fourteenth Amendment, which apparently in Derhowitz's mind is the exclusive
province of the left-wing pinkos. Only they may use the Fourteenth Amendment.
It is reserved for their use. My concern was that since the argument basically
was one that was an equal-protection and due-process argument that they would
be inclined not to get near it because it is something that they do not do. They
did not do that, they stepped up to the line.
P: It had not been very effective on appeal to United States Supreme Court, or the
Rehnquist court at least.
K: That is correct, that is right. My fear was that because that was the case, even
though it clearly called out for it here, they would not do it for that reason. That
was the only way I thought we could lose.
P: Boies talks about the reasonable man standard. If you look, for example, at
Georgia law in one county, somebody gets the death penalty, in another county
they do not. When that Georgia case was appealed to the Supreme Court, they
voted 5-4 that it was not a violation of the Fourteenth Amendment.
K: Yes, but that is different because the way it is applied is different from one county
to the other, not the standard you use. What David would probably say back to
that is, wink-wink, we mean the standard. They articulate the standard, but if you
are in one county, the guy is going to be guilty because he is black and in
another county, he is not going to be. At least there is a standard. The law
cannot handle every result of original sin, but in Florida there was no standard,
none. It did not make any difference. You did not have to get to the venality of
man because there was no standard for them to be venal about. They said,
okay, fine guys, vote. Who do you like? I like Gore. Well, good. If a mosquito
relieved itself on one of the ballots, those people in Broward County would say
that was a Gore vote. That is just the way it was. They did not see an
indentation on a ballot that did not vote for Al Gore.
P: Earlier you mentioned that you thought the decision was 7-2 not 5-4. Is that
based on the fact that seven justices talked about a lack of a uniform standard?
K: Yes, of course.
P: Why is this decision per curium?
K: I do not think that there was enough there for anyone to be able to get behind the
opinion. My understanding of writing an opinion is that it has got to be at least
mostly yours. The majority opinion obviously was put together. It is my
somewhat immodest view that the concurring opinion started out as a majority
opinion that they could not agree with, that was why they had gone with the
majority opinion they way they did. I think the concurring opinion was meant to
be the majority opinion and that is what they were going to rule.
P: The dissent from Justice John Paul Stevens [U.S. Supreme Court Justice, 1975-
present] was pretty strong and he mentioned, if I can quote him...
K: [He] was fighting mad.
P: The decision was wholly without merit, he thought the court should not have
taken the case in the first place and then he goes on to say that the identity of the
loser in this presidential election is going to be the nation's confidence in the
judge as an impartial guardian of the rule of the law. Did that statement have any
validity for you?
K: I just thought the man was mad. There is a great scene in an HBO movie that
was done on Mike Tyson [professional boxer]. There is this scene where Don
King [boxing promoter] comes sweeping into Mike Tyson's living room. He was
wearing one of those flamboyant fur coats. Tyson is standing there reading his
divorce complaint. Don King says, let me see that thing! Oh, he said, Michael,
did you use the c-word with her. He said, well, yeah, from time to time. He said,
you can tell, she is really mad. He said, you can always tell when they have
used the c-word. I just think Stevens was mad. As a matter of fact, again,
Stevens is in his seventies, he can do what he wants to do. He was mad.
P: Justice Breyer had a more moderate response. He said also that they should not
have taken the case. He made a proposal that the case should now be
remanded back to the Florida Supreme Court and they should recount under a
K: What uniform standard? They were going to send it back to the Florida Supreme
Court to develop a uniform standard which would clearly violate Section Five. It
was late when he wrote that.
P: I am not going to take too much more of your time, but I want to quote one of
your favorite people, Alan Dershowitz. He said that the decision was an
egregious error and the single most corrupt decision in Supreme Court history.
K: Yes, I read his book, part of it. It is my view that Alan Dershowitz has finished
being a professor and finished being a lawyer and what he really wants to do is
to have Larry King's [CNN interviewer] job when he falls over dead [from his]
eighteenth heart attack [over the] microphone. I think Dershowitz is simply
promoting whatever the next thing is he wants to do, which obviously is going to
be outside the practice of law. For him to say something like that about the
Supreme Court, he is [brazen]. We took our hits from the Supreme Court of
Florida, but no one is going to convince me that those judges were corrupt, that
they did not rule in a way they thought was correct. They felt strongly about it,
they may have been emotional about it, but they were not corrupt and they were
not motivated by corrupt motives. Alan Dershowitz is a disgrace, he should be
disbarred as a lawyer.
P: I will read you another more reasoned comment by Judge Richard Posner
[Judge, 7th Circuit, U.S. Court of Appeals; author of Breaking the Deadlock: The
2000 Election, the Constitution and the Courts]. He said the decision was a
pragmatic one, but not a legal one, but it did save the nation from a looming
K: I would disagree with him this far. Here is the point. We are looking out the
window. The only issue to be determined is whether or not the plane is going to
hit the ground. As we watch the plane descend from the top of that cloud and it
is now at a thirty-five degree angle towards the earth. We may be drawn to
watch it crash by some sort of morbid curiosity but to answer the question of
whether or not the plane is going to crash, do we have to watch until it hits the
ground? No. Was it a practical decision? Yes. Did the Supreme Court wait until
the last possible moment, when there was no other legal recourse and they had
to absolutely decide the decision due? No. What did they do? They weighed in
the balance what was in the best interest of the country. They knew the plane
was going to crash, but they had the opportunity to at least be able to divert it
from hitting a school, to just hitting them. At the end of the day what they had to
do was decide who could better handle the hit? The reputation of the Supreme
Court or the country? The fact of the matter is that legally, they were right.
Procedurally, they could have remanded it back down to the Supreme Court of
Florida and said, please confirm that you have not counted the over-votes and
that it is not possible to do a complete recount of the state of Florida within the
next ninety-six hours. At the end of the day, I believe that they thought that the
people of the state of Florida had an absolute right to rely on the safe harbor. If
the contest was not resolved six days before, then what would have happened is,
it would have been decided in the United States Senate and the United States
House at the end of the day. It would not have made a goddamn bit of difference
what the Supreme Court of Florida did in counting or not counting votes. I think
that they were justified in deciding the case then. They could have waited longer.
I think Posner is incorrect in saying that it was not a legal decision. It was not
done at the last possible moment. It did not follow Ernest and Julio Gallo's [wine
makers] old rule about [drinking] no wine before its time. What the Supreme
Court of the United States was not willing to do was to decide that one right,
which was the right of the people of Florida to take advantage of the safe haven
had to yield to another right, which was the right of the morbidly curious to see
how screwed up the country could be before the issue was resolved. I think
Posner was wrong about that. Dershowitz is wrong about almost everything.
P: How has this whole thirty-six days changed your life?
K: I get recognized a lot on streets and at parties. People know they have seen me
before but do not know why. I always tell them, let us see, my dad is in the real
estate business. I go through this long list of things. That is one thing that is
different. I think that in terms of my law firm, those of us that worked so hard
together on this case have an even closer bond than we had before. I think that
it has been very good in terms of the firm's reputation as a litigation firm. I also
think it has helped to establish our reputation as people that when we take a
case, we fight it all the way through, irrespective of where our own personal
views may be or may not be. One last thing, very practical, is that I am still not
caught up yet, [from] being out. The problem was not just the thirty-six days,
after the thirty-six days it was about three weeks before you could function as
human beings again. You would wake up after two or three hours and not know
why. You really did not know what was going on. There was a lot of stuff that
happened afterwards in terms of clean-up. The whole thing took about two and a
half months. It was disconcerting.
P: How do you feel about being part of the most extraordinary presidential election
in American history?
K: I am more concerned about the fact that the right guy got into the White House in
my mind. I am a Democrat. As time has rolled out, it has become clearer and
clearer to me that it was the right thing. I do not think that the country would
have been best served. Vice-President Gore is obviously a very honorable
person. People that tend to wrap themselves in the white toga the way he is, I
think, basically view themselves as being good people. At the end of the day,
[with] all the issues that we have going on right now, [you would have trouble] if
you do not have the ability to delegate and rely on people. George Bush [said],
let them say the vice-president is running his government. He does not give a
crap. What he cares about is what it is that he is doing. Is he my kind of guy
personally? No, probably Gore, in a lot of ways, is more. I think he was the right
guy who won.
P: Do you think he actually won the election based on the New York Times, Miami
K: Oh, yes, the only way that [Bush] could have lost the election was if his lawyer's
arguments had prevailed. That was the only way [Gore] could have won the
election. As I said in the very beginning, there were [about] twenty-five different
scenarios and out of them, Bush wins in twenty-three of them. I think he would
have won anyway. I do know this. I believe that what the Secretary of State did
made the difference in the election. Without her actions and standing by what
she did and doing it the right way every step of the way, we would not have had
the result we did. I think that she is the real hero in all this. I think as time goes
on, that will be demonstrated. She is a very unique lady.
P: Is there anything we have not discussed? Is there anything else of major
importance you think we have not discussed?
K: I do not think so.
P: I want to thank you very much for your time, I appreciate it.
[End of the interview.]