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Title: Interview with Gerald Kogan
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Title: Interview with Gerald Kogan
Physical Description: Book
Language: English
Publication Date: November 27, 2001
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Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
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Bibliographic ID: UF00067371
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 13

Table of Contents
    Copyright
        Copyright
    Interview
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the University of Florida









FEP 13
Interviewee: Gerald Kogan
Interviewer: Julian Pleasants
Date: November 27, 2001


P: This is Julian Pleasants and I am in Miami, Florida, with Justice Gerald Kogan. It
is November 27, 2001. Justice Kogan, you were appointed to the Florida
Supreme Court in January of 1987 and then you became the chief justice in
1996. Is that correct?

K: That is right.

P: You were appointed by Governor Bob Martinez [Florida governor, 1987-1991].
What is your political affiliation?

K: I am a registered Democrat.

P: Why do you think Governor Martinez appointed you to the court?

K: At that time, there were two openings on the court and the judicial nominating
commission sent up three Democrats for each one of the positions. From a
political standpoint, if he [was] looking for a Republican, there were not any for
him to choose from. Of course, he is bound by the nominations sent to him by
the judicial nominating commission. As I say, there were six Democrats. No
matter who he appointed to the two slots [they would be Democrats].

P: Who was the other one he appointed?

K: Steve Grimes [Florida Supreme Court justice, 1987-1996; chief justice, 1994-
1996].

P: He later became chief justice as well.

K: Right, just before myself.

P: During this [presidential] election [of 2000] chaos, you were, as I understand it,
on television over seventy times with CNN, ABC, CBS, all the networks.

K: Over seventy times with all the networks, even local TV stations. I did a couple
of pieces for the BBC [British Broadcasting Corporation]. I did radio interview
shows all over the country, even one from Bogota, Colombia, where they called
me on the phone and asked me if I would do the interview. I said sure. What
happened was the program in Bogota was in Spanish. What they would do is
they would have their listeners call in, they would translate the questions from
Spanish to English. I, of course, would reply in English. They would translate it









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to listeners in Spanish. By the way, it was one of the most intelligent programs
that I was on all during the campaign. The questions were excellent, the people
who were asking [them] had really good insight into the American election and
really wanted to know what was going on. They were all nonpartisan in nature,
which is more than I can say for many of the appearances I made on TV during
that period of time.

P: I recall that you were on several programs where they had a Republican and a
Democrat and all they were doing is presenting their partisan viewpoints. I think
you stated at one point that there was a lot of misinformation presented on these
talk shows.

K: There was a great deal of misinformation that was presented. Mainly, it was on
those programs where you had one Republican and one Democrat. Each one
had their own political agenda, each one [was] trying to make their own political
point. A lot of them had a tremendous amount of misinformation. The bad part
about it was [that], depending upon the station that you were on, the program
that you were on [determined] how much misinformation there was. I found that
all through the entire process, in my opinion, the most thoughtful and most
impartial presentation was the Jim Lehrer [television journalist] News Hour on
PBS [Public Broadcasting System], simply because they brought on people who
were really experts and people who had no partisan position to take. Also, his
staff would call you beforehand and they would sit down and spend a lot of time
with you going over the issues, finding out what your answers were, coming up
with follow-up questions and everything else. When the program began, they
essentially knew what the guests were going to say and then Jim Lehrer would
be able to ask intelligent questions of the guests that were on the program. I
found my appearances on that were the most impartial, fair, and [that was] the
most in-depth type of programming. Then there are other networks who I can
name or I do not have to name who basically go on sensationalism. That is, they
are waiting for the guests to start arguing with each other and fighting with each
other. I was on one program on CNBC, the Geraldo [Rivera] [journalist] show,
where one night was absolute chaos, because the two party members were
engaged in loud, vociferous arguments. I just said, I am not going to answer any
questions or participate while these people are arguing the way the are. A lot of
the networks tried to do a fair and reasonable job, but I basically felt that the
people who were asking the questions were really not that well-prepared. [They]
certainly [were] not as well-prepared as Jim Lehrer was. I also felt that on other
programs, they were just literally looking for as much arguing as they possibly
could find. It was like a show with them. I do not think those programs in any
way really enlighten the public as to what was really happening.


P: Did they ever try to correct misinformation?









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K: It is hard for me to tell.

P: I remember you were on Chris Matthew's Hardball [journalist and news show in
Fox News Network] and you came up with a similar set of circumstances and I
believe that was the occasion when Jerry Falwell [televangelist] said, about the
Florida Supreme Court, that it was a well-known fact that it ranked fiftieth out of
fifty states.

K: Basically what happened on that particular program, I appeared with Orrin Hatch
[U.S. Senator from Utah, 1977-present] who was at that time chair of the Senate
Judiciary Committee. Literally within minutes after the Florida Supreme Court
rendered its opinion in the case, Orrin Hatch said, [the] first thing out of his mouth
was, Judge, is that not the worst decision you have ever heard of? I said to him,
well, I do not know, Senator, because that decision was only handed out twenty
minutes ago; I have not even seen a copy of the opinion, so I really cannot
comment on the contents of it. I said, have you seen it? He said, no. I said,
well, Senator, how can you make that statement? Maybe within the confines of
the court's written opinion, they would answer all the questions you may have.
He said, something to the effect of, I am sure they could not do that. At which
time I said, look Senator, let us be honest about this: you know that you folks
who do not get along with the courts say, if the court renders an opinion you do
not agree with, that the court is making the law; if they render an opinion with
which you agree, the court is interpreting the law. Now, you have got to be
honest with the people that are out there. He just went ballistic. Chris Matthews
cut it off. I was then followed up on that program, immediately thereafter, by
Jerry Falwell, who made that famous comment and by Rick Santorum [U.S.
Senator from Pennsylvania, 1995-present; U.S. Representative from
Pennsylvania, 1991-1993], who was the junior senator from Pennsylvania. His
comment was, thank God Kogan is not on that court anymore, because God
knows what kind of opinion we would have out of it. Of course, I had not even
rendered an opinion as to the court's opinion or anything the court's opinion was
based on, which begins to show you the knee-jerk reaction of political
functionaries during this particular campaign. In a lot of ways, the American
people were not treated to what should have been an objective analysis of
everything. That is what I tried to do all the way through this thing.

P: Some authors argue that the Republicans won the public relations battle. I want
to follow up on that. I know justices read the papers, read editorials, listen to
television commentary. How does that impact you and your thinking?

K: You have to understand one thing. In relation to the Florida Supreme Court, a lot
of people do not understand how these justices are selected. These are not
political hacks who are being given payoffs to pay back their political activity.
They are not running in a popular election. These are people who are in a









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system of merit selection and retention. These are persons who have to appear
before judicial nominating commissions, who are thoroughly interrogated, their
backgrounds are investigated. Then three of them are sent up to the governor to
be appointed. The governor has to appoint from that list that is sent by the
judicial nominating commission. It is all supposed to be nonpartisan. You are
not even supposed to know the political affiliation of the people whose names go
up. Theoretically, even if a governor wants to play politics, the public should not
worry, in general, because if the judicial nominating commission has done its job,
you know that usually any one of the three are qualified to sit on the court.
These are the type of persons you have on the court. They are basically immune
from the political consequences of the decisions that they make. They are very,
very conscious of that fact. Many times, you will rule one way and you will just
bite your tongue because your political instinct tells you, I ought to go ahead and
rule the other way. This does not make any sense. If it is the law, it is the law
whether you like it or not, [and] that is the way you are going to rule.

I found as a general rule, most justices were not at all impressed by what was
going on in the news media. I have always said that the type of judges you
should have are judges who can make a decision regardless of the political
consequences to themselves. In other words, [they can] make the decision that
they feel is right and proper in a particular case and not worry about what is on
the outside. My experience over the years on that court was exactly that. Now,
when you are talking about the trial court level, I have seen many situations
where trial court judges have gone with the political winds, so to speak.
Fortunately, it did not happen on the [Florida Supreme] Court. I knew that up
there on the Court they were going to do what they felt was right and proper.
One thing that I tried to convey to the media and through the media to the
American populace in general was that these people are no dummies and no
political hacks. They are very, very smart, intelligent people. While I cannot
predict the exact outcome of what they are going to do, I know what the law is in
the state of Florida. The law in the state of Florida is that whenever possible, you
make every vote count because that is important. The [Florida Supreme] Court,
in prior decisions, had ruled exactly that way. That is, wherever we can ascertain
the real vote of the people, that is the way we should do this. That is what should
be counted. That is why a lot of people could not understand how the [Florida]
Supreme Court would rule one way in the [Al] Gore [unsuccessful Democratic
presidential candidate, 2000; U.S. Vice President, 1993-2001] v. [George W.]
Bush [U.S. President, 2001-present; Texas governor, 1995-2001] but [rule
differently] when it came to the absentee ballots that were in front of Terry Lewis
[Leon County District Court Judge, 1988-present] and in front of Nikki Clark
[Judge, Leon County Circuit Court]. [They could not understand] how Nikki Clark
and Terry Lewis essentially ruled against the Democrats and said, no you have
got to count all the absentee ballots. Again, I pointed out that [it] goes along with
the court's philosophy, so it is not inconsistent with their ruling in the main case,









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Bush v. Gore.

P: The Florida Supreme Court denied the Democrats brief for the butterfly ballot in
Palm Beach County. They made at least four decisions against Gore. I do not
know if you were on the Court when the case Boardman v. Esteva came up.
That was a United States Supreme Court case that said the legislature had to
have the final authority in determining electors. I think that was in 1996.

K: I would have been on the court.

P: A better case is Beckstrom v. Volusia County.

K: Yes, I am familiar with that. That was the sheriff's race in Daytona Beach,
Volusia County. As a matter of fact, I believe I wrote the opinion on that case.
The philosophy is [that] you go with the will of the voters. That is how you decide
that case. You do not just go about upsetting extreme cases, basically that is it.
This is what the voters wanted. That is what you are going to uphold.

P: Part of that decision is that the Court ruled that the real parties and interests were
the voters and that the right to vote is the right to participate. What is really going
on here is that the Florida Supreme Court is concerned literally about who won
the election. In other words, that the voter's choices would be vindicated. Is that
an influence on the Florida Supreme Court in this 2000 series of cases?

K: Sure, there is no question about it. In other words, [they look at] what the Court
[has] done in the past. That has been the Court's philosophy, that is the will of
the voters is paramount. Therefore, you have to do everything that you can to
ascertain what the will of the voters may be, regardless of who wins the election.

P: Another thing that you did which was kind of interesting, from your point of view,
you did some live commentary on the oral arguments before the Florida Supreme
Court. Explain how that worked. I presume that must have been extraordinarily
difficult.

K: If I recall, this was for MSNBC. I would sit there in front of the TV monitor,
listening to the arguments before the Court, which were televised. That is how
they would ask me questions about what was going on.

P: That worked out pretty well.

K: Generally, it did work out pretty well.

P: While we are on that subject, in regard to the Sunshine Law [Florida open-
records law], what impact have televised court arguments had on jurisprudence?









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K: Let me say this to you. When I was chief justice, all of our oral arguments were
being televised. Prior to my becoming chief, they were not being televised live.
What they would do is they would make a videotape of it, they were stored in the
archives at Florida State University Law School. This is something that Sandy
D'Alemberte [President of Florida State University, 1993-present; FL state
representative, 1966-1972] started when he was the dean of the law school
there. When I became chief justice, I seized upon the opportunity to do two
things. Number one, to put all of our oral arguments and all of our court
ceremonies, for that matter, on the Internet. We used the same cameras that we
had used to record for TV tape to use for broadcast over the Internet. Also, I
found out about the statewide satellite, so I managed to get the people who
operate the satellite there is a certain committee appointed by the legislature
that does that to put all our oral arguments on the state satellite. It was
beamed into 1.3 million homes in Florida. How many people actually watch it?
We will never know, because we do not have a Nielsen [television] survey as
they have for the sitcoms. It made people aware that they had access to see
what was going on. We also perfected the graphics, where you not only have the
names of the attorneys and the name of the case, but also you could put down
the important issues, in graphics, that the court had to decide. We also started
what we called a case-of-the-month project for our school system. Each month
we would pick out one of the oral arguments that would be heard by the court.
We would send it to the appropriate school authorities, and then history teachers
or civics teachers or government teachers could have their class review this in
advance, and then watch the oral argument. When the opinion would eventually
come out, [they could] see how the court ruled and how they agreed or disagreed
with that. I think that has had a great impact. We started what we called a
docent program for schoolchildren [aged] fourth grade through the twelfth grade.
Kids would come to the court, mostly during the legislative session when the
schools would send up busloads of kids. The kids would come to the court, we
would pick seven of them and put them up on the bench as justices. We would
have a couple of them representing one side, a couple representing the other
side. We even had them deliberate out loud after they heard the arguments so
that everybody in the audience would know the basis for their decision and then
we would have the other kids who were in the audience participate. [We asked,]
do you agree with the Court? Do you disagree with the Court? By this time now,
they have had over 40,000 school children since 1996. That is in the last five
years. [They] have actually been in that Supreme Court courtroom, participating
in this program. I think it has done a great deal, just from the letters that we get
from the kids. They would tell us how much they enjoyed the program. [We have
received] other comments from people who have seen the Court in action on
television. I think we hit the zenith when this was broadcast nationally over
every network during the election, so they could see what goes on in the
courtroom and could understand what is happening there. Most people do not
have the faintest idea what takes place in an appellate courtroom. Contrast that









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to the U.S. Supreme Court who finally agreed at least to make an audiotape
available after the arguments were over. The U.S. Supreme Court is years
behind the thinking in this regard. The reason they are years behind is [that] they
are giving reasons today [as to] why they do not want to have arguments
broadcast, [which are] the same reasons that we in this state considered twenty-
five years ago when we adopted the procedures. We have learned now that
none of those horribles that we talked about twenty-five years ago ever came to
pass. The U.S. Supreme Court stubbornly refuses, using arguments that are
twenty-five years old, to have these broadcasts. Twenty-five years ago when we
decided to start broadcasting these things, I am talking now not only in appellate
arguments but also trials in Florida, I had the same misgivings that the U.S.
Supreme Court has today. But over the years, I realize that these were not
horribles, that the benefits far outweighed what we thought were problems. Most
of the problems really never came to fruition at all.

P: What were examples of some of the potential problems?

K: We were afraid, for example, that judges would start playing to the cameras. We
also were afraid the attorneys would do the same thing. We were afraid [that] in
jury trials, it would have a chilling effect on jurors, a chilling effect on witnesses
that testified at the trial. We discovered over a period of time that none of this
came about. We also developed a technique to the point where the cameras
literally in most courtrooms were almost invisible. People did not even know that
they were there. The judges and the attorneys became so used to them being
there that it really did not affect us at all. On the other hand, we felt that when
people watched an entire trial being broadcast or saw an entire appellate
argument, it gave them a good idea as to what goes on in the courtroom. Of
course, when you go to your regular TV stations, they give you thirty-second or
less sound bites. Then they are completely distorting what has taken place in the
courtroom. I have been involved, when I was an attorney in trials, where if you
watched the evening news and looked at the little sound-bites, you would think
the trial was going all one way. Whereas, in reality, when you are in the
courtroom, it is going all the other way. That caused a problem down here. I
remember back in the case of the McDuffie trial we had over in Tampa where
Arthur McDuffie had been killed, allegedly, by police officers who beat him.

P: Those were the Tampa race riots?

K: No, those were the Miami race riots. The trial was moved from Miami to Tampa
to prevent what happened. I would watch the evening news and I would say, this
is impossible. The people in Miami, by watching these little sound-bites, are
going to be convinced that these officers are guilty and ought to be convicted.
When you sat in the courtroom, you realized that the reverse was true. They
were not going to get convicted based upon the testimony at trial. Consequently,









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people thought a great injustice was done. Everybody knew, you watched TV,
you read the newspapers, these guys were guilty as sin. I even sat down with
one of my friends who was a top reporter in one of the local newspapers. I said, I
read your columns. You are going to have problems, because you know as well
as I do there is going to be an acquittal on this case. The people back there
based upon your columns and the TV coverage are expecting a conviction. He
said, yes, I know that. The only thing is, he said, my bosses at The [Miami]
Herald want it written this way.

P: That is a good point. Do you think overall that both the Florida press and the
national press were fair in their coverage of Florida?

K: That is a very broad question. Fair in what regard? Fair in reporting the facts of
the case? I think most of them tried to do the best they could in reporting the
facts of the case. Of course, newspapers for the most part, with the exception of
a few really good newspapers around the country, the average newspaper and
the average TV station basically wants readership and viewership. You get that
by being sensational. You get that by having big headlines, you get it by having
these little sound-bites, you get it by a broadcaster's literally enticing the interest
of the audience with flash sayings. A typical example of this is what has been
going on since September 11 [terrorist attacks]. [If] you take a look at most of
your news channels on TV, it is like they are trying to put the fear of God into the
American people. They are trying to scare them to death when they should be
trying to be reassuring and comforting and everything else. That is the way the
media operates. The media, of course, will deny this, but they know exactly
what they are doing.

P: One of the issues that comes up is how they portray Florida as inept and that the
people are too dumb to vote. They say things like "Flori-duh." I think you pointed
out that this could have happened in any state in the country.

K: Had this race been this close in California or New York or Illinois for example,
you would have had the same problems in that state. This is not the only state
that uses punch-card ballots. You would have the same problem there. It just
happened it was this close in Florida, therefore all the flaws in the Florida election
process which is the same as the flaws in any other state, I can assure you -
just came to the forefront. To me, the entire problem in this election occurred in
Palm Beach County with the butterfly ballot. I have seen that ballot, [and] there
is no question in my mind that that ballot is very, very confusing. People say, it is
the old folks living in the condominiums or it is people who are not that literate. I
know a lot of people who are highly intelligent who were confused by that ballot
up there. It was extremely confusing. Had it not been for that butterfly ballot, Al
Gore would be president of the United States today. There is no doubt in my
mind at all. Even Pat Buchanan [unsuccessful presidential candidate, 1992,









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1996, 2000] who got those 3,500 votes said, those are not my votes, not from
those precincts. Those are Democratic precincts.

P: One issue that comes up that is relevant to my initial question is that Georgia had
twice as many over-votes and under-votes as did the state of Florida. Plus, as
far as I know there was no real fraud in this election, whereas in Chicago, in
Texas, and Louisiana, that is pretty traditional. Do you think Florida got bad
national press because of the butterfly ballot?

K: I do not think there was any fraud at all here. I cannot talk about [incidents where]
they said there were police officers and state troopers stopp[ing] voters on the
way to the polls. I do not have any knowledge of that other than what I read in
the news media. I do know that what people thought was a foolproof voting
system really was not. I never used to [ look at my ballot], even though we used
the punch-[card] ballot down here. My wife always did, she always looked to see
if there were any hanging chads. In the latest election we had, I did. I took my
ballot out and made sure that everything was punched all the way through. It is a
terrible system. I lived in Tallahassee, [and there] we had a much better system.
You filled in the circle, then before you left the polling place, they ran it through a
machine. If there was a mistake or a mis-marking, then it would reject the ballot.
Under Florida law, you can get up to three ballots if you ruin a ballot. That is a
lot better system than this. I understand that next year, [for] our elections, [we]
are supposed to have new types of equipment in place.

P: Let us talk about that Palm Beach ballot. The case Fladell v. Palm Beach County
Canvassing Board was appealed to the Florida Supreme Court. They ruled that
in fact that ballot was not illegal. Did you agree with that decision?

K: The ballot is not illegal per se. In other words, there were little arrows that
allegedly went from the names to the hole. If you look on Al Gore's line you had
two spaces, one for Al Gore and one for Pat Buchanan who was on the other
page across from Al Gore. Yet they were in the same lines. You either voted
twice for Al Gore, which you did not do or you picked one or the other to poke
and you could very easily have poked Buchanan's unless you saw the little arrow
there. There is no question in my mind [that] it is confusing.

P: But it is not illegal.

K: No, it is not illegal. Technically, it could have been a lot better. Was it
confusing? I think it was confusing. I do not think the Court really wanted to get
into that problem. Suppose you said the ballot is misleading and confusing.
What kind of a remedy do you fashion? Do you go ahead and say, well, we
throw out all those ballots, we do not count them. Again, the Court does not want
to do that because the Court says, you have to go to the intent of the voter. Then









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the problem is, what do you do? Do you have all those people who voted on
election day come back and say only those who voted on election day are
allowed to come back and re-vote for president? What about people who may
now change their vote? Maybe they want to see another candidate win the
election. It is very, very difficult.

P: There is really no legal remedy.

K: Well, the court could fashion a remedy if it wanted to. I think we said in
Beckstrom that we could fashion a remedy if necessary.

P: In that case, they did revote, but that was an election for a local sheriff, not a
presidential election.

K: That was a different story in Beckstrom.

P: Very early on, the Bush people began the process of trying to get these issues to
the federal court. The argument by the Democrats was that the state election
law was the fundamental law controlling elections in the state of Florida. And
that decision should be left to either the canvassing boards and/or Florida courts.

K: The Florida courts have the job to interpret the Florida law. The U.S. Supreme
Court has said that. In this election, they chose not to follow their own principles.

P: Can a state legislature act under federal constitutional directives in a manner that
is inconsistent with their state constitution or a Florida Supreme Court judgment?

K: This goes to a jurisdictional matter. There are some basic premises here. Your
state law and your state constitution cannot take away rights from the citizens
that are given to them by the federal constitution or U.S. Supreme Court law.
However, there is nothing to prevent your state laws and state courts from giving
their citizens greater rights than the federal constitution does. When the
legislature turns to federal law as opposed to state law, [this] question arises.
What is the constitutional issue here? The constitutional issue is, are they
depriving their citizens of certain rights that may be guaranteed under Florida law
which are not granted by federal law? That is an issue that you have to consider.
I think what you had here was, you had a Republican-dominated legislature who
were going to do everything in their power to have George Bush win the election
in the state of Florida. I do not think that they really cared how they went about
doing it, as long as they could find some excuse somewhere, even under the
federal constitution to allow them to do that. It breaks down to that. It is pure
politics and I do not think that most of these people that were involved were
interested one iota in what the law is and what the law should be. They just
wanted to win this election.









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P: The Republicans and Barry Richard [attorney for George W. Bush in 2000
election] filed a restraining order against the canvassing boards. When they
argued that, it is the first mention we have of the violation of the Fourteenth
Amendment and the violation of the First Amendment. We hear it then and we
do not hear it again until Bush v. Gore? Why do you think that was the case?

K: I do not know. You will have to ask Barry Richard.

P: The Fourth District Court, the Eleventh Circuit Court of Appeals, all voted against
[the Republicans].

K: That is right.

P: Every other federal court did not see a Fourteenth Amendment issue, is that
correct?

K: That is right.

P: The Eleventh is a very conservative court, as I understand, and they voted
something like 8-4.

K: I do not remember, what it was. But, the fact of the matter is, it all boils down to
[this issue of] who is going to win this election.

P: When we begin the process, there is an early decision by Judge Donald
Middlebrooks. Would you comment on his decision to deny Bush's injunction to
stop the recounts?

K: He is on the Federal District Court for the Southern District of Florida.

P: What about his decision? Generally, what he said was, it is a state, not a federal,
matter.

K: I agree with him.

P: He ruled that there are always going to be discrepancies. You have sixty-seven
different counties, you have different ballots, you have different canvassing
boards. That is to be expected. This is not anything unusual and not anything
that provided him any remedy. Do you think he was on target there?

K: I think he was correct in his ruling.

P: The process that the Gore people go through has been criticized. One individual
I talked to had urged Gore to go from the protest immediately to the contest.









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Comment on whether you think their legal strategy was flawed or not.

K: I cannot say that because I do not know what their internal thinking was in that
regard. That is something that you really have to ask the attorneys who
represented him as to why they did that. They would be in a better position than
I would to comment on that.

P: Dexter Douglass [attorney, represented Al Gore in 2000 election] had advised
the Gore people to go directly to the contest. They refused to do so partly
because they decided that it was a matter of public opinion and they thought if
they could get Gore into the lead, everything would change. Plus, they really
thought that in the four counties they could get enough votes to put Gore in the
lead.

K: It turned out they could not.

P: The downside of that is a loss of time, so that once they get into the courts,
December 12 looms.

K: Hindsight is always better than foresight. If we would have done this, if we would
have done that. At the time they made the decision, they felt apparently that that
was the right decision to be made and that was the right way for them to
proceed. I cannot fault them in that regard.

P: What is the advantage of the contest?

K: The advantage of the contest is that you are really putting the thing right on the
line as far as the merits of the election is concerned.

P: Here a judge would make the decision, so you would not have all these
canvassing boards, you would not have all of these intimidating rallies, it would
be put into the court.

K: People trying to break down the door at [David] Leahy's [Supervisor of Elections,
Miami-Dade County; member, Miami-Dade County canvassing board] office.
That type of thing.

P: Is that not still a risk? I guess a lot depends on the judge you draw, is that
correct?

K: That is true. That is very, very true.

P: One judge might decide, as did Judge Sanders Sauls [Judge, Florida Circuit
Court], he did not see it Gore's way.









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K: No, he did not see it Gore's way.

P: What about the activities of Katherine Harris [Florida Secretary of State, 1998-
present] in terms of her decision making? Do you think she was following the law
and was nonpartisan?

K: Look at it from this standpoint: what would she have done if the counties could
not have gotten their votes in on time, if there were certain problems that they
had? By following her logic, she would literally disenfranchise voters in a number
of counties in the state of Florida by her own act. Again, if I am sitting on the
Florida Supreme Court, I am saying, wait a minute lady, you have to let the
voter's votes count. You cannot just go ahead and say I am exercising my
administrative authority and disenfranchising those voters because their
supervisors of election did not get the results to me on time. Obviously, the law
does not contemplate that happening.

P: By statutory law, if there is a recount, theoretically, there ought to be time to
complete the recount.

K: Absolutely. You have to, as long as it is within reason. Even so, you have to
say, what is the basic premise? The basic premise is, every vote should count
and the voter should not be disenfranchised for something that is outside the
voter's control. In this particular case, it would be that the supervisors of election
did not act as fast as the Secretary of State said they should act under her
interpretation of the law. Under her interpretation of the law, [she is] not going to
accept these results. You cannot allow any public official under any
circumstances to disenfranchise the voters of a whole county like that.

P: A lot of Democrats have particularly criticized her for certifying the votes at 5:00
Sunday, as Judge Terry Lewis gave her the option to do, when they had never
been open on Sunday. Had she waited until Monday, the Palm Beach County
votes would have been in, because they were two hours late. Does that seem
exceedingly partisan to you?

K: Let me say this to you. Katherine Harris is a Republican. Her interests are in
getting George W. Bush elected president of the United States. Therefore I
would suggest that anything she does in regards to an election situation of this
type is subject to being considered partisan on her part.

P: Would a Democratic Secretary of State done the same thing?

K: Probably so, had they been turned around and Gore had been ahead. Probably
so.









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P: Let us talk about the military and overseas absentee ballots. There are several
cases of overseas ballots not being counted, then the Bush people go back and
in nine counties they ask them to reconsider. When they reconsider, they will
count ballots that technically violate the law. Those ballots either were not
postmarked in time or did not have a signature. A couple of them were sent by
fax. How does that impact this whole process? When they talk about Katherine
Harris, they are talking about strict adherence to the law that says, after seven
days, the votes have to be certified. Now, they are saying there needs to be
some flexibility and they do not want to prevent our military men from voting. Is
there a legal or moral problem here?

K: There is definitely a moral problem here. You have two standards. The
underlying theory behind all this is [the desire for] George W. Bush to win this
election and [they were] going to do everything we possibly can to see to it that
he wins the election. Even if we have to cut it off at 5:00 on Sunday and even if
we have to say, recognize the absentee ballots even if they came in late, even if
they came in unsigned, even if they came in on a form otherwise proscribed by
law. Of course, it is contradictory. There are no two ways about that. You have
to remember the issue here is who is going to be elected president of the United
States. Damn what the law says. We use the law if it suits us and if it does not
suit us we are going to ignore the law. After all, we have something very
important at stake here.

P: Were those overseas votes illegal?

K: I did not see them, but it seems to me that if you do not conform with what the
law says, those ballots should not be counted.

P: The court wrote they were in substantial compliance.

K: That is a way to get around it if you want to. No question about that.

P: The Gore people state that Katherine Harris should not certify while recounts are
going on. That case goes before Judge Terry Lewis. This is the Lewis-1
decision. In that decision, he makes a strange ruling in that Katherine Harris can
exercise her discretion. It is a little difficult to understand what he meant by that.

K: You cannot exercise your discretion if you are going to disenfranchise voters. By
insisting that she have those results in by a certain period of time and if not, she
is not going to count them, [that] disenfranchises voters through no fault of the
voter.

P: He did not seem to think there was much of an issue here, because once the
votes are certified, Gore can contest the election. Of course, at that point the









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Gore lawyers did not want to go there. A lot of people thought that this was sort
of a hasty decision.

K: Terry Lewis does not make hasty decisions. Terry is a very good judge. He is
very smart, he is very, very thoughtful. I am sure he did what he felt was right,
[and was] not being motivated by political considerations.

P: In a very interesting turn of events, Joe Klock [attorney representing Katherine
Harris during 2000 election] files a suit with the Florida Supreme Court on
Katherine Harris's behalf to stop the recounts. I always thought that was an
unusual strategy for the Republicans to take. What was your reaction to that?

K: Again, [they were basing their actions on] who is going to be elected president of
the United States, and what is necessary to get that person elected.

P: The Florida Supreme Court is going to get involved. I have found different points
of view here. Some people tell me that the Florida Supreme Court reached out
and took this case. Other people said that it came to them through the appeals
process. What was your reaction to the 7-0 decision in Florida Supreme Court-1
on November 16?

K: I thought they were correct in that decision.

P: One thing that was a bit of a puzzle was that, when they determined that the
hand recounts can continue, they left it up to Lewis to determine if those votes
should be counted. Why would they leave it up to him?

K: I do not know what their thinking was in that regard.

[End of side Al]

P: While we are talking about the Supreme Court of Florida, would you talk a little
bit about how they get cases, how they go through the process of arguing the
cases and writing opinions?

K: The court gets cases in many different ways. The court has original jurisdiction
and mandatory appellate jurisdiction where they must take the cases involving
capital cases, involving bond-validation proceedings, and decisions of the public
service commission. Those are cases they have to take. They cannot turn those
down. The others come by petitions alleging a conflict in the lower appellate
courts or a conflict with a lower appellate decision and a Florida Supreme Court
decision. That is not mandatory. The court can accept jurisdiction or not.
Another way a case can get there is [if] it is a question of great public importance.
I think one of these cases or more came that way through the District Courts of









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Appeal. That is, they tell the Florida Supreme Court, there is a question of great
public importance, we need you to decide it. Generally, those are probably
cases of first impression and they will send it up that way without even hearing it.
[They] can just say, we have examined the file, the briefs file in this case. This is
something of great public importance that you ought to hear. There are cases
that involve state officials and their constitutional duties. The court can take
those cases if they want to. The important thing to remember is every one of
these cases has to come to the court by some type of a written petition. Whether
it be handwritten, whether it be typewritten, it has to be initiated that way. The
Court cannot say, we read [about something] in the newspaper, we saw
something on TV, we want to hear that case. It does not work that way. Unless
something is filed in the clerk's office asking the court to take jurisdiction, the
court will not even consider taking jurisdiction.

P: How does the Florida Supreme Court decide if it will take jurisdiction?

K: It takes a vote of a majority of the court to take jurisdiction. At least four justices
would have to vote to take jurisdiction. Once you take jurisdiction, then of course
you set a briefing schedule when the briefs have to be in and everything else.
The case will come in. It generally is assigned to one of the judges to be the lead
judge. That judge's job is to go ahead and prepare an oral argument summary
for the other justices. You can even put down on there that, based upon your
research and examination of the case, you feel that the case ought to be decided
this way. However, every one of the justices gets the briefs beforehand. Every
one of the justices has the opportunity to come up with their own decision on it.
This is all pre-oral argument. Then you go to the oral argument and right after
the oral argument is over, you retire to the chambers and discuss the individual
case. You take a preliminary vote. Generally you assign who is going to write
the opinion, that person being in the majority. That person will go ahead, write
the opinion, and then circulate it amongst the justices. The justices each have
three law clerks, they have interns, there is a central staff. All of these people
read these things, give their input. The justices vote on it on their vote sheets. I
concur, [or] I concur with a special opinion, I dissent, [or] I dissent with an
opinion, I concur in the result only. They have all those options. Of course,
these then go back to conference where they discuss these matters. Sometimes
opinions are changed, votes are changed until you get a majority of four that is
satisfied with the end-product. Then it is put out. You say to yourself, how do
they get these opinions out so fast? Very simply. They are not stupid. They
knew these cases are coming. Right away, the central staff and the clerks are
assigned their research projects. [They] start researching these particular points
that we see are now going on in the lower courts. When the petition is filed, the
court has already begun its work on that. It is not a matter of just seven justices
looking at this stuff. You have three law clerks for each justice. That is twenty-
one lawyers. Then you have your interns, who are usually senior law students at









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the top of their class. Then you have a central staff of eight lawyers. You have
seven justices, twenty-one clerks, you have forty people doing legal work on this
one case, in this situation. That is how they are able to turn it out that fast.

P: There must have been extraordinary pressures on the Florida Supreme Court
because the cases came so fast and there were so many different cases.

K: You can do that when you work day and night and have got forty people working
on it.

P: Talk a little bit about Lewis II. Judge Terry Lewis denies Gore's motion for an
emergency ruling, and permits Harris to certify the election results. Immediately
the Florida Supreme Court put a hold on that. Why do you think they acted so
quickly?

K: They knew that time was of the essence. They would have to [act quickly]. It did
not have the time to go through the usual appeal process.

P: Do you think they ruled correctly on that point so they could hear both sides
discuss what the issues were?

K: No question.

P: Before we get back to the Florida Supreme Court, let me talk about a couple of
other issues. One of the thing that comes up is a court decision that you
mentioned a little bit earlier, involving Seminole and Martin county. In those
counties, the local elections supervisors Sandra Goard [supervisor of elections,
Seminole County] and Peggy Robbins [supervisor of elections, Martin County] let
Republicans come in and put in voter identification numbers. In one case, Peggy
Robbins actually allowed the ballots to leave her office. In the end, Clark and
Lewis both ruled, at the same time, that these votes could not be eliminated,
because you would disenfranchise the voter through no fault of their own. You
would agree with both those statements?

K: Sure, I think both Terry Lewis and Nikki Clark were correct in those opinions.
The Florida Supreme Court was correct in upholding them. They were upheld
under the same theory that the major cases were decided.

P: In discussing this with some other experts, I asked everybody if they thought this
was a violation of Florida election law, to allow people to make these changes on
what essentially amounted to state documents. Is it a violation of the law?

K: The question is [whether] they in any way changed the vote. I would think that if
they did not change the vote, it would be in the judge's discretion to make a









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determination as to whether or not you ought to count them.

P: With Peggy Robbins, they took the votes outside of the supervisor's office. Who
would know whether they had changed them or not?

K: That is the whole thing who is the burden on? The burden is on the person
alleging that something happened. You would have to show they changed the
vote in some way.

P: You would have to demonstrate that the vote had been changed. When we get
to the Florida Supreme Court and the oral arguments, one thing that struck me
about this was the huge number of lawyers that were involved. People were
commenting about this all the time. Why do you think that was the case?
Obviously all of these lawyers could not argue the case. Was this just for show?

K: No, basically what it is, all these lawyers participated in the behind-the-scenes
discussion of the cases, what points ought to be raised, what points ought to be
argued, how you should argue these particular points, so this way you get input
from all these different people.

P: It is a logical, practical way of doing it.

K: Absolutely. Yes.

P: The Supreme Court is going to vote 7-0 to allow these hand recounts. Then they
do something that has been discussed for a long time. They set a specific date,
November 26. Where did they come up with November 26?

K: I do not know. I think they just figured what would be a reasonable time to get
this accomplished and just did it on their own.

P: I read somewhere that they determined that Katherine Harris, by her decision
making, slowed down the recount. They figured that she had slowed it down by
five days and they just added five days. Does that sound reasonable?

K: It sounds reasonable.

P: A question comes up later: by changing the date, do they make law?

K: No, they are not making law. The fact of the matter is [that] you have to
remember, there is a certain amount of common sense that has to be used in
determining a particular issue. When you are dealing with something as sacred
as a person's right to cast a ballot, you cannot just set an arbitrary number and
say, if something is not done by that date, through no fault of the voter, we are









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going to disenfranchise the voter. It is that simple. You just do not do that.

P: The court also took Katherine Harris to task and said that she was wrong about
saying there could be a recount only in case of a hurricane or some sort of
problem with the voter tabulation. Once again, they are going to argue that her
decision on the seven-day enforcement of the certification deadline
disenfranchised voters. At this point, they are pretty consistent are they not?

K: Yes, they are consistent all the way through.

P: Justice [Sandra Day] O'Connor [U.S. Supreme Court Justice, 1981-present] feels
that they did not explain their reason for the November 26 date and later on, she
is going to be upset because she believes they did not respond promptly and
accurately to the United States Supreme Court.

K: Is that the same Justice O'Connor who said that she was not going to retire from
the Supreme Court because she did not want to see a Democrat as president
select her successor? That is my only comment about that.

P: Were you surprised that the United States Supreme Court took jurisdiction at all?

K: I was surprised that they would. I never thought they would take jurisdiction in
this case at all, based on what they said prior [to this], that is elections are a
matter for the states and the state courts to decide.

P: Why do you think they took this case?

K: They wanted George W. Bush to be elected president of the United States. It is
that simple.

P: When the Supreme Court grants the writ of certiori, the argument is made by Ted
Olsen [attorney for George W. Bush in 2000 election]. He brings up three issues.
I would like to get you to comment on the ones he talked about, the three
questions for the United States Supreme Court. Did the Florida Supreme Court
change the election laws after the voting had taken place, U. S. Supreme Court
decision that was 3-5?

K: No, they did not change the election laws. They were merely applying them so as
not to disenfranchise voters.

P: Did the Florida Court violate Article 2 of the United States Constitution that says
that legislators and state legislatures make rules for presidential electors, not the
courts?









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K: That is true, but it is up to the Court to interpret the law.

P: We talked about the nonpartisan nature of the Florida Supreme Court. When
Gore tried to compel Miami-Dade to continue the count that they had stopped,
the Supreme Court ruled against him, although they noted in the opinion that,
once they started, they should have gone ahead. They decided that there was
no remedy. Do you think that was a correct decision? It seems to me that this
now flies in the face of their attempt to make sure that all the votes are counted.

K: I do not know what I would have done if I were on the Court. I probably would
have tried to fashion a remedy.

P: We mentioned what happened in Miami-Dade a little bit earlier. [David] Leahy
and the other members of the canvassing board stopped the count because they
said they did not have enough time to complete the count. Do you think that was
the case or do you think they were physically intimidated?

K: I do not know. You have to ask the members of the board.

P: They said [that] they did not have time to count the 10,500 under-votes, but when
it was finally put in the hands of Judge Lewis and the other judges in Leon
County, they counted them in one day.

K: I know.

P: It would seem to be that they had five days to count them and they decided they
did not have enough time. The United States Supreme Court grants certiori and
then remands the case back to the Florida Supreme Court. Why do you think
they did that rather than make a ruling at that point?

K: I think they wanted to let everybody believe that they were not deciding this case,
they were giving it to the Florida Supreme Court, which would be consistent with
what they said in that past, that election matters are things that are within the
jurisdiction of the state legislatures and the state courts.

P: But in this case what they are doing is prolonging the process and therefore
reducing the amount of time needed during the recounts. Do you think that was
done deliberately?

K: I do not know.

P: Do you think that they assumed that the Florida Supreme Court would rule any
different than they did the first time?









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K: [It is] hard for me to say, because I was not privy to what went on at the Supreme
Court.

P: I am just getting your response to some of these.

K: If you want me to speculate, I will speculate.

P: That is good. Speculation is all we can do with the United States Supreme
Court.

K: That is true.

P: Let us discuss the oral arguments in the United States Supreme Court. How did
you assess the performances of Larry Tribe [legal scholar; author; attorney for Al
Gore in 2000 election] the first time, David Boies [attorney for Al Gore in 2000
election], Joe Klock and Ted Olsen. How did the lawyers do?

K: I did not see and I heard very little of the tape [of] the arguments before the U.S.
Supreme Court. Of all those lawyers, the one that impresses me the most is
David Boies. I know Larry Tribe is a constitutional scholar, perhaps considered
the number-one constitutional scholar in the United States, next to John Healy,
[who] I do not think ever appears in court. He just writes articles and treatises on
that. I would think that Tribe, of those lawyers who actually appear in court, is
considered the top authority. As far as actually performing in oral argument, I like
David Boies. I think he is outstanding. Ted Olsen is good, but I do not think,
quite frankly, he is in the same class as David Boies.

P: The December 4 Supreme Court 1 decision was done per curiam. Why do you
think that was the case? It is very obvious that [Ruth Bader] Ginsburg [U.S.
Supreme Court Justice, 1993-present] and others thought they should not even
have the case. Why would they write an opinion for the court? Why is it done
like that? Do you think this was kind of a compromise?

K: Generally, when you do something like that, you do not want any one justice to
be the one whose name is on that opinion, because then people are liable to say
well, what do you expect from that justice he or she is biased or prejudiced. So
you [write] it per curiam. Basically you do that when you do not want people
taking pot-shots at individual justices.

P: Let us talk about the case that ultimately comes before Judge Sanders Sauls.
For some Democratic lawyers this is a process of getting the case over with
quickly with so they can go ahead and appeal it to the Florida Supreme Court. A
lot of lawyers thought they could not win this case. How would you assess the
performance of Judge Sauls in this case?









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K: I cannot give you a fair, unbiased answer to that, because it was during my
tenure as chief justice [that] we had to inform Sauls [that he had] to step down as
chief judge of the Second Circuit in Leon County because of the manner in which
we felt he was handling the system there. A lot of things came to our knowledge
during that time which would not make me an impartial arbiter of that matter. If
you want to go off the record, I would be very happy to tell you.

P: David Boies asked for an expedited calendar. Do you think Sauls deliberately
slowed the process of the case?

K: I cannot say that he deliberately slowed it. I would like to know why he had the
ballots sent up there if he never even looked at them.

P: The Democrats had proposed sending up the contested ballots in the four
counties. The Republicans said, send them all up here. It was a very intriguing
process. They were in these Ryder trucks being brought to Tallahassee.

K: The news media loved that sort of stuff.

P: It was very dramatic. On December 8, the Florida Supreme Court is going to
overrule Judge Sauls by a vote of 4-3. Were you surprised at that decision?

K: That they overruled him? No, it was not one that surprised me at all.

P: Were you surprised at the closeness of the vote?

K: Yes, until I realized what had happened in that situation. When you look at the
votes of Major Harding [Florida Supreme Court justice, 1991-present] and
[Leander] Shaw [Florida Supreme Court justice, 1983-present; Chief Justice,
1990-1992], it was basically [that they] were voting this way because [they]
figured it is too late to do anything anyway. It would be an exercise in futility to
vote the other way with the majority. I think the only one who tried to make a
point was Charlie Wells [Chief Justice, Florida Supreme Court, 1994-present],
who is the chief justice. I think if those other two justices, Harding and Shaw had
to do it over again, it is just my personal feeling that they probably would have
voted with the majority.

P: Do you think it was a broader majority than 4-3?

K: I think so.

P: It would have been 6-1?

K: I think it would have been [6-1] if they had to do it all over again.









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P: Charlie Wells issued a stinging dissent. I do not know the man, but this seemed
to be a little personal.

K: You have to understand Charlie Wells. People asked me that same question
back when this was occurring and I said, [it] is not unusual at all for Charlie Wells
to issue a stinging dissent. Charlie Wells generally issues stinging dissents.
That did not surprise me in the least. That is just his nature.

P: That dissent was not directed against Barbara Pariente [justice, Florida Supreme
Court, 1997-present] or anybody in particular?

K: No, just the court in general.

P: Now, in this decision they decide to count only the under-votes. Was that a
mistake? Why would you not count all the votes?

K: I do not know.

P: Certainly time is an issue, but there are not that many more votes. 110,000 over-
votes plus another 80,000 under-votes is nothing they could not overcome. In
the decision, they also make, I think, a very clear statement that the standard set
by the state, the intent of the voter, is a reasonable standard, although it is
vague.

K: Actually, when you look at the law, that is what it says, exactly that. You have to
do everything in your power to ascertain the intent of the voter.

P: Some people criticized the Florida Supreme Court, saying they should have set a
precise standard.

K: If they [had] set a precise standard, they would have been accused of making the
law. That really would have given the U.S. Supreme Court an opportunity to
jump on them and say that they were making the law. They just merely repeated
what is in the statute.

P: Either way they went, they would have lost. Since they did not do anything, they
violated the Fourteenth Amendment. If they had done something, they would
have been making law, usurping the power of the legislature.

K: Yes, according to the U.S. Supreme Court.

P: They brought up another issue, which I thought was an important slap at Judge
Sauls. They said that he did not examine any of the disputed ballots, therefore
how could he determine there was not a probability that the outcome would have









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been changed? Do you think that was a fair assessment?

K: I think it is a very fair assessment.

P: In this decision, the Florida Supreme Court was dealing with two things. They
were dealing with the remand from the United States Supreme Court and the
contest issue. According to the majority of the United States Supreme Court,
they never really answer or clarify their initial decision. Do you think that was a
mistake? At one point, somebody said they were so busy, they forgot.

K: It could be. Eventually they did. They sent [it] up.

P: That was too late.

K: I think the U.S. Supreme Court was wrong. I think that in their initial opinion, they
more than adequately explained the basis for it. I think this was the U.S.
Supreme Court again looking for some excuse to take jurisdiction in this
particular matter.

P: It was pretty clear on the remand from Antonin Scalia [U.S. Supreme Court
Justice, 1986-present], that he thought the determination of the case had already
been made by five members of the court.

K: That was obvious.

P: In this decision, is there a conflict between social conservatives and liberal
activists? One person that I talked to accused the U.S. Supreme Court of being
a right-wing activist court.

K: Being charitable, I would have to say it was merely a matter that a majority of the
U.S. Supreme Court were very desirous of having George W. Bush president of
the United States. I cannot put it any simpler than that. I will not call them right-
wing activists or anything like that. I am just saying [that] it is obvious that five of
them wanted George W. Bush to be president of the United States. Make no
bones about that.

P: They are going to immediately stay the 4-3 Florida Supreme Court decision. One
of the issues that comes up is that they want to prevent Bush from suffering
irreparable injury as a direct result of the erroneous decision made by the Florida
Supreme Court. What would be the irreparable injury since Bush had already
been certified?

K: I do not know where the irreparable injury was. I do not know where they came
up with that.









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P: Scalia said that the irreparable injury would occur if they went back and counted
votes under dubious circumstances and therefore the votes would ultimately
change the outcome.

K: Again, they wanted George W. Bush elected president of the United States. It is
that simple. It all boils down to that, the law aside. That to me is what happened
in this case.

P: Let me ask you about the final United States Supreme Court decision that was a
5-4 vote in Bush v. Gore. Do you think that this was, as one scholar said, a poor
model of judicial reasoning? Just leave out the political issues here, let us just
look at it from a legal, academic point of view. Another person said, if there was
anything that was doomed to fail, it was an appeal on the Fourteenth Amendment
to the [William] Rehnquist [U.S. Supreme Court Justice, 1972-present, Chief
Justice of the U.S. Supreme Court, 1986-present] Court, because they had not
been very willing to accept those kind of cases. Now, they are going to rule on
the basis of the Fourteenth Amendment. Do you see any legal justification for it?

K: No. I do not think they ever should have taken jurisdiction to begin with.

P: How do you think the votes broke down? At one point, David Souter [Justice,
U.S. Supreme Court, 1990-present] said, if he had another day, he might have
been able to persuade Anthony M. Kennedy [U.S. Supreme Court Justice, 1988-
present] to come over. Do you think they tried to fashion some sort of solution
and the best they could come up with was the Fourteenth Amendment
argument?

K: I do not know, because I do not know what took place in the conversations
between Souter and Kennedy.

P: I notice that in other Fourteenth Amendment cases, such as a death penalty case
in Georgia two different counties apply the principle differently, but the U.S.
Supreme Court rules 5-4 that that it was not discrimination. Another issue that
comes up is that military voters were treated differently than civilian voters. That
seems to me to be a violation of the Fourteenth Amendment. Military voters who
did not fill out their absentee ballot forms correctly were allowed to vote but
African-Americans in Jacksonville and Volusia County, who left their name or
signature off, had their votes denied. The critics of the court argue there are
some Fourteenth Amendment cases that were not considered.

K: I think it is a mistake to try to look at this legally.

P: Why did O'Connor or Kennedy not put their names on any opinions?









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K: I do not know.

P: Was the vote in your mind 5-4 or 7-2?

K: Saturday, when the Supreme Court put a stay order on the Florida Supreme
Court and it was 5-4 at that time, I knew what the outcome was going to be,
especially in light of Scalia's opinion. To me, it was just ridiculous to go ahead
and even have the oral arguments on Monday, because they had already made
up their minds.

P: They did remand this case to the Florida Supreme Court. At this point, if you
were sitting on the Florida Supreme Court, I assume you would think that the
game is over. It does not really matter what you do with the case at this point,
because the Florida Supreme Court turned it back to the legislature.

K: I do not know if they turned it back to the legislature, but [they] had one day to do
something. [That] included getting recounts and all those things that might be
necessary.

P: The dissents were pretty strong, particularly that of John Paul Stevens [U.S.
Supreme Court Justice, 1975-present]. He made the comment that this was
wholly without merit and the loser was the credibility of the United States
Supreme Court.

K: Absolutely correct. The mere fact that the justices, really for the first time, after
this opinion was issued, actually went around trying to explain to the American
people their decision, is indicative to me that they knew that the jig was up.

P: Justice Clarence Thomas [U.S. Supreme Court Justice, 1991-present] did that,
for one.

K: Yes, he was one who did. I think a couple others on the majority [did also]. They
went around telling everybody that this was not politically motivated and
everything else. They had never done that before. They knew the American
people would look at this thing as just being a sham.

P: Justice Ginsburg pointed that they never reversed state courts. It has been a
very, very seldom event in history.

K: On these issues.

P: On this particular case, by staying the recount, that put this December 12 safe-
harbor date out of reach. Justice Ginsburg says, look, we did that; we were the
cause for that; we cannot, in any way, accept a decision on that basis. Do you









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see the December 12 safe-harbor date as a precise date or is, as David Boies
argued, December 18 just as valid?

K: I do not know. I think you could probably argue, if you [say] every vote must
count [and] you cannot disenfranchise the voters, that you need to do everything
in your power to let every vote count, that you are going to have to start moving
dates around. To have a cut-off, do-or-die date, I submit, is really not fair. We
have to understand that it is not the popular vote that elects the president, it is
the Electoral College. The whole purpose behind the Electoral College, as you
may recall back in history, was that the average voter in the states, when the
Constitution was adopted, was not in a position to know who these candidates
were. We did not have radio, television, newspapers were very, very limited. By-
and-large the population was illiterate. If you could not read, even if you had a
newspaper, it would not help you. The theory behind it was, let us have people
that the voters know, the electors, who really know these candidates and they will
represent the voters and select. Well, that is no longer true today, yet we are
using an outmoded system to elect the president.

P: Should we do away with the Electoral College?

K: I submit absolutely yes, but you are not going to see it happen because [the]
smaller states are going to protest that because then their vote is going to mean
nothing.

P: The candidates will not campaign in Alaska or Vermont.

K: That is right. They usually do not anyway.

P: Justice Stephen Breyer [Justice, U.S. Supreme Court, 1994-present] made a
proposal, and apparently this did not get much support, that what the court ought
to do is remand the case to the Florida Supreme Court to resume the recount
under a uniform standard. That seems to be a rather logical approach to this
issue. Why was there no support for that in terms of legal issues? Legally, could
that be done?

K: You know, when I first got on the Supreme Court of Florida, we had an argument
about a particular principle of law and the justices were unhappy with that
principle that had been in existence for a long time. Then one of the old-time
justices who was sitting on the Court at that time said, the law is what we say it
is. He said, change it if you do not like it, and we changed it. You can literally do
anything you want if you are the court of last resort.


P: Once they speak, that is it.









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K: Then again, how do you fashion a remedy out of chads? When do you count the
chad, the pregnant chad, the dimpled chad, the hanging chad? How do you do
all these things?

P: Let me read you some of the more outrageous comments on the Supreme Court
decisions. Alan Dershowitz [lawyer; professor; author] said it was the single most
corrupt decision in Supreme Court history. Vincent Bugliosi [attorney; author;
prosecutor of Charles Manson case, 1970-1971] called the justices, five of them,
criminals. Are those comments a bit excessive?

K: [Calling them] criminals is a bit excessive. If you use the word corrupt in the
broad sense, by saying people are going to rule against what they personally
believe or know that they should not rule that way, I guess you can call it corrupt.
Dershowitz is known for his colorful language in describing everything that he
comes in contact with. I think to call them criminal is a little bit much.

P: Judge Richard Posner [judge, 7th Circuit, U.S. Court of Appeals; author of
Breaking the Deadlock: The 2000 Election, the Constitution and the Courts] said
it was legally a bad decision, but it was a good, pragmatic decision because he
and others argued that there was a constitutional crisis.

K: You have to understand that Posner is the father of law and economics and that
is what he would say. His philosophy is, if it is not economical, then forget about
it. He is a pragmatist. Sometimes you have to be a pragmatist, but I do not
agree with his law and economics theory.

P: Was there a looming constitutional crisis? Justice Wells made that point in his
dissent.

K: What is a constitutional crisis? A constitutional crisis occurs when a court makes
a decision and the executive refuses to carry it out, or the legislature refuses to
recognize the authority of the court, or the court refuses to recognize the
authority of the legislature, or the executive is involved by one or the other. A
constitutional crisis [is] when everything is stymied because people are not
following the decisions of the court, the decisions of the legislature, or the
decisions of the executive. If it is one branch against the other branch, that is a
constitutional crisis. To me, this was not a constitutional crisis, because nobody
indicated that they would not follow the word of either the courts or the
legislature.

P: The Florida legislature, the House under Tom Feeney [Florida state
representative, 1990-1994, 1996-present; speaker of Florida House of
Representatives, 2001-present] had voted 79-41 that they would in fact appoint
Bush electors. The Florida Senate never acted, but it was pretty clear that had









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the issue still been in the courts on December 12, the Florida legislature would
have appointed Bush electors. Do you see that as a dangerous precedent?

K: I think it is a very dangerous precedent. That is why I do not like the Electoral
College system. Basically, you are saying, the hell with what the voters in this
state want, we are just going to have this election come down the way we want it
by appointing those electors who we feel are going to vote for our candidate.

P: Does the legislature have the constitutional right to do that?

K: I think they may very well have a constitutional right to do that.

P: Even though their slate might disagree from the slate determined by the courts?

K: [That] could be. Hard to tell, I would have to listen to oral arguments on both
sides of that before deciding that issue.

P: Feeney, talking about the 4-3 Supreme Court vote, stated that this was an insult
to the Florida legislature. From what has transpired both before and since, it
seems to me that they are trying to control more specifically who is on the court
and they will probably try to get rid of Harry Lee Anstead [Justice, Florida
Supreme Court, 1994-present] as soon as they possibly can. Do you see that as
a direct threat to what they perceive as a liberal court?

K: This has always been the posture of the Republican-controlled legislature.
Feeney has just pushed it to the nth degree. Feeney does not like the court, he
does not like the court interfering in what the legislature tries to do, he does not
recognize the independence of the judiciary. That is what Feeney is like, even
though he is a lawyer.

P: Some of the legislators I have talked to, and Republicans as well, feel the same
way. John McKay [Florida state senator, 1990-present] for example, thought that
was really extreme. He thought Feeney had overreacted under the
circumstances.

K: He always does. That is Feeney's way to do things.

P: I would like to get your opinion on the report of the Civil Rights Commission. As
you know, they stated that African-American and other minority voters had been
disenfranchised. They gave examples of people who had registered, but when
they got to the polling place, they did not have their name on the list. There was
a state highway patrol that set up a stop near a polling place in Leon County. In
the poorer counties, there was poor equipment. There were not enough
translators in Miami for the Haitian community. What did you think of that report









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and does it have validity?

K: I was not involved in their fact-finding, but obviously if those are the facts, then of
course it is absolutely disgraceful that this happened during this election or
during any election.

P: 14.4 percent of black voters had ballots rejected. Is that simply voter error? Ed
Jennings [Florida state representative, 2000-present] told me that one of the
problems was that they had new first-time voters voting who did not know how to
vote, as happened in Jacksonville, in Duval County.

K: I do not know, because I am not intimate [with the facts]. I have read about this
in the newspaper and everything else, but I cannot say that this is factual or not
because I am not intimately familiar with it. It would not surprise me.

P: I was interested that with all of the problems in the Palm Beach County vote and
the butterfly ballot, ninety-six percent of the people voted correctly. Statewide,
only 2.9 percent of the ballots were invalidated. That seems to me a pretty good
record: ninety-six or ninety-seven percent accurate. It seems that according to
some of the critics of the Civil Rights Commission report, this is anecdotal and is
due to voter error rather than machine error.

K: It may very well be, and then again I have heard that some of the machines with
the punch-card apparatus did not operate properly. A lot of them had not been
cleaned out. They had chads from many other elections that were still in there.
When you punched down, you could not get the chad removed all the way
because there were old chads underneath it. I heard stories like that. How true
that is, I really do not know.

P: Let me get you to comment on election reform. The Election Reform Act of 2001
made a lot of changes. One was the use of provisional ballot. Do you think that
is a good idea?

K: What do you mean by a provisional ballot?

P: If you come and you are not registered at that particular place, you can sign a
ballot testifying that you are a valid voter, then they take it back and check it
against the records. If you are in fact a valid voter, then the vote is counted. The
argument was that people were coming in and were told they were not on the
rolls and that they could not vote.

K: How do you check on that, though? What do you do with the ballot if they do not
put it in the ballot box? How do you determine who they voted for if it is a
touchscreen? That is fraught with all sorts of difficulties.









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P: That is going to be difficult if we go to touchscreens. I do not know how you
would work that.

K: For example, suppose you have a punch card ballot and you punch it out. What
do they do? Do they separate your ballot? But they have to have an identifying
mark on it, so your ballot is no longer a secret ballot. Forget it.

P: Do you think it was a good decision to do away with the punch-card ballots?

K: Absolutely. With all the modern technology that we have[, we can find a better
system].

P: What they now have, according to law, is what they call second-chance
technology. You either have a touchscreen or you have an optical scan and you
have it precinct-based. If you do an over-vote, it will spit it back out.

K: This is what we had up in Tallahassee, same type of thing.

P: Another thing that comes up with this particular court decision is a list of voters'
rights and responsibilities. In listing the responsibilities, that the voter should be
well-prepared and know the candidates and be polite and all of this, a lot of
African-Americans say, that is intimidating, that they are trying to prevent them
from coming to the ballot box.

K: I cannot comment on that, because I am not African-American and I do not know
how that would affect me if I were. It does not seem intimidating to me in my
status. I think something like that can be very, very useful and informative for
voters.

P: They changed the law from clear intent of the voter to the fact that the voter
made a definite choice. Does that help?

K: No. How does that help? Theoretically, we may not have to worry about that,
because if we have a touchscreen for everybody, none of these should be
problems, because when you touch the screen, that records your vote. If you are
back with paper ballots or you are back with an optical scanner where you fill in
circles or if you have punch cards, yes, that can be an issue. Again, I do not
really know what that means. I do not think we are going to have to worry about
that if we go to the touchscreen.

P: In this election, before we get the new technology, there was this question about
voter-intent. There were a lot of over-votes where Gore, instead of being filled in,
was circled, and then the name Gore was written in. It was pretty clear that the
person wanted to vote for Gore, but the machine would not count that. Is that a









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valid vote?

K: I would say it is definitely a valid vote. If the voter's intent is clear.

P: That can only be determined by a recount, because the machine will not count
that vote.

K: If you go to touchscreen, you will not be able to vote twice. It is like on your old
voting machines that you used to have. You could not possibly vote [twice].

[End of side A2]

P: Should criminals be allowed to vote?

K: Why not? They are going to be affected by the actions of public officials the
same as non-criminals.

P: Once you have done your time, the process of trying to get cleared to vote and
get your rights back is a very complicated process in this state.

K: It should not be. It should be automatic. I think in most countries you will find it
is automatic.

P: This reform was not part of the Election Reform Act of 2001. Is it something that
should be taken up in the future?

K: I see no reason why criminals should not be allowed to vote. You have all sorts
of criminals.

P: It is a felony that prevents someone from being able to vote.

K: Even so, if somebody commits a felony, why should not they be allowed to vote?
After all, they are going to be voting on those officials who influence what
happens in their lives.

P: Is there anything that we have not talked about in legal terms that you would like
to bring up and discuss? There are so many issues we could go on and on. Is
there something that is of particular interest to you that we have not covered?

K: No. I think we have covered it all.

P: How has this election impacted your life?

K: You know, I am sixty-eight years old and I have seen a lot of elections come and









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go. I have seen a lot of candidates get elected to office that I voted for and I
wanted in office. I have seen a lot of people get elected to office that I did not
want in office. Really, it has not had any major effect on my life.

P: You did become something of a celebrity.

K: I guess from that standpoint [it had an effect on my life].

P: Was that enjoyable?

K: I enjoyed doing it. After a while it got pretty hectic and I wanted to tell them, no,
forget it, I do not want to do this anymore. My kids are the ones who told me to
keep doing it, because they felt I was doing the American people a service by
commenting on these things.

P: Particularly by commenting on events in a nonpartisan way.

K: Right, exactly. They felt I should keep doing it, so I kept doing it. I felt by-and-
large that the people who interviewed me were really trying to get the true story
out. [There were] a couple of exceptions, but by-and-large they were. The
trouble is that a lot of them were held back because of their time constraints.
They have three minutes to put on a presentation during their news portion and
they had to limit it. That is why I like the Jim Lehrer News Hour because there
they took a great deal more time in going over this.

P: What impact, other than the reform of the election issues, will this election have
on the state of Florida?

K: It will be interesting to see what happens in the gubernatorial election next year.
I do not think it is going to affect the state House and state Senate very much. I
am curious to see what it is going to do in regards to the governor's election
simply because I think there are a lot of angry voters around the state of Florida
who think the election was stolen from Al Gore, who they voted for. They may
very well want to take it out on his brother who they, rightfully or wrongfully, figure
is the one who probably gave Katherine Harris her marching instructions from his
brother. It should be interesting to see what happens, to see what kind of effect
that has.

P: One impact that the elections supervisors have related to me is that, for the first
time, people actually know what they do. They know more about the election
process than they ever did before. The question is, will that translate into more
people voting?


K: No.









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P: Even though it was a very close election where every vote counted, that will not
affect future elections? Why do people not vote in this country?

K: I think people do not vote because they feel that no matter who gets elected to
office, things are not going to necessarily change for the average American. I
think they look upon all public officials as being corrupt in some way. Whether
they are corrupt from the standpoint that they are taking ill-gotten incentives,
financial and otherwise, to influence their votes, they feel that a lot of politicians
will say and do anything to get elected to office. They feel that there are a lot of
special-interests out there who, although they may not bribe candidates, will
invest tremendous sums of money in those candidates and the candidates are
obligated to pay them back in some way. Therefore, they just feel that they have
been disenfranchised. To them, it does not make any difference who they vote
for. What is going to happen, no matter who gets elected to office, is not going to
be of any benefit to the average citizen.

P: Is there any hope for campaign-finance reform?

K: You are not going to see campaign-finance reform because it is not in the best
interest of incumbents to have campaign-finance reform. It is certainly not in the
best interest of the two major parties, the Republicans and Democrats, to have it,
because that is where most of the money comes from and that is how they
finance their national and local campaigns. I would be very, very surprised to
see it. If you do get any, it will just be window-dressing. It will probably be
cosmetic in nature and really not have a true effect on campaigns.

P: One side question. I know you were in the state's attorneys office early in your
career. Were you working with Janet Reno [U.S. Attorney General, 1993-2001]?

K: No. She was with Dick Gerstein. Although I did work with Janet Reno when I
was administrative judge of criminal division on the circuit court here and Janet
was state attorney.

P: The question I have is, does she have any authority at all in this process? She
was criticized for not investigating the civil rights allegations, violations of civil
rights. Should she have intervened?

K: I cannot say that, because I do not really know what evidence was presented to
her. She may have looked at the issue and said there is not enough evidence
here for me to go ahead and have an investigation.

P: Is there anything else that you would like to comment on or bring up?


K: No, nothing I can think of.









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P: Good. On that note, I want to thank you very much for your time and I appreciate
it.

K: Julian, it is my pleasure.

P: Thank you sir.

[End of interview]




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